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Home My WebLink About28- City Attorney CITY OF SAN BERNARDINO - REQUEST '"OR COUNCIL ACTION From: James F. Penman, City Attorney Subject: Reimburse City Attorney for Dept: City Attorney Defense of Actions. Date: March 1, 1995 Synopsis of Previous Council action: Recommended motion: 1 . Motion to approve payment of legal fees incurred by City Attorney to defend accusations by Ralph Hernandez at the State Bar in the amount of $2, 182. 58. 2. Motion to approve payment of legal fees incurred by City Attorney in the case of Pryke v. City of San Bernardino and sexual harassment allegations in the amount of $4, 729.02. Signature James F. Penman 5255 Contact person: Phone: Supporting data attached: Ward: FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Acct. Description) Finance: Council Notes: ---3 S 75.0252 Agenda Item No.— � 4 1 - ��/��` it CITY OF SAN SERI IRDINO - REQUEST JR COUNCIL ACTION STAFF REPORT Government Code Section 995 requires that public entities must provide for the defense of their officers and employees on account of accusations made against them in the scope of their employment. The complaint filed with the State Bar by Councilmember Ralph Hernandez against the City Attorney was for alleged actions in his capacity as City Attorney. The City is therefore responsible to provide reimbursement for the legal costs incurred. Likewise, in the action involving the alleged sexual harassment claims and subsequent Petition for Writ of Mandate brought by Mr. Pryke, the City Attorney was required to incur legal fees since he was named as a real party in interest. These amounts should also be reimbursed. ( See attached billing statements from Redwine & Sherrill ) . y 75-0264 1 �J �.. •JJ ". JL 't.f.l 10*0 MARKET STREET R:VERSIDF,. CALIFORNIA 52501 6 A'JV OFFICE^s TELLZOI�ONE 714-684-2S20 REDWINE AND SHERRILL olss-i9�9ea� STATEMENT FOR PROFE55IONAL BERVICE5 March 1, 1995 CONFIDENTIAL TO BE OPENED BY ADDRESSEE ONLY Mr. James F. Penman P.O. Box 1366 San Bernardino, CA 92402 BILLING STATEMENT RE: PRYKE MATTER FOR SERVICES RENDERED TOTAL AMOUNT NOW DUE AND PAYABLE TO REDWINE AND SHERRILL. . . . . . . . . . . . . . . . . . . ... . . . . . . . . . $4,729 .02 r. 1 SO MARACT STRr.L:T RIVERSIDE. CALIFORNIA 92501 LAW OFFIC=S TE'_EPHONE 714-684-2520 REDWINE AND SHERRILL, iO ISS-1079627 STATEMENT FOR PAMSSI13NAL SERVICES March It 1995 CONFIDENTIAL TO BE OPENED BY ADDRESSEE ONLY Mr. James F. Penman P.O. Box 1366 San Bernardino, GA 92402 BILLING STATEMENT RE: STATE BAR MATTER FOR SERVICES RENDERED TOTAL AMOUNT NOW DUE AND PAYABLE $2, 182. 5$ TO REDWINE AND SHERRILL. . . . . . . . . . . . . . . . . . . . . . . . •'" °` THE STz�rE BAR OFFICE OF INVESTIGATION .z OF CALIFORNIA • V[Y=}9� 1149 SOUTH HILL STREET,4th FLOOR,LOS ANGELES,CALIFORNIA 90015.2299 (213)765-1000 FAX:(213)785.1318 February 24 , 1995 PERSONAL & CONFIDENTIAL Justin M. McCarthy, Esq. REDWINE AND SHERRILL 1950 Market Street Riverside, CA 92501 RE : Case No: 94 O 16007 Complainant : Councilman Ralph Hernandez Respondent : James F. Penman, Esq. Dear Mr. McCarthy: We have completed our investigation into the complaint filed against your client by Mr. Hernandez . We have determined that there are insufficient grounds for disciplinary action. Therefore, we are closing our file . Pursuant to Section 6086 . 11, California Business and Professions Code, if Mr. Hernandez disagrees with the closing of this file, he has the right to have this decision reviewed by the Complainants' Grievance Panel . If that review is sought, you will be notified. Thank you for your cooperation in this matter. Very truly yours, Aelia Y. mpbe Senior Investigator SYC/nw MAR 17 '95 10:57AM P.1 xaxoAAXD9U TO: Timothy J. Sabo FROM: Charles ,R. Green DATE: March 170 1995 RE: Liability of City of San Bernardino for Attorneys' Pass Incurred by James Penman; Raymond dyke and Valley Wide Newspapers vs City of San Bernardino, at all James Penman. Rell Party in Interest, San Bernardino Superior Court Cana No. SCV 16106; Our File SBE00137 You have requested my opinion as to the liability of the City of San Bernardino (the "City") for attorneys' fees incurred by James Penman, City Attorney, in the above referenced litigation. Fact Aground 1. On October 21, 1994, Raymond Pryke and Valley Wide Newspapers filed a Petition for Writ of Mandate seeking that the City be compelled to release the Sexual Harassment Investigative Report (the "Report") prepared by the law firm of Kay and Stevens in connection with certain allegations of sexual harassment against City Attorney James Penman. 2. The action filed by the Plaintiffs names the City of San Bernardino and the Honorable Thomas Minor, Mayor, as Respondents, and names James Penman, as city Attorney for the City of San Bernardino, as the Real Party in Interest. 3. In our file is a copy of a letter dated October 24, 1994, showing receipt in the Office of the Mayor on October 25, 1994, of a letter from James Penman to Mayor Minor requesting that the City retain Stacey Alstadt, of Redwine & Sherrill, to defend him in the subject matter. 4. After briefing and argument, the Superior Court issued a writ of mandate compelling a release by the City of a redacted version of the Report. �z8 MAR 17 '95 10:58AM P•2 Page Z Ana sis ' In general terms, a municipal entity has the legal responsibility of providing a defense to employees or officers in any civil action or proceeding brought against that employee or officer relating to activities within the scope of such employee or officerls employment. Govt. Code $ 995. Such a defense may be provided directly by the public entity's own attorney or by employing other counsel for this purpose. All of the expenses of providing a defense are proper charges against a public entity. Govt. Code S 996. The only prerequisite which appears to be required by law is that the officer or employee request that a defense be provided. My analysis leads to the conclusion that Mr. Penman did request such a defense, and has apparently incurred expenses in providing a defense. Mr. Penman is a specifically named party, having been designated as the Real Party in Interest by the Plaintiffs in the action, and did not voluntarily intervene in the proceeding. It should be noted that the position taken by Mr. Penman , in the action was that the Report should be released, which was contrary to the City's position. However, the pertinent statutes do not make any distinction for reimbursement of defense expenses based upon the positions taken by the parties in the litigation. Therefore, it is my conclusion that the City has an obligation under Govt. Code 5 995 to reimburse Mr. Penman for the reasonable costs of his defense. It would be appropriate to carefully review a detailed statement of the requested fees and/or costs in order to determine that they were properly incurred and are reasonable in nature. SHBOWI9'1\1�117