HomeMy WebLinkAbout26- City Attorney STAFF REPORT ORIGINAL
Council Meeting Date: January 4, 2009
TO: Mayor and Common Council
FROM: John F. Wilson, Sr. Asst. City Attorney
DATE: December 29, 2009
SUBJECT: RESOLUTION...RATIFYING THE RETENTION OF ANDREW I.
ROTH, ATTORNEY AT LAW, BY THE STAFF OF THE SAN
BERNARDINO CITY ATTORNEY'S OFFICE, FOR
REPRESENTATION REGARDING "PC 290 REGISTRANT ..."
MEMO INVESTIGATION.
Synopsis of Previous Council Action:
Not applicable
Recommended Motions:
That the resolution be adopted.
r
Signature
Contact person: John F. Wilson Phone: 5355
Supporting data attached: Staff report, attachment_ Ward: All
FUNDING REQUIREMENTS: Amount: Not to exceed $3,920
Source: Account#001-051-5503 City Attorney
Litigation - Outside Counsel
Finance:
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
SUBJECT
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO, CALIFORNIA, RATIFYING THE RETENTION OF ANDREW I.
ROTH, ATTORNEY AT LAW BY THE STAFF OF THE SAN BERNARDINO CITY
ATTORNEY'S OFFICE,IN AN AMOUNT NOT TO EXCEED $3,920.00, FOR
REPRESENTATION REGARDING"PC 290 REGISTRANT WORKING AT CHURCH
OF THE NAZARENE"MEMO INVESTIGATION.
BACKGROUND
A criminal theft investigation was conducted by the San Bernardino Police Department
involving members of the Office of the City Attorney(Attachment A). On or about October 5,
2009,the City Attorney's Office was notified that members of the staff would be interviewed
regarding the matter(Attachment B). Not knowing who was going to be interviewed, the City
Attorney staff requested that Andrew I. Roth advise them(Attachment Q. Based on the
materials submitted by the San Bernardino Police Department, the District Attorney' Office
determined that there will not be a criminal prosecution in the matter(Attachment D).
The staff members incurred an obligation to Mr. Roth in the amount of$3,920. The
members of the City Attorney staff request payment of these costs by the City pursuant to
1 Government Code Section 995.8 which authorizes the Council to exercise its discretion to
provide for the defense of a criminal action or proceeding brought against an employee
(Attachment E).
FINANCIAL IMPACT
Payment of$3,920 required.
RECOMMENDATION
Adopt the resolution.
1
I RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, RATIFYING THE RETENTION OF ANDREW 1. ROTH,
3 ATTORNEY AT LAW BY THE STAFF OF THE SAN BERNARDINO CITY ATTORNEY'S
OFFICE, IN AN AMOUNT NOT TO EXCEED $3,920.00, FOR REPRESENTATION
4 REGARDING "PC 290 REGISTRANT WORKING AT CHURCH OF THE NAZARENE"
MEMO INVESTIGATION.
5
6 WHEREAS,On or about October 2,2009,the staff of the City Attorney became the subject
of a criminal investigation relative to a portfolio and contents left in the women's restroom on the 6"
7
8 floor in City Hall, including a memo regarding a PC 290 registrant working at Church of the
Nazarene; and,
9
10 WHEREAS,pursuant to the above-described criminal investigation,in early November,the
11 City Attorney staff was notified that"certain members"of the City Attorney staff were going to be
12 interviewed by the San Bernardino City Police Department; and,
13 WHEREAS,prior to and in preparation for the above-described interviews it was necessary
14 for staff to consult with legal counsel and for counsel to investigate and prepare for said interviews
15 and staff did request that Andrew I. Roth,Attorney at Law,advise and represent them, and said staff
have incurred costs therefore; and,
16
WHEREAS, pursuant to California Government Code Section 995.8, a public entity is not
17
18 required to provide for the defense of a criminal action or proceeding brought against an employee,
19 but a public entity may provide for the defense of a criminal action or proceeding brought against an
employee if:
20
21 a. The criminal proceeding or action is brought on account of an act or omission in the scope
22 of his employment as an employee of the public entity; and
23 b. The public entity determines that such defense would be in the best interests of the public
24 entity and that the employee acted,or failed to act, in good faith, without malice and in the apparent
interests of the public entity.
25
and,
26
27 WHEREAS, the above described interviews and investigation concluded without criminal
28
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FAWILSOMcity attomey\RESOLUTION NO.wpd
1 charges being brought against any of the members of the City Attorney staff.
2 NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
3 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:
4 Section 1. The Mayor and Common Council do hereby make the findings required under
5 California Government Code Section 995.8 for the provision of defense of a criminal action or
6 proceeding as to all members of the City Attorney staff.
7 Section 2. The Mayor and Common Council do hereby ratify the action by the members of
8 the City Attorney staff of requesting the legal advice and representation of Andrew I.Roth,Attorney
9 at Law,on the terms and conditions set forth in the letter dated December 28,2009,a copy of which
10 is attached hereto as Exhibit A and by this reference made a part hereof.
11 Section 3. The Mayor and Common Council do hereby authorize payment to Andy I Roth,
12 in an amount not to exceed three thousand nine hundred and twenty dollars ($3,920), for services
13 provided pursuant to Exhibit A from account #001-051-5503, City Attorney Litigation - Outside
14 Counsel
15 SECTION 4. This Resolution shall take effect upon the date of its adoption.
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2
FAWILSONIcity attomey\RESOLUTION NO.wpd
I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA,RATIFYING THE RETENTION OF ANDREW I. ROTH,
2 ATTORNEY AT LAW BY THE STAFF OF THE SAN BERNARDINO CITY ATTORNEY'S
OFFICE, IN AN AMOUNT NOT TO EXCEED $3,920.00, FOR REPRESENTATION
3 REGARDING "PC 290 REGISTRANT WORKING AT CHURCH OF THE NAZARENE"
MEMO INVESTIGATION.
4
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a meeting thereof,
7 held on the day of , 2010, by the following vote, to wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 BAXTER
11 BRINKER
12 SHORETT
13 KELLEY
14 JOHNSON
15 MCCAMMACK
16
17 CITY CLERK
18 The foregoing Resolution is hereby approved this day of 2010.
19
20 PATRICK J. MORRIS, Mayor
City of San Bernardino
21
Approved as to form:
22
JAMES F. PENMAN,
23 City Attorney
24 By:
25
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27
28 3
FAWILSONkity attorney\RESOLUTION NO.wpd
11 1
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�G'YDED W
INTER OFFICE MEMORANDUM
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
TO: MAYOR AND COMMON COUNCIL
FROM: John F. Wilson, Senior Assistant City Attorney
DATE: December 29, 2009
RE: Legal Defense in the Matter of Criminal Theft Investigation Involving the
City Attorney's Office
CC: James Penman, City Attorney
Charles McNeely, City Manager
Pursuant to California Government Code Section 995.8, the City Attorney's staff in the
above-referenced matter hereby requests that the City Council exercise its discretion under
California Government Code Section 995.8 and ratify this defense of the criminal investigation.
It is requested that the ratification include,but not be limited to, the presence of legal counsel
during the interviews of the staff. This request is made retroactive to September 2, 2009.
The names of those specific staff affected are not included in this memorandum to avoid
a violation of their privacy rights.
Jo F. ilson r
Senior Assistant City Attorney
JFW/nc
F:\WILSOMcity attomey\defense request MEMO.nc.wpd
f
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
SUBJECT
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO, CALIFORNIA,RATIFYING THE RETENTION OF ANDREW I.
ROTH, ATTORNEY AT LAW BY THE STAFF OF THE SAN BERNARDINO CITY
ATTORNEY'S OFFICE,IN AN AMOUNT NOT TO EXCEED $3,920.00, FOR
REPRESENTATION REGARDING"PC 290 REGISTRANT WORKING AT CHURCH
OF THE NAZARENE" MEMO INVESTIGATION.
BACKGROUND
A criminal theft investigation was conducted by the San Bernardino Police Department
involving members of the Office of the City Attorney(Attachment A). On or about October 5,
2009, the City Attorney's Office was notified that members of the staff would be interviewed
I regarding the matter(Attachment B). Not knowing who was going to be interviewed,the City
Attorney staff requested that Andrew I. Roth advise them (Attachment Q. Based on the
materials submitted by the San Bernardino Police Department, the District Attorney' Office
determined that there will not be a criminal prosecution in the matter(Attachment D).
The staff members incurred an obligation to Mr. Roth in the amount of$3,920. The
members of the City Attorney staff request payment of these costs by the City pursuant to
Government Code Section 995.8 which authorizes the Council to exercise its discretion to
provide for the defense of a criminal action or proceeding brought against an employee
(Attachment E).
FINANCIAL IMPACT
Payment of$3,920 required.
RECOMMENDATION
Adopt the resolution.
City of San Bernardino
San Bernardino Police Department Attachmnt "A"
Interoffice Memorandum
CONFIDENTUL
To: Charles McNeely, City Manager
From: Keith L. Kilmer, Chief of Police
Subject: CRIMINAL INVESTIGATION INVOLVING CITY ATTORNEY'S OFFICE
Date: October 2,2009
This memorandum is to notify you of a criminal theft investigation potentially involving a
member(s) of the Office of the City Attorney. As you recall, I previously authored a confidential
memorandum regarding a sensitive investigation in the community, which was later distributed
anonymously at the City Council meeting on September 2131.
Prior to the City Council meeting above Teri Baker had reported her portfolio and contents
missing from the women's restroom on the 6a' floor of City Hall. She last took it into the
restroom and later discovered it missing. The portfolio, clearly marked as belonging to her,
contained a number of documents, including the referenced confidential memorandum. A
subsequent canvas of employees on the 6"' floor asking about the portfolio turned up with
negative results. A police report was filed to document the lost/missing/stolen property. Partial
contents of the 'portfolio were subsequently turned over to the District Attorney's Office by the
City Attorney,James F. Penman.
Subsequent investigation has indicated that follow-up investigation in the form of interviews will
be necessary with Mr. Penman and members of his staff, in order to complete the criminal
investigation. It is my intention to contact Mr. Penman regarding this investigative need.
Please contact me with any questions.
Attaclhnalt "A"
THE SBPD IS COMMITTED TO PROVIDING:
PROGRESSIVE QUALITY POLICE SERVICE;
A SAFE ENVIRONMENT TO IMPROVE THE QUALITY OF LIFE;
A REDUCTION IN CRIME THROUGH PROBLEM RECOGNITION AND PROBLEM SOLVING
City of San Bernardino
San Bernardino Police Department Attachment 17
Interoffice Memorandum
CONFIDENTIAL
To: James F. e City Attorney
1
From: Keith . Ki er, C 'e of Police
Subject:' CRIMINAL INVESTIGATION INVOLVING CITY ATTORNEY'S OFFICE
Date: October 5, 2009
Copies: Charles McNeely, City Manager; Scott Paterson, Captain, Investigations
As you are aware,the San Bernardino Police Department is currently investigating a report made
alleging potential theft of personal property at City Hall. At this point in the investigation
detectives have determined it necessary to interview yourself and certain members of your staff
regarding this matter.
Please contact Captain Scott Paterson at your earliest convenience to arrange for these
interviews. He may be reached at (909) 384-5606.
Thank you in advance for your cooperation.
THE SBPD IS COMMITTED TO PROVIDING:
PROGRESSIVE QUALITY POLICE SERVICE;
A SAFE ENVIRONMENT TO IMPROVE THE QUALITY OF LIFE;
A REDUCTION IN CRIME THROUGH PROBLEM RECOGNITION AND PROBLEM SOLVING
LAW OFFICES OF Attartnrent "01
REID & HELLYER SERVING THE INLAND EMPIRE
FOR OVER 100 YEARS
A PROFESSIONAL CORPORATION
ANDREW L BOTH POST OFFICE BOX 1300
AROTHQRHLAW.COM RIVERSIDE, CALIFORNIA 92502-1300 3880 LEMON STREET,FIFTH FLOOR
RIVERSIDE.CA.92501
TELEPHONE(951)682-1771 _
TELECOPIER(951)688-2415 OUR FILE NUMBER
W W W.RHLAW.COM
December 28,2009
James Penman
City Attorney
City of San Bernardino
300 N. "D"St.
San Bernardino, CA 92418
Re: SBPD investigation of City Attomey Staff
Dear Mr. Penman:
The enclosed letter from San Bernardino County Assistant District Attorney Dennis D.
Christy indicates that the District Attorney has completed his investigation and has determined
there will be no criminal prosecution arising from the role played by City Attorney staff
regarding the"PC 290 Registrant working at the Church of the Nazarene"memo (September 2,
2009) from Chief of Police Keith L. Kilmer to Teri Baker, Assistant to City Manager.
At the request of your staff members I was retained as special counsel regarding the
SBPD criminal investigation and requests for their interviews. In that capacity I gathered the
facts, interviewed and advised City Attorney staff members, researched legal issues, arranged and
appeared at four interviews of staff members by SBD investigators Lucas and Kyle, and followed
up with a letter to the District Attorney describing the situation and offering finther cooperation
from your staff.
In providing these services I spent the following time:
October, 2009
13'-26' : Meeting and phone conferences with Client#4..........................1.5 hours
13'- 26'h : Phone and email conferences with SBPD Lucas.........................0.5 hours
13"'- 30' : Client meetings, Clients 1,2, and 3.............................................2.5 hours
27": Advise &Represent#4 at SBPD Lucas &Kyle interview......... 1.5 hours
November, 2009
4": Advise &Represent#1 at SBPD Lucas &Kyle interview...........0.5 hours
Advise &Represent#2 at SBPD Lucas &Kyle interview...........0.5 hours
Advise &Represent#3 at SBPD Lucas&Kyle interview...........0.5 hours
Debriefing#1 ,#2, and#3 .........................................................0.5 hours
Outline and draft letter to District Attorney Ramos......................1.0 hours
Rm&HELLYER
James Penman
December 28, 2009
Page 2
Final edit letter to District Attorney ...................................................0.5 hours
December, 2009
22rd Review letter from Assistant DA Christy............................................0.1 hours
23rd Contact clients re DA will not prosecute ............................................0.2 hours
TOTAL ATTORNEY HOURS OCTOBER,NOVEMBER,DECEMBER.....»9.8 hours
I have not charged for any costs(e.g., on-line legal research, copying, audio recording
tapes,postage.) I have not charged time or mileage for travel from my office to San Bernardino
City Hall where several meetings and the SBPD interviews were held. I have not charged any
time for legal research, opening files, or communications within my office.
My usual and customary hourly rate is $400.00 an hour, so the total owed in attorney fees
for the 9.8 hours billed is $3,920.00. Payment should be made to Andrew I. Roth, Attorney at
Law.
As no further work is required, after receipt of attorney fees I will be closing my files and
terminating my representation of City Attorney staff in this matter.
Portions of my files may be scanned, then each file may be destroyed 30 days after
terminating representation. If any client wishes to have anything from their file, they should
contact me before that time. My files contain four separate audio recordings that I made of the
SBPD interviews of City Attorney Staff, and each client is welcome to a copy of his or her
interview. The rest of the file, other than my notes, are documents already in the possession of
your office.
It was a pleasure to assist your staff in this matter. If I can be of finther assistance, or if
any questions remain, I can be contacted by phone or the direct email address above.
Very truly yours,
REID &HELLYER
A PROFESSIONAL CORPORATION
Andrew I. Roth
Encl: Asst DA Christy letter 12/21/09
Received: Dec 28 2009 03 13am
REID AND HELLYER Fax 9516862415 Dec 28 2009 02:59pm 13000004
i
i
Attactnent 1I9'
P� ti County of San Bernardino
office of the "District Attorney
W MICHAEL A. RAMOS, District Attorney
amr oc
December 21, 2009 ` t"i "
Andrew 1. Roth
Attorney at Law y
Law Officers of Reid & Hellyer `-
Post Office Box 1300
Riverside, CA. 92502-1300
Subject: Your letter dated November 5, 2009
Dear Mr. Roth:
Please be advised that the San Bernardino County District Attorney's Office has completed its review
of the matter referred to in your above-indicated letter. Based on the materials submitted by the San
Bernardino Police Department, the District Attorney's Office has determined that there will not be a
criminal prosecution in this matter. In your letter, you offer to make three employees of the San
Bernardino City Attorney's Office available for interviews by District Attorney Investigators. Given the
aforesaid conclusion, these interviews are unnecessary.
Thank you very much.
Sincerely,
MICHAEL A. RAMOS
District Attorney
By
DENNIS D. CHRISTY
Assistant District Attorney
cc: Clark A. Hansen, C.D.D.A.
303 West 3rd Street, San Bernardino, California 92415-0502 (909) 387-8309 Fax (909) 382-7674
E-mail address: da @sbcda.org Web site: www.district-attorney.org