HomeMy WebLinkAbout22-Finance CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Barbara Pachon Subject: Request additional funding
Director of Finance for the City Attorney Office for FY
2010-11
Dept: Finance ORIGINAL
Date: August 10, 2011
Council Date: August 15, 2011
Synopsis of Previous Council Action:
February 22, 2011 City Attorney Office Annual Litigation Report (2010) and request for
additional funding in the amount of$450,000.
March 7, 2011 City Attorney Office request for a $450,000 budget increase.
March 7, 2011 City Attorney Office budget increased by $90,000 for legal services.
March 9, 2011 Ways and Means Committee recommended City Attorney Office funding
item be referred back to the full City Council for final consideration.
March 21, 2011 City Council authorized Finance to take a loan up to $410,000 to pay all
invoices submitted by the City Attorney Office for FY 2010-11 and take a budget
reduction from the City Attorney Office FY 2011-12 budget to repay the loan.
April 4, 2011 City Attorney Office requested reconsideration of the 3/21/11 action.
Recommended motion:
A. Authorize the Director of Finance to amend the FY 2010-11 City Attorney Office
budget by appropriating an additional $197,000 from the General Fund
Administrative Civil Penalties budget reserve.
OR
B. Authorize the Director of Finance to amend the FY 2010-11 City Attorney Office
budget by appropriating an additional $197,000 from the General Fund
Administrative Civil Penalties budget reserve and authorize a corresponding budget
reduction to the FY 2011-12 City Attorney Office budget in the amount of$197,000
in order to repay the General Fund Administrative Civil Penalties budget reserve.
Signafure
Contact person: Barbara Pachon, Director of Finance Phone: 5242
Supporting data attached: Staff Report, Attachment Ward: All
FUNDING REQUIREMENTS: Amount: $197,000
Source: Budget Reserve General Fund
Agenda Item No. �
CITY OF S AN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
SUBJECT:
Request additional funding for the City Attorney Office for FY 2010-11.
BACKGROUND:
At the February 22, 2011, City Council meeting the City Attorney presented the annual litigation report and
requested additional funding in the total amount of$450,000 for Outside Counsel and Litigation Expenses for
FY 2010-2011. According to the staff a major justification for the increase funding request was due to a 34%
increase in case load since 2008. Attachment 1 is a copy of the February 22, 2011, agenda item from the City
Attorney Office. After discussion, the City Council voted to send this item to the Ways and Means Committee
for further discussion and to explore options to resolve this budget issue.
At the March 7, 2011, City Council meeting the City Attorney again placed a request for$450,000 of additional
funding on the Council agenda. Again the City Council voted to have Ways and Means Committee discuss this
request and explore options to resolve the budget issue. Attachment 2 is a copy of the March 7, 2011, City
Council Meeting Summary that verifies this action.
On March 9, 2011,the Ways and Means Committee held a meeting and discussed the City Attorney's funding
request and staff presented several findings and options for consideration. Attachment 3 is a copy of the Ways
and Means agenda item#3 that pertains to the City Attorney Office funding request. The Ways and Means
committee recommended that this item be referred back to the full City Council for final consideration.
At the March 21, 2011, City Council meeting the request for increased funding for the City Attorney Office was
considered by the City Council. Attachment 4 is a copy of the March 21, 2011, agenda item and the
information that was presented at that meeting. The approved City Council motion was to: 1) authorize the
Director of Finance to make all payments submitted from the City Attorney Office for FY 2010-11; 2) after the
City Attorney Office current budget appropriation was expended,the General Fund, on behalf of the City
Attorney Office,will take out a loan up to $410,000; and 3) a budget reduction will come from the City
Attorney Office FY 2011-12 budget to repay the loan.
At the April 4, 2011, City Council meeting the City Attorney Office requested reconsideration of the March 21,
2011, City Council action of requiring pay back of the loan from the FY 2011-12 City Attorney Office budget.
Attachment 5 is a copy of the April 4, 2011, agenda item. The approved motion on this item was to table it.
CURRENT REQUEST:
Following the City Council's direction above, Finance has processed and paid invoices that have exceeded the
FY 2010-11 budget appropriations for the City Attorney Office by $410,000. At the end of June 2011,the City
Attorney Office started to submit additional invoices for payment that now total about $154,000 and indicated
there is about another$40,000 of invoices still to be submitted which all total about $194,000 above the
$410,000 loaned amount authorized by the City Council. All invoices that have been submitted are for services
that were authorized and should be charged to the City Attorney budget.
Since these invoices are for services that were received in FY 2010-11 and therefore the liability was incurred at
that time,the invoices need to be processed and recorded in FY 2010-11. Attachment 6 is a letter from the
City's auditors, Rogers, Anderson, Malody & Scott, LLP, which confirms this requirement.
Since the FY 2010-11 authorized loan amount for the City Attorney Office has already been exhausted, Finance
requires the City Council authorization and direction before the additional $194,000 of invoices can be
processed for payment.
FINANCIAL IMPACT:
Finance recommends adding an additional $3,000 to the amount estimated by the City Attorney's Office in the
event the actual invoices when received are higher than anticipated. Adding in the additional $3,000 brings the
total requested amount to $197,000.
In reviewing options to pay the estimated additional $197,000 of invoices,the General Fund Administrative
Civil Penalties(ACP)budget reserve is an option. Since the purpose of the Liability Fund is for paying
Liability Claims and currently the Liability Fund is in a deficit position, there are no excess funds to be
reallocated to pay for these additional invoices.
The most updated estimate of the General Fund Administrative Civil Penalties (ACP)budget reserve for FY
2010-11 is $2,085,400. In order for Finance to process the additional invoices from the City Attorney Office, a
budget amendment approved by the City Council is needed to appropriate additional funds from the ACP
budget reserve. Appropriating an additional $197,000 for FY 2010-11 will reduce the estimated ACP budget
reserve for FY 2010-11 down to $1,888,400.
RECOMMENDATION:
A. Authorize the Director of Finance to amend the FY 2010-11 City Attorney Office budget by
appropriating an additional $197,000 from the General Fund Administrative Civil Penalties budget
reserve.
OR
B. Authorize the Director of Finance to amend the FY 2010-11 City Attorney Office budget by
appropriating an additional $197,000 from the General Fund Administrative Civil Penalties budget
reserve and authorize a corresponding budget reduction to the FY 2011-12 City Attorney Office budget
in the amount of$197,000 in order to repay the General Fund Administrative Civil Penalties budget
reserve.
ATTACHMENT
CONTINUED ITEMS
Police
Continued from February 7, 2011
18. Resolution of the City of San Bernardino authorizing the use rental of a
Managed Power Solution for the City of San Bernardino Police Department's
Headquarters facility from Odyssey Power Corp., of Anaheim, California. (See
New Backup Attached) (Cost to the City - $152,684 from Equipment and
Maintenance Account) (Backup distributed on February 7, 2011, Item No.
12,) All Wards
Approved
MOTION: That said resolution be adopted.
Adopted 2011-43
END OF CONTINUED ITEMS
STAFF REPORTS
City Attorney
19. Annual Litigation Report (2010) and request for additional funding for outside
counsel and litigation expenses. (See Attached) (Cost to the City - $450,000
from General Fund) All Wards
No Action Taken
MOTION: That the Annual Litigation Report (2010) be received and filed;
that additional funding of$300,000 for Outside Attorney Services
and an additional $150,000 for Litigation Expenses be authorized;
and that the Director of Finance be authorized to amend the fiscal
year 2010/11 City General Fund Budget to reflect an increase of
$300,000 to Account No. 001-050-5503-0000-0006 and an
increase of$150,000 to Account No. 001-050-5177-0000-0006.
Approved
MOTION: That the matter be referred to the Ways & Means Committee
to find a funding source.
City Clerk
20. Discussion and possible action concerning calling a Special Election to fill the
vacancy of the 2' Ward Council seat (See Attached) Ward 2
(Item Continued on Next Page)
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Diane C. Roth Subject: Annual Litigation Report (2010) and
Senior Assistant City Attorney Request for Additional Funding for Outside
Counsel and Litigation Expenses.
Dept: City Attorney
Date: February 22, 2011
Synopsis of Previous Council Action: July 6, 2010: MCC adopted Resolution # 2010-224,
approving and adopting the City of San Bernardino's Final Budget for Fiscal Year 2010-2011; and
directing the establishment of the City's appropriation limit as required by Article XIII B of the
California State Constitution.
Recommended motion: 1. Accept and file 2010 Annual Litigation Report; 2. Authorize
additional funding of$300,000 for Outside Attorney Services and additional$150,000 for Litigation
Expenses, and 3. Direct the Director of Finance to amend the 2010/2011 City General Fund
Budget to reflect increase of $300,000 to account # 001-050-5503-0000-0006 and increase of
$150,000 to account # 001-050-5177-0000-0006.
I
Signature
Contact person: Diane C. Roth Phone: (909) 384-5355
Supporting data attached: four pages Ward: All
FUNDING REQUIREMENTS: Amount: $450,000
Source: City General Fund
Finance:
Council Notes:
Agenda Item No. 19
Da-aa-� i
CITY OF SAN BERNARDINO
INTRA-OFFICE MEMORANDUM
TO: Mayor and Common Council
FROM: Diane Catran Roth, Senior Assistant City Attorney '
DATE: February 14,2011
RE: 2010 Annual Litigation Report
The following is a summary of the civil cases open on December 31 of 2008,2009 and 2010:
12/31/2008 12/31/2009 12/31/2010
Total number of open civil cases 77 86 103
Number handled by outside counsel 30 32 33
Number handled in-house 47 54 70
Police cases 23 33 40
Federal court cases 10 17 22
Total spent on outside counsel $560,643 $491,896 $546,677
Litigation expenses $170,941 $289,580 $202,044
Total number of new cases opened in 2010: 56
Total number of cases closed in 2010: 24
In addition,we litigated a dozen federal criminal subpoenas in which police personnel files have
been sought (all but one in Los Angeles), 32 Pitchess motions (which, in addition to drafting the
oppositions,usually take a half day of court time)and several petitions for the return of confiscated
firearms.
As you can see,our caseload has increased steadily over the last couple of years in both volume and
complexity. We ended 2010 with 34% more cases than we had at the end of 2008, including a
102% increase in cases riled in Federal Court. The number of cases with outside counsel has
remained steady;the increased burden has been shouldered by our in-house staff. Nevertheless,the
amount budgeted for and actually spent on outside counsel decreased from 2008 to 2010, the
number of in-house attorneys remained constant and our in-house support staff decreased in
2010.
Federal court cases put much more stress on our resources,not only because they are often venued
in Los Angeles or Santa Ana,but because they move very quickly,have numerous court appearances
which require the appearance of trial counsel,have strict time constraints throughout the entire case
with little sympathy from the bench for attorneys' calendars or other obligations. For example, a
party has 75 days to respond to a motion for summary judgment in state court,but only 21 days in
federal court.Also,the federal court requires many documents to be filed jointly by the parties after
face-to-face meetings and negotiations. All of our outside counsel have young associates and other
support staff to lighten the burden of working up and trying federal cases,but our in-house attorneys
handle their cases without such support. Therefore the challenge for litigation attorneys within the
office to also balance municipal advisory duties has increased.
However,despite the additional burden,we have been successful in the majority of our cases. We
had to pay out on only two judgments—a stipulated judgment in the Hulse-LAFCO case(after the
City Council declined to follow our legal advice and acted to annex several County unincorporated
"islands"into the City),and the J.R. case(the 2005 incident at the stadium after the Black History
Parade involving alleged police excessive force),which was tried to verdict in a previous year and
affirmed by the 91h Circuit in 2010.
Amount paid on judgments in 2010:
Hulse(Stipulated judgment) $ 66,667
J.R. (Verdict affirmed by 9`f' Cir.) 211,938
TOTAL $278, 605
The majority of what was paid out in settlements was on the Batey case(trip and fall in the library
resulting in stroke). Other than that case,we have successfully negotiated favorable settlements in
seven cases (all $50,000 or less) and closed 14 cases after outright dismissals. We also won the
Watson case at trial (alleged police excessive force).
Amount paid on settlements in 2010:
Outside counsel:
Batey(dangerous condition) $292,352
Daves (police/wrongful death) 10,000
$302,352
In-house
Bocanegra (police misconduct) $ 50,000
Burrtec(refuse hauler) 35,000
Montenegro(police misconduct) 19,500
Nauman (dangerous condition) 6,250
Shaver(police misconduct) 1,500
Vargas (police misconduct) 15,000
$127,250
The above figures reflect calendar year expenditures.
For the fiscal year 2010/2011 we projected and requested$670,800 for outside counsel and$238,600
for litigation costs. Council reduced our budget resulting in $416,400 for outside counsel and
$116,000 for litigation costs being included in the final budget. We stated at the time that those
amounts are insufficient to defend the City in lawsuits for Fiscal year 2010/2011.
In this fiscal year to date we have incurred approximately $526,000 in outside counsel fees and
approximately $160,000 in litigation expenses. At my request, all of our outside counsel have
provided estimates of their fees projected through June 30, 2011. Their estimates total$610,200
in fees. In addition, we estimate approximately$250,000 in litigation expenses.
Based on the above, we request a budget increase of an additional$300,000 for outside counsel
and an additional$150,000 for litigation expenses.
ATTACHMENT 2
Recommended for approval at the Redevelopment Committee meeting on
February 10, 2011 - Committee Members Present: Johnson, Brinker,
Marquez
R33. Resolution of the Community Development Commission of the City of San
Bernardino approving and authorizing the Interim Executive Director of the
Redevelopment Agency of the City of San Bernardino ("Agency") to execute a
Professional Services Agreement by and between the Agency and Stechmann
Geoscience, Inc., A California Corporation, concerning environmental
investigations on Agency owned property located at the Southeast corner of 5'
and "H" Streets (Central City North Redevelopment Project Area). (See
Attached) All Wards
Approved
MOTION: That said resolution be adopted.
Adopted CDC/2011-13
END OF COMMUNITY DEVELOPMENT COMMISSION
City Attorney
34. Request for increase in City Attorney's Office budget for outside counsel and
litigation expenses (Cost to the City - $450,000 from General Fund) (Staff
1 Report not available at time of printing.)
No Action Taken
MOTION: That the City Attorney's budget be increased by $300,000 for
Outside Counsel and $150,000 for Litigation Expenses.
Approved
MOTION: That the matter be referred to the Ways and Means Committee.
35. PUBLIC COMMENTS ON ITEMS NOT ON THE AGENDA: A three-minute
limitation shall apply to each member of the public who wishes to address the
Mayor and Common Council/Community Development Commission on a matter
not on the agenda. No member of the public shall be permitted to "share"
his/her three minutes with any other member of the public. (Usually any items
heard under this heading are referred to staff for further study, research,
completion and/or future Council/Commission action.)
36. Adjournment.
Consensus
J17111
ATTACHMENT 3
At
AGENDA
WAYS AND MEANS COMMITTEE
Council Member Fred Shorett—Chairperson
Council Member Chas A. Kelley
Council Member Rildce Van Johnson
Council Member Virginia Marquez(Alternate)
TAM: 5:00 pan.—Wednesday,March 9,2011
PLACE: Estrada Conference Room—Council Office
The City of San Bernardino recognizes its obligation to provide equal access to public services to those individuals
with disabilities. Please contact Facilities Management.(384-5244)two woflung days prior to the meeting for any
requests for reasonable accommodation,to include interpreters.
PUBLIC COMMENTS—TrEMS NOT ON AGENDA:
CLOSED SESSION:
1. Pursuant to Government Code Sections:
MOTION:That the Ways&Means Committee recess to closed session for the following.
H. Conference with legal counsel — existing litigation — pursuant to Goverment Code
Section 54956.9(a).
B. Conference with legal counsel—anticipated litigation—significant exposure to litigation
—pursuant to subdivision(bXl);(2);(3XA--F)of Government Code Section 54956.9.
C• Confir=ms with legal counsel-anticipated litigation—initiation of litigation—pursuant
to subdivision(c)of Government Code Section 54956.9.
D. Conference with legal counsel — personnel — pursuant to Goverment Code Section
54957.
OPEN SESSION:
1. REVIEW AND POTENTIAL REVISION OF TOW SERVICE AGREEMENT — City
Manager's Office/Poiice Department
2. REVIEW AND DISCUSSION OF AGREEMENT WITH APARC SYSTEMS, INC.
FOR FULL SERVICE PARKING METER SOLUTION IN THE COURTHOUSE
DISTRICT-City Manager's Office
3. REVIEW AND DISCUSSION OF CITY ATTORNEY'S FUNDING REQUEST AND
BUDGET—City Attorney
PENDING ITEMS•
1. Friends of Roosevelt Bowl Financial Status—Council Office
2. Historic Clocks(M/CC May 3,2010: Referred Back to Ways&Means Committee)
5
Ways and Means Committee
Action Minutes
March 9, 2011
3. REVIEW AND DISCUSSION OF CITY ATTORNEY'S FUNDING REQUEST
AND BUDGET
The committee recommended that this item be referred to the full
Council with the staff options presented in the Review of the CAO Budget
along with Councilman Kelley's recommendation to transfer $ 360,000
from the ACP Reserve to balance the projected deficit.
(Shorett, Johnson, Kelley)
Meeting adjourned at 10:45 p.m.
Prepared by Jorge Carlos, Executive Staff Assistant to City Council
p ,r OFFICE OF THE CITY MANAGER
y H y
300 North"D"Street•San Bernardino•CA 92418-0001
` 909384.5122•Fax:909.384.5138
San Bernar ino www.sbcity.org
SM
MEMOR-ANDUM
TO: Members of the Ways & Means Committee
FROM: Charles McNeely, City Manager
Barbara Pachon, Director of Finance X�4
SUBJECT: Review of City Attorney's Budget
DATE: March 9, 2011
In preparation for the Ways & Means Corrunittee Mceting I air,providing you the
attached information on the City Attorney's Budget.
The attached documents include:
• Analysis of City Attorney Budget
• Final Proposed City Attorney Office Budget Memorandum
• Historical Analysis of City Attorney Spending
• FY 10-1 land FY-12 Revenue Report
We look forward to answering your questions during the meeting.
-C
b
a
c
AGENDA ITEM NO. 3
CITY OF SAN BERNARDINO
ADOPTED SHARED VALUES: Integrity•Accountability•Respmt iur numan L,igmry•Honesty
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INTER OFFICE MEMORANDUM
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
To: Charles McNeely, City Manager
From: James F. Penman, City Attorney
Subject: Final Proposed City Attorney Of ice Budget For FY 2010/2011
Date: June 30,2010
Attached please find the final proposed budget from this office for FY 2010/1011. This is not
the 15% decreased budget amount. This is the amount we request even if additional reductions
are not found to be necessary.
Because this office has no control over how many lawsuits will be filed in the next fiscal year it
is not possible to reduce the proposed Outside Counsel costs line item by more than $125,000and
the Litigation Costs line item by more than $40,449. We have made those reductions.
er ' uu drtcrreali o d
costs. However, any such reduction would result in the immediate necessity to farm out to
outside counsel numerous existing law suits. The cost of the outside counsel would significantly
exceed the money saved by the personnel reductions.
Lawsuits cannot"sit and wait" to be defended. They must be defended aggressively. Failure to
file motions in court, to make any court appearance or to be ready for trial will result in sanctions
and then the entries of default judgments against the City. For example, if we had failed to make
any appearance in the Flesh Club case, failed to file any motions or required responses, or failed
to appear ready for trial, that case would have been lost instead of won. The City would have
faced an immediate demand to pay over $2.4 million including the judgment, post-judgment
interest and attorney fees. The amount of$2.4 million is approximately 65% of the entire
proposed city attorney office budget.
We have obtained the now estimated 8% necessary budget reduction by the combined $165,449
reduction in outside counsel and litigation costs and by adding one ACP Enforcement position.
This position will result in an approximately$200,000 increase in fines and penalties for the
general fund for FY 2010/2011. After subtracting the salary, including benefits of the additional
position the net increase to the general fund will be $136,687.
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ATTACHMENT 4
CONTINUED ITEMS
Parks, Recreation and Community Services
Continued from March 7, 2011
27. Resolution of the Mayor and Common Council of the City of San Bernardino
authorizing the City Manager to approve a Facility Lease Agreement between
the City of San Bernardino and Project Fighting Chance to provide community
and youth services at Perris Hill Community Center (previously a Special Place
Children's Museum). (No Cost to the City) (Backup documents distributed
on March 7, 2011, Item No. 16.) Ward 2
Approved
MOTION: That said resolution be adopted.
Adopted 2011-76
END OF CONTINUED ITEMS
STAFF REPORTS
City Attorney
7�! 28. Request for increase in City Attorney's Office Budget for outside counsel and
litigation expenses (Cost to the City - $410,000 from General Fund) (Staff
Report not available at time of printing.)
Approved
MOTION: That the matter be discussed and possible action taken.
To approve City Manager's recommendations as follows:
1) Authorize the Director of Finance to make all payments
submitted from the CAO for FY 2011/11; 2) After the CAO's
current budget appropriation is expended, the General Fund,
on behalf of CAO, will take out a loan up to $410,000; and
3) A budget reduction will come from the GAO's FY 2011/12
budget to repay the loan.
Council Office
29. Mayor Pro-Tempore - Election of Mayor Pro-Tempore (See Attached)
Approved
MOTION: That the Common Council elect Council Member Fred Shorett
to serve as Mayor Pro-Tempore until March 19, 2012.
END OF STAFF REPORTS
� 7RI G i N A L
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: DIANE C. ROTH Subject: Request for increase in City Attorney's Office
Sr.Assistant City Attorney budget for outside counsel and litigation expenses.
Dept: CITY ATTORNEY
Date: March 21,2011
Synopsis of Previous Council Action:
February 22,2011 -Referred to Ways and Means Committee.
March 7,2011 —Allocated$90,000 for litigation budget and referred remainder to Ways &Means
March 9,2011 —Ways and Means Committee referred back to Mayor and Council
Recommended motion:
Increase City Attorney's Office budget for outside counsel by $310,000 and the budget for litigation
expenses by$100,000, for a total of$410,000.
ignature
Contact person: Diane C. Roth Phone: 5355
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Finance:
Council Notes:
Agenda Item No. 28
D3 -c?-/-a���
CITY OF SAN BERNARDINO
INTRA-OFFICE MEMORANDUM
TO: Mayor and Common Council
FROM: Diane Catran Roth, Senior Assistant City Attorney
t
DATE: March 18, 2011
RE: Renewed Request for an Increase in the City Attorney's Office Budget for Outside
Counsel and Litigation Expenses.
This is a renewed request for additional funding in the City Attorney's Office for outside
counsel and litigation expenses. Since the March 7, 2011,meeting of the Mayor and Council, issue
has come before the Ways and Means Committee.Attached as backup are the staff reports provided
for the February 22,2011,and the March 7,2011,Council Meetings as well as documents provided
to the Ways and Means Committee on March 9, 2011.
At the March 7,2011,meeting the Mayor and Council allocated$90,000 for attorneys' fees
and litigation costs ($40,000 fees, $50,000 costs) leaving $360,000 remaining of the $450,000
additional funding requested by the City Attorney's Office on February 22 and March 7.
Since the March 7,2011,Council meeting we have been served with four new lawsuits,
all of which will be handled in-house.
On this agenda, we are requesting to retain outside counsel on two additional federal civil
rights cases arising from two fatal police shootings with initial caps on attorneys' fees in the amount
of$25,000 for each case. These are cases that have been substantially worked up in-house to save
money, but trials are coming up shortly and the City Attorney's Office does not have the time or
resources to devote to effectively try them.
This brings our current request to $310,000 for outside attorneys' fees and $100,000 for litigation
costs, for a total additional amount of$410,000.
CITY OF SAN BERNARDINO
INTRA-OFFICE MEMORANDUM
TO: Mayor and Common Council
FROM: Diane Catran Roth, Senior Assistant City Attorney •
DATE: February 22, 2011
RE: 2010 Annual Litigation Report
The following is a summary of the civil cases open on December 31 of 2008, 2009 and 2010:
12/31/2008 12/31/2009 12/31/2010
Total number of open civil cases 77 86 103
Number handled by outside counsel 30 32 33
Number handled in-house 47 54 70
Police cases 23 33 40
Federal court cases 10 17 22
Total spent on outside counsel $560,643 $491,896 $546,677
Litigation expenses $170,941 $289,580 $202,044
Total number of new cases opened in 2010: 56
Total number of cases closed in 2010: 24
Included in the above caseload are five appeals. We are now handling all state and federal writs
and appeals in house, at a estimated savings of$150-200,000 in 2010. Appeals typically take an
average of approximately 150 hours. The appeal in the Alvarez case took substantially more time,
all of which occurred in 2010. (Oral argument occurred in 2011, and the Federal Court of Appeals
for the Ninth Circuit ruled in the City's favor.)
In addition, we litigated a dozen federal criminal subpoenas in which police personnel files have
been sought (all but one in Los Angeles), 32 Pitchess motions (which, in addition to drafting the
oppositions, usually take a half day of court time) and several petitions for the return of confiscated
firearms.
2010 Annual Litigation Report
February 22, 2011
Page 2
As you can see, our caseload has increased steadily over the last couple of years in both volume and
complexity. We ended 2010 with 34% more cases than we had at the end of 2008, including a
102% increase in cases filed in Federal Court. The number of cases with outside counsel has
remained steady;the increased burden has been shouldered by our in-house staff. Nevertheless,the
amount budgeted for and actually spent on outside counsel decreased from 2008 to 2010, the
number of in-house attorneys remained constant and our in-house support staff decreased in 2010.
Federal court cases put much more stress on our resources, not only because they are often venued
in Los Angeles or Santa Ana,but because they move very quickly,have numerous court appearances
which require the appearance of trial counsel,have strict time constraints throughout the entire case
with little sympathy from the bench for attorneys' calendars or other obligations. For example, a
party has 75 days to respond to a motion for summary judgment in state court, but only 21 days in
federal court. Also,the federal court requires many documents to be filed jointly by the parties after
face-to-face meetings and negotiations. All of our outside counsel have young associates and other
support staff to lighten the burden of working up and trying federal cases,but our in-house attorneys
handle their cases without such support. Therefore the challenge for litigation attorneys within the
office to also balance municipal advisory duties has increased.
However, despite the additional burden, we have been successful in the majority of our cases. We
had to pay out on only two judgments—a stipulated judgment in the Hulse-LAFCO case (after the
City Council declined to follow our legal advice and acted to annex several County unincorporated
"islands" into the City), and the J.R. case (the 2005 incident at the stadium after the Black History
Parade involving alleged police excessive force), which was tried to verdict in a previous year and
affirmed by the 9' Circuit in 2010.
Amount paid on judgments in 2010:
Hulse (Stipulated judgment) $ 66,667
J.R. (Verdict affirmed by 9`h Cir.) 211.938
TOTAL $278, 605
The majority of what was paid out in settlements was on the Batey case (trip and fall in the library
resulting in stroke). Other than that case, we have successfully negotiated favorable settlements in
seven cases (all $50,000 or less) and closed 14 cases after outright dismissals. We also won the
Watson case at trial(alleged police excessive force) and the Flesh Club case at trial on remand to
the Superior Court after winning in the California Supreme Court.
Amount paid on settlements in 2010:
Outside counsel:
Batey(dangerous condition) $292,352
Daves (police/wrongful death) 10,000
$302,352
2010 Annual Litigation Report
February 22, 2011
Page 3
In-house counsel:
Bocanegra (police misconduct) $ 50,000
Burrtec (refuse hauler) 35,000
Montenegro (police misconduct) 19,500
Nauman (dangerous condition) 6,250
Shaver (police misconduct) 1,500
Vargas(police misconduct) 15,000
$127,250
The above figures reflect calendar year expenditures.
For the fiscal year 2010/2011 we projected and requested$670,800 for outside counsel and$238,600
for litigation costs. Council reduced our budget resulting in $416,400 for outside counsel and
$116,000 for litigation costs being included in the final budget. We stated at the time that those
amounts are insufficient to defend the City in lawsuits for Fiscal year 2010/2011.
In this fiscal year to date we have incurred approximately $526,000 in outside counsel fees and
approximately $160,000 in litigation expenses. At my request, all of our outside counsel have
provided estimates of their fees projected through June 30,2011. Their estimates total$610,200 in
fees. In addition, we estimate approximately $250,000 in litigation expenses.
Based on the above, we request a budget increase of an additional $300,000 for outside counsel
and an additional$150,000 for litigation expenses.
CITY OF SAN BERNARDINO
INTRA-OFFICE MEMORANDUM
TO: Mayor and Common Council
FROM: Diane Catran Roth, Senior Assistant City Attorney
DATE: March 3, 2011
RE: Updated Litigation Report
The following is a summary of the civil cases opened between January 1,2011 and March 3,2011:
12/31/08 12/31/09 12/31/10 3/1/11 % Change
since 2008
Total number of open civil cases 77 86 103 110 43%
Outside counsel 30 32 33 35* 17%
In-house 47 54 70 75 60%
Police cases 23 33 40(50) 45 (55)** 96%
Federal court cases 10 17 25 27 170%
* Council retained outside counsel on two new cases on February 22: Irma Moises Rodriguez on
the Firefighters' Union case re imposition of furloughs(cost to be paid by H.R.)and Timothy Sabo
on Placo v. City, EDA, et al. (cost to be paid by EDA)
** In the 2010 Annual Litigation Report, I reported as police cases only the 40 in which City was
a defendant. There were an additional 10 police cases in which the City was Plaintiff/Prosecutor.
We have 5 new police cases opened since January 1, 2011. The percentage increase takes into
account only the police cases in which the City is a defendant; the plaintiff/prosecution cases has
remained constant.
Total number of new cases opened since January 1, 2011: 11
Total number of cases closed since January 1, 2011: 4
Since January 1, 2011,the following new cases have been opened:
Brian Boom v. City, et al. Seeks damages for alleged wrongful demotion, violation of
civil service right to hearing and violation of Peace Officers'
Updated Litigation Report
March 3, 2011
Page 2
Bill of Rights; also seeks declaration that rank of Captain is
classified and order that"Schneid" report be destroyed
Patricia Carson v. City, et al. Alleged dangerous condition of public property(stepped into
a pothole in animal shelter parking lot)
Destiny Colon, et al. v. Citv of Fontana et al. Alleges dangerous condition adjacent to
railroad tracks. Plaintiffs allege they were walking on a
walkway,when a pack of vicious dogs came through a broken
fence and mauled plaintiffs. Alleges City is liable due to its
provision of animal control services to City of Fontana
Mihai Duiciuc v. City, et al. Federal civil rights case (code enforcement alleged illegal
entry onto property)
Arnold Herrera v. City, et al. Federal civil rights case (alleged police warrantless search,
wrongful arrest, excessive force)
Placo, San Bernardino c. City Seeks Damages & equitable relief alleging inverse
condemnation,violation of right to equal protection,violation
of contract rights, breach of contract, interference of
prospective economic advantage—regarding foreclosure on the
Carousel Mall
San Bernardino Professional Firefighters, Local 891, et al., v. City, et al Firefighters' suit
regarding imposition of salary concessions
Joe Taylor v. City February 14, 2010 accident on North Tippecanoe, south of
East Baseline in which plaintiff's bicycle entered a concrete
drainage ditch and catapulted his body onto the roadway;
alleges dangerous condition of public property, failure to
maintain, failure to warn
Universal Trailers, Inc., v. City, et al. Suit for inverse condemnation,dangerous condition,
negligence,trespass. Alleges that January 21,2010,the flood
control channel&culvert overflowed and flooded the business
located at 1050 East Cooley Ave. with water, mud& debris.
Mark Wainwright v. Martinez, et al. Auto accident on June 5,2010,in which the car driven
by plaintiff collided with a San Bernardino police vehicle.
Plaintiff alleges the police officer was at fault.
Updated Litigation Report
March 3, 2011
Page 3
Karla Ybarra, et al, v. Southern California Edison, et al. Alleged dangerous condition case
resulting from an auto accident on January 13,2010, on Mill
Street, east of Tippecanoe, when plaintiff allegedly drove his
vehicle into an uncovered manhole
Although we do not have any way of knowing what new cases will be opened over the remainder of
this fiscal year, we have some pending claims that we know will be filed. For example:
Claim of a minor child(Williams)and an unborn child over the shooting death of their father,
Ephraim Williams, by a San Bernardino police officer on December 25, 2010, near
the intersection of Magnolia Ave. and E Street. The claimants are represented by
Brian Dunn, an attorney with the Cochran Firm in Los Angeles. This will be a civil
rights case and will most likely be filed in federal court.
In addition,we have several cases coming up for trial in the next few months for which we need to
retain experts. Typically,the types of experts we require charge between $15,000 and$25,000,but
some may run as high as$40,000. In federal court,we must disclose to plaintiff s attorney the experts
and their reports 90 days before trial or we are precluded from calling them to testify at trial.
We are,therefore, again requesting an increase in our budget in the amount of$300,000 for outside
counsel and $150,000 for litigation expenses.
CITY OF SAN BERNARDINO
INTRA-OFFICE MEMORANDUM
TO: James F. Penman, City Attorney
FROM: Jamie J. Cimino, Administrative Anal
DATE: March 3, 2011
RE: Administrative Civil-Penalties' Citation Totals
cc: Jolena E. Grider, Assistant City Attorney
CUMULATIVE TOTALS
Per your request,I have compiled a report with the most current totals for Administrative Civil Penalties
(ACP) for the 2010/2011 fiscal year.
[See Chart 1. Cumulative Fiscal Year Totals]
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DEPARTMENTAL TOTALS
Below is a departmental breakdown of the Administrative Civil Penalties totals for the current fiscal year.
These totals are what was used to calculate the Cumulative Total. It should also be noted that payments
are an option, so the collected total does not equal the total awarded. In addition,the"Awarded to date"
category is what has been awarded by the Hearing Officer through the entirety of the program. Because
many of the penalties are accumulating on a daily basis these figures will not be accurate beyond
November 30, 2010.
Ct Attorney's Office
Collected February 2011: $6,568.32
Total Collected FY 10/11: $352,911.13
Awarded to date: $5,232,447.50
Police Department
Collected February 2011: $4,576.11
Total Collected FY 10/11: $40,086.66
Awarded to date: $353,359.00
Code Enforcement.
Collected February 2011: $8,555.00
Total Collected FY 10/11: $185,468.96
Awarded to date: $1,515,894.00
Fire Department
Collected February 2011: $216.98
Total Collected FY 10/11: $43,702.90
Awarded to date: $362,400.00
Communitv Development
Collected February 2011: $0.00
Total Collected FY 10/11: $2,000.00
Awarded to date: $38,100.00
Public Works
Collected January 2011: $0.00
Total Collected FY 10/11: $1,000.00
Awarded to date: $750.00
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ATTACHMENT 5
25. Current Litigation Report - Set aside reserves on individual cases (Staff Report
not available at time of printing.)
No Action Taken
MOTION: That the matter be discussed and possible action taken.
Approved
MOTION: That the matter be tabled.
26. PUBLIC COMMENTS ON ITEMS NOT ON THE AGENDA: A three-minute
limitation shall apply to each member of the public who wishes to address the
Mayor and Common Council/Community Development Commission on a matter
not on the agenda. No member of the public shall be permitted to "share"
his/her three minutes with any other member of the public. (Usually any items
heard under this heading are referred to staff for further study, research,
completion and/or future Council/Commission action.)
27. Adjournment.
Consensus
MOTION: That the meeting be adjourned.
NOTE: The next joint regular meeting of the Mayor and Common
Council/Community Development Commission is scheduled for 1:30
p.m., Monday, April 18, 2011, in the Council Chambers of City Hall,
300 North "D" Street, San Bernardino, California.
i
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTIOr
From: James F. Penman
Dept: City Attorney
Date: April 4, 2011
Re: Current Litigation Report/Claims and Judgments Payable
Synopsis of Previous Council action: March 21. 2011: that the City Manager's recommendations be approved as
follows: 1) Authorize the Director of Finance to make all payments submitted from the CAO for FY 2011/11; 2)
After the CAO's current budget appropriation is expended, the General Fund, on behalf of the CAO, will take out a
loan up to $410,000; and 3) A budget reduction will come from the CAO's FY 2011'12 budget to repay the loan.
Recommended motion: 1. Reconsider Council Action of March 21, 2011 requiring paying back loan from 2011-
2012 City Attorney budget for Outside Counsel and Litigation Expenses, and
2. That funding for the $410,000 requested by the City Attorney for the balance of fiscal
year 2010/1011 be allocated from the Claims and Judgments Payable fund/account.
Signature
Contact person: James F. Penman Phone: 4355
Supporting data attached: Staff report Ward: All
FUNDING REQUIREMENTS: Amount: $410,000
Source: (Acct. Description) Claims and Judgments Payable fund/account
Finance:
Council Notes:
75-0262 Agenda Item No. 25
Staff Report-Agenda Item #25
City Council Meeting
April 4, 2011
TO: Mayor and Common Council
FROM: James F. Penman, City Attorney
DATE: April 4, 2011
AGENDA ITEM: #25
On March 21,2011 during the regular council meeting,agenda item#22 and#28(combined)
the Director of Finance advised the Mayor and Council during a"PowerPoint"presentation that the
City's Liability Reserve budget was running a deficit of$672,500.
On March 30, 2011 the Director of Finance advised the City Attorney, City Manager and
certain City staff that the "Claims and Judgements Payable" fund/account was funded at
$3,636,724.00 as of June 30, 2010.
On April 4,2011 the Director of Finance informed City Attorney management staff that the
"Claims and Judgements Payable" fund/account was funded at $5,195,320.00.
To date, the sum of $570,325.26 has been paid out of FY 2010/2011 on judgements,
settlements and claims, leaving a balance of$4,624,994.74 in said fund account.
Therefore,there is no need to"borrow"against the 2011/2012 City Attorney Budget the sum
of$410,000 to meet the FY 2010/2011 Outside Counsel and Litigation Expense costs.
Z:\PENMAN\Agenda Items-forms\Staff Report.25,4.2.1 I.wpd
Attachment 6
PHILLIP H.WALLER,C.P.A.
ODLE
M KEW BRENDA L.ODLE,C.P.A.
TERRY P.SHEA,C.P.A.
KIRK A.FRANKS,C.P.A.
MATTHEW B.WILSON,C.P.A.
ROGERS ANDERSON MALODY & SCOTT LLP SCOTT W MANNO,C.P.A.
/ / / LEENA SHANBHAG,C.P.A.
CERT IF IED PUBLIC ACCOUNTANTS
NANCY O'RAFFERTY,C.P.A.
BRADFERD A.WELEBIR,C.P.A.
ROBERT B.MEMORY,C.P.A.(1945-2009) JENNY LIU,C.P.A.
KATIE L.MILLSOM,C.P.A.
August 10, 2011 JONATHAN R.KUHN,C.P.A.
OF COUNSEL PAPA MATAR THIAW,C.P.A.
JAY H.ZERCHER,C.P.A. MAYA S.IVANOVA,C.P.A.
CHRISTOPHER MONTOYA,C.P.A.
DANIELLE E.ODGERS,C.P.A.
Charles E. McNeely, Manager WILLIAM T CLAYTON,C.P.A.
y� Y er g SCOTT MILLSOM,C.P.A.
City of San Bernardino
300 North D Street
San Bernardino, CA 92418
SUBJECT: Accounting treatment of accounts payable invoices
Dear Mr. McNeely:
In response to the City's question as to the treatment of accounts payable invoices for legal
services rendered during fiscal year 2010/11.
The technical term that describes the criteria governing the timing of the recognition of
transactions and events is basis of accounting. The City's General Fund follows the modified
accrual basis of accounting, and expenditures are recognized in the period in which the liability
is incurred, regardless of the timing of the cash outflows. The only exceptions to this are for
liabilities associated with claims and judgments payable, compensated absences, interest on
long-term debt and pension obligations.
Therefore, because the services were provided for during fiscal year 2010/11 the expenditure and
corresponding liability should be recorded in fiscal year2010/11. If the items are omitted it could
lead to an internal control finding over the completeness and accuracy of accounts payable and
accrued expenses. Specifically, controls over cut-off and completeness of accounts payable
would be considered insufficient to ensure that invoices from certain vendors were properly
evaluated at year end.
If you need further clarification or have any additional questions please give me a call.
Yours truly,
Terry ea, CPA
Rogers, Anderson, Malody & Scott, LLP
MEMBERS
AMERICAN INSTITUTE OF
CERTIFIED PUBLIC ACCOUNTANTS
PCPS THE AICPA ALLIANCE FOR CPA FIRMS VANIR TOWER • 290 NORTH "D"STREET • SUITE 300
SAN BERNARDINO, CA 92401
CALIFORNIA SOCIETY OF (909)889-0871 • (909)824-6736 • FAX(909)889-5361
CERTIFIED PUBLIC ACCOUNTANTS Website: www.ramscpa.net