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Home My WebLink About20- City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: City Attorney report on Political Reform Act City Attorney investigations and prosecutions; policies and procedures followed by the Office on conducting investigations and Dept: CITY ATTORNEY prosecutions. Date: April 28, 2011 Meeting Date: May 2, 2011 Synopsis of Previous Council Action: None Recommended motion: Receive and file. ature Contact person: James F. Penman Phone: 5255 Supporting data attached: Staff Report Ward: FUNDING REQUIREMENTS: Amount: Source: Finance: Council Notes: ��v!vu S L y ,2 Agenda Item No. #20 INTER OFFICE MEMORANDUM c� L"O-Her OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO �`sBeee*ate a.� To: Mayor and Common.Council From: James F. Penman City Attorney Subject: Report on Political Reform Act Investigations, Prosecutions and Related Matters Date: April 28, 2011 Prior to the previous Council meeting the Mayor sent an email to Assistant City Attorney Jolena Grider demanding a written report to accompany this agenda item which was on the Council Agenda for the April 18, 2011 meeting. The Mayor's memo voiced his opinion that such policies should be in writing and should be presented to the Council in writing before this matter is heard. Prior to this unprecedented attempt by a Mayor to interfere with the prosecutorial duties of this Office, which have included providing open session reports to the Mayor and Council over the years, no constraints had ever been placed on this Office by the City's Chief Executive in making such reports. To the contrary,previous mayors have assisted the City Attorney in making these presentations. In 1995, as an example, four Council members walked out of a similar scheduled presentation by this office on this same subject matter after the Mayor vetoed a motion to table the item. All four of the Council members who walked out of that meeting(after voting, 4 - 3 to table the item)were under investigation by the City Attorney's Office for alleged violations of the State's Political Reform Act. Immediately following the staged "walk-out,"the Mayor continued the Council meeting as a "meeting of the whole,"and the report was made. Eight years later, and after being defeated for re-election, two of the Council Members were charged by the California Attorney General, one with 34 Counts of bribery, the other with numerous individual counts of bribery. As a result of plea bargains, both Council members pled guilty to one felony violation each and the other counts were dismissed. The basis for these prosecutions was the original investigation conducted by the San Bernardino City Attorney's Office. Of the two remaining members of that City Council foursome, one passed away before charges Memo to Mayor and Common Council April 28, 2011 Page two could be filed. The fourth admitted during a taped interview to accepting an envelope containing several thousand dollars in one hundred dollar bills in exchange for his vote on a matter pending before the San Bernardino City Council. That Council Member, by then also out of Office, fled the United States and at last report was living outside of the city of Paris, France. At the Agenda Briefing meeting held at 1:30 p.m. on Wednesday, April 28, 2011 Senior Assistant City Attorney Stephanie Easland was asked by the City Manager if the City Attorney's report on this item would be both oral and in writing, despite the fact that such reports, usually termed "staff reports"normally consist of a verbal report to the Mayor and.Common Council accompanied by a written staff report or memorandum such as this one. The aforementioned actions and the recent tabling of an agenda item,by the Council majority, placed on the agenda by the City Attorney's Office in an attempt to correct what might have been the illegal granting of three contracts (and not permitting any discussion of the item prior to making the motion to table)plus the ridiculing comments about this agenda item made to the City Attorney representative at the Agenda Briefing meeting held on the Wednesday prior to the April 18 Council meeting(April 11, 2011) has resulted in this Office concluding that the Mayor and the majority of the City Council do not desire to hear any presentation by this Office on the policies and procedures that are followed relating to Political Reform Act investigations and prosecutions or other investigations and prosecutions by the Office of the City Attorney. Therefore we offer the following report: There are currently four investigations of alleged Political Reform Act violations and/or other misdemeanor violations being investigated by the Office of the City Attorney involving elected officials of the City of San Bernardino. These investigations are being conducted pursuant to the authority of Cal Gov't Code § 91001.5. Two other such investigations involving two different elected officials were recently referred to the Office of the District Attorney for review and possible prosecution. In addition there are presently two alleged misdemeanor violations of the San Bernardino Municipal Code involving non-elected City officials being investigated by this Office pursuant to the authority of San Bernardino City Charter § 55(d). The Office of the City Attorney usually receives twelve to twenty-four allegations/complaints that would be classified as "political corruption" each year. These allegations are investigated and we are pleased to report that the vast majority of them result in the clearing of the officials who have been accused. Memo to Mayor and Council April 18, 2011 Page three Over the past twenty-three years several City officials have been prosecuted as a result of these investigations however, and several others have resigned while under investigation. In addition to the investigation that resulted in the recommendation to file charges against the four Council Members mentioned above, three Council members have resigned while under investigation, one in February of this year; one department head and one Planning Commissioner were successfully prosecuted as a result of investigations by this Office and two department heads resigned as a result of investigations by this office. To date,this year, a City Planning Commissioner has been cleared of an alleged violation of the Political Reform Act as a result of an investigation by the Office of the City Attorney and three City Employees, including one department head have been cleared of alleged violations of the San Bernardino Municipal Code as a result of investigations by this office. One recent investigation has resulted in the review and possible pending revision of certain procedures that may have contributed to errors being made in the processing of purchases contrary to the Municipal Code. The possible procedure revisions and retraining of staff in some of these procedures has been discussed by the City Attorney and the City Manager and corrective steps are in process according to the City Manager. It is the responsibility of the Office of the City Attorney to gather information and evidence that may lead to either the conviction or the exoneration of City officials, elected and appointed as well as others who have been the object of complaints of alleged violations of certain State laws and of the San Bernardino Municipal Code. We, like all prosecutorial offices are constantly mindful of this responsibility and we are as pleased when our investigations result in the exoneration of a public official or other person as we are when an investigation results in a criminal filing. Currently, all City Attorney investigations are conducted under the supervision of Assistant City Attorney Jolena E. Grider, a twelve and one-half year member of the Office of the City Attorney and a former member of the Riverside County District Attorney's Office and Supervising City Attorney Investigator Robert T. Peppler, who is the former Under-Sheriff for the County of San Bernardino (retired) and the former Assistant Director of the United States Department of Homeland Security, Office of Counter Narcotics Enforcement. In addition to the above investigations, City Attorney Investigators are actively involved in many of the several thousand pending criminal cases, 973 Administrative Civil Penalty files currently pending in various stages, and in the investigations of the 119 pending civil cases (less four still on the pending list because either settlement documents or dismissals have not yet been obtained) including the locating and interviewing of witnesses and defendants and the gathering of other evidence in those cases, and serving notices and subpoenas on defendants and witnesses. Memo to the Mayor and Common Council April 28, 20 11 Page four h1 closing, we note that it has been, and continues to be, the practice of this Office for many years to brief the San Bernardino County District Attorney or the Assistant District Attorney on corruption investigations being conducted by the Office of the City Attorney. The reason for these briefings is because many of these investigations,which began as misdemeanor investigations,have ultimately resulted in felony prosecutions by the District Attorney or the Attorney General for the State of California. �I I i i i I i I