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Home My WebLink AboutNB1-Case 08-0-10457 s COPY RESOLUTION NO. 2008-164 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO RESPECTFULLY REQUESTING THE STATE BAR OF CALIFORNIA TO DISMISS CASE NUMBER 08-0-10457 AGAINST SAN BERNARDINO CITY ATTORNEY JAMES F. PENMAN. WHEREAS, the Mayor and Common Council ("the Council") as an entity is the highest governing body of the Municipal Corporation known as the City of San Bernardino; and WHEREAS,San Bernardino City Attorney James F. Penman is the chief legal officer of the City of San Bernardino; and, WHEREAS, a complaint against said City Attorney, James F. Penman was dated November 3, 2005, six days prior to the San Bernardino City Mayoral primary election, and was filed by a complainant, specifically in the capacity of a private citizen and not as a city official, with THE STATE BAR OF CALIFORNIA in December 2005, alleging misconduct by the City Attorney regarding Agenda Item S-1 on the September 19, 2005 City Council agenda, and, the City Council did not give its approval to the filing of the State Bar complaint; and, WHEREAS, THE STATE BAR OF CALIFORNIA found no grounds for disciplinary action based on said complaint dated November 3, 2005, and closed said complaint; and, WHEREAS,the Complainant in said case has requested a review of the closing of said complaint file,and THE STATE BAR OF CALIFORNIA has assigned Case Number:08-0-10457 to its review based on Complainant's request, and the City Council did not give its approval to the request by the Complainant to review the State Bar's closure of the complaint, and the City Council did not join in the request to reopen the complaint; and, WHEREAS,the Councilmember who placed said item number S-1 on the September 19, 2005 Council agenda withdrew said item from consideration before a vote was taken, and said Councilmember is not the Complainant; and, WHEREAS, the San Bernardino County District Attorney's office concluded that the actual complaint subsequently submitted to the District Attorney's office did not accuse the City Attorney of committing any crime and the complaint was therefore dismissed by the District Attorney; and, WHEREAS, San Bernardino City Attorney James F. Penman has always been diligent in declaring any conflicts of interest and in recusing himself in regards to such agenda items; and, WHEREAS, the Mayoral election of 2005-2006 was a very contentious election which divided elected officials as well as the public; and, S-/9 D8 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO RESPECTFULLY REQUESTING THE STATE BAR OF CALIFORNIA TO DISMISS CASE NUMBER 08-0-10457 AGAINST SAN BERNARDINO CITY ATTORNEY JAMES F. PENMAN. WHEREAS,said 2005-2006 mayoral election is now over,The Honorable Patrick J.Morris was elected Mayor by the voters in this City in the Municipal General Election held on February 7,2006 and was sworn in on March 6, 2006, and serves in that capacity today; and, WHEREAS,San Bernardino City Attorney James F. Penman was reelected to the Office of City Attorney by the voters of this City in the Municipal Primary Election held on November 6,2007,and was sworn in to begin his sixth term in said office on March 3, 2008, and serves in that capacity today: and, WHEREAS, the elected officials of the City of San Bernardino have made good progress in rebuilding their relationships with one another; and, WHEREAS,the Council as an entity, speaks for the City of San Bernardino which has been the only client of City Attorney James F. Penman("the City Attorney") for more than twenty years, and since said Council as an entity has never filed a complaint against the City Attorney with THE STATE BAR OF CALIFORNIA, and has not joined in the complaint resulting in State Bar Case Number 08-0-10457; and, WHEREAS,the issue called to the attention of THE STATE BAR OF CALIFORNIA in State Bar Case Number 08-0-10457 has been resolved to the satisfaction of the Council, and because the City of San Bernardino is currently in the midst of a serious budget crisis which involves many legal questions, and because the City has numerous legal cases and other legal issues to which the full attention of the City Attorney and all other City officials is needed, and because continuation of the case will promulgate further dissension,division,and distraction throughout the City,thus impacting the daily work and duties of various city officials in addition to the City Attorney, THEREFORE BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: That the City of San Bernardino hereby respectfully requests that THE STATE BAR OF CALIFORNIA dismiss said State Bar Case Number 08-0-10457 against San Bernardino City Attorney James F. Penman. f RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO RESPECTFULLY REQUESTING THE STATE BAR OF CALIFORNIA TO DISMISS CASE NUMBER 08-0-10457 AGAINST SAN BERNARDINO CITY ATTORNEY JAMES F. PENMAN. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and joint Common Council of the City of San Bernardino at a regular meeting thereof, held on the 19 day Of may , 2008, by the following vote, to wit: COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT ESTRADA X BAXTER x BRINKER x DERRY x x KELLEY JOHNSON x MC CAMMACK x Rachel Clark, City Clerk The foregoing Resolution is hereby approved this_day of May , 2008. Per attached memorandum dated May 23, 2008, from Mayor Patrick J. Morris, the Mayor declined to sign this resolution. Pursuant to Section 31 of the City Charter, this resolution is valid since it was passed by a vote of not less than 5 Council Members and shall take effect as if approved by the Mayor. PATRICK J. MORRIS, Mayor City of San Bernardino Approved as to form: By: Timothy a o, 3pecial Counsel ,�-aOyos S� {��gNAR,pj�o o c OFFICE OF THE MAYOR PATRICK J. MORRIS D IN CITY OF SAN BERNARDINO INTEROFFICE MEMORANDUM TO: Rachel Clark, City Clerk FROM: Mayor Patrick J. Mo i SUBJECT: Resolution 2008-164 DATE: May 23, 2008 CC: City Council; City Attorney; City Manager I am returning Resolution 2008-164 without my signature because, by requesting that the State Bar dismiss a complaint filed by a private citizen against an attorney, the resolution would involve the City of San Bernardino in a private and confidential legal matter under the exclusive jurisdiction of the State Bar of California. In accordance with Section 40 of the San Bernardino City Charter ("Powers of Mayor and Common Council"), involvement in, or influencing of, the investigation and prosecution of a private citizen's complaint by the State Bar of California, is not a matter appropriately within the jurisdiction of the Mayor and the Common Council of the City of San Bernardino. According to Resolution 2008-164, a private citizen filed State Bar Case 08-0-10457 against attorney James F. Penman in December 2005, and such complaint is currently under investigation by the State Bar. The City of San Bernardino is not a party to this private citizen complaint. Because all complaints filed with the State Bar are by required by state statute to be confidential, neither the Mayor nor members of the Common Council have knowledge of the facts, allegations, or potential violations arising under this complaint. Nonetheless, Resolution 2008-164 proposes to resolve that "the City of San Bernardino hereby respectfully requests that THE STATE BAR OF CALIFORNIA dismiss said State Bar Case 08-0-10457" against attorney James F. Penman. Section 40 of the San Bernardino City Charter defines the powers of the Mayor and Common Council. The powers enumerated in Section 40 are powers that are related to functions necessary and/or proper for protecting and advancing the general welfare of the City and its inhabitants. Like our federal government, charter cities are a form of limited government and are only allowed to exercise powers expressly conferred upon them by the citizenry. Therefore, actions by the City that are not within the scope of powers enumerated in Section 40 of the Charter are considered "ultra vires" and void. Page 1 Clearly, a resolution requesting that State Bar of California dismiss a private citizen's complaint against an attorney, to which the City is not a party and for which city officials have no knowledge of the facts, allegations or law, is not a power conferred by the citizens of San Bernardino on the Mayor and Common Council. Therefore, to avoid an ultra vires action by the City, and to prevent the City from impermissibly interfering with the exclusive jurisdiction of the State Bar of California on matters involving complaints by private citizens against an attorney, I am returning Resolution 2008-164 without my signature. Page 2