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HomeMy WebLinkAbout01-16-2001 Minutes MINUTES MAYOR AND COMMON COUNCIL AND COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO JOINT ADJOURNED REGULAR MEETING JANUARY 16, 2001 COUNCIL CHAMBERS This is the time and place set for a joint adjourned regular meeting of the Mayor and Conunon Council and Conununity Development Conunission of the City of San Bernardino from the joint regular meeting held at 8:08 a.m., Monday, January 8, 2001, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. The City Clerk has caused to be posted the order of the adjournment of said meeting held on Monday, January 8, 2001, and has on file in the Office of the City Clerk an affidavit of said posting together with a copy of said order which was posted at 8:15 a.m., Tuesday, January 9, 2001, on or near the door of the place at which said meeting was held. The joint adjourned regular meeting of the Mayor and Conunon Council and Conununity Development Conunission was called to order by Mayor Pro Tern Estrada at 9:05 a.m., Tuesday, January 16, 2001, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. ROLL CALL Roll call was taken by City Clerk Clark with the following being present: Mayor Pro Tern Estrada; Council Members Estrada, Lien, McGinnis, Schnetz, Suarez, Anderson, McCammack; City Attorney Penman, City Clerk Clark, City Administrator Wilson. Absent: None. ORD. MC-I091 - AN ORDINANCE OF THE CITY OF SAN BERNARDINO REPEALING CHAPTER 2.20 OF THE SAN BERNARDINO MUNICIPAL CODE RELATING TO CITY ATTORNEY APPROVAL TO RETAIN OUTSIDE SPECIAL COUNSEL SERVICES. Final (1) . City Attorney Penman submitted the following into the record: 1) A memorandum dated December 21, 1998, which was written by him and addressed to 'the Mayor and Conunon Council regarding the Cinema Star Multiplex Theater Project Documents, and 2) A letter dated August 9, 2000, from Attorney Allen B. Gresham 1 1/16/2001 and addressed to Mayor Judith Valles and City Attorney James F. Penman regarding Section 241 of the City Charter. Council Member Lien made a motion, seconded by Council Member McGinnis, that full reading of the ordinance be waived and that said ordinance be adopted. (Note: The vote was taken after discussion and conunents.) Robert Richardson, 2716 Lawrence Avenue, San Bernardino, CA, stated he did not like the dissention going on in the City; however, he could see that millions could be spent on lawyers with the repeal of Chapter 2.20 of the San Bernardino Municipal Code. E. C. Keller, 1696 Mesa Verde, San Bernardino, CA, stated he was against sweeping changes to the code; however, if it was adopted there should be a provision that no law office would be engaged as outside counsel if that law office or any members of the firm have contributed to the campaign of any City Council member. The following individuals spoke in opposition to the proposed ordinance: Richard & Judith Gardner, 666 E. 16th Street, San Bernardino, CA. Andy Gray, 3245 Arrowhead Avenue, San Bernardino, CA. Louis & Doris Pappas, 272 East 41st Street, San Bernardino, CA. Jack & Colleen Corbin, 4767 "E" Street, San Bernardino, CA. Stephanie Allen, Box 5411, San Bernardino, CA. David McCammack, 634 E. Parkdale Drive, San Bernardino, CA. Valerie Lichtman, 860 E. Bernard Way, San Bernardino, CA. Jim Sivelle, 5350 Park Lane, San Bernardino. CA. John Hakkid, 632 W. 36th Street, San Bernardino, CA. Ruben Lopez (could not attend, but submitted a letter read into the record by the City Clerk) The following individuals spoke in support of the proposed ordinance: Shirley Goodwin, 3715 Camellia Drive, San Bernardino, CA. Jaime Alvarez, 201 North "E" Street, San Bernardino, CA. Gil Navarro, Chairman, Mexican American Political Association, PO Box 1396, San Bernardino, CA, read and submitted into the record a letter addressed to the Mayor and Conunon Council. Dr. Elsa Valdez, Vice-chair, Mexican American Political Association, PO Box 1396, San Bernardino, CA. Brenda Akers, 1416 Kendall, San Bernardino. CA. Gail Fry, 7066 Andes Trail, Apple Valley, CA. 2 1/16/2001 Many of the speakers were of the opmlOn that this ordinance had been introduced as a personal attack against City Attorney Penman; they were also confused relative to what the City Charter is versus the City Municipal Code. Therefore, Mayor Pro Tem Estrada explained that although she could not speak for the other Council Members, as far as she was concerned, this action was not personally against Mr. Penman--that the repeal of Section 2.20 of the Municipal Code would not take away any powers that the Charter (which was presented and voted on by the people as Measure M) gives the City Attorney. She pointed out that what the action does is to give back to the Mayor and Council the authority to hire outside counsel without the City Attorney's permission. She noted that outside counsel is hired all the time when an attorney is needed with a special expertise that the City's own attorneys do not have; but most importantly, in order for the Council to hire outside counsel, it must be approved by the City Council-- it will not be, and cannot be, anyone Council Member talking to an attorney and having the City pay for it. Ms. Estrada also stated that should the occasion arise for hiring outside counsel, the decision would most likely include, and should include, the participation of the City Attorney in those deliberations. City Attorney Penman stated that Ms. Estrada was correct that the action does not take away any authority that the City Attorney has under the Charter; however, it was not correct that the action would get the Council back the authority they had prior to the enactment of Section 2.20 of the Municipal Code. He advised that in 1896 the California Supreme Court ruled in a case that the legislative body could not hire outside counsel to do the job that the voters had elected an attorney to perform; and in 1905, when the Elected Citizens Conunittee considered the Charter, it included men very knowledgeable in legal affairs, who were as familiar with case law during the previous nine years as we are today. Mr. Penman stated that in 1916 the courts again ruled that insofar as cities are concerned, the phrase "necessary and proper," which is in our Charter relative to hiring outside counsel, meant when the City Attorney is unwilling or unable to perform his duties. City Attorney Penman also referred to the opinion he had introduced into the record from the law firm of Gresham, Savage, Nolan & Tilden, LLP, the firm that the Council hired to give them advice on the Charter (Measure M), which sets forth these same facts. He explained that Section 2.20 of the Municipal Code was enacted because the Mayor at the time was interfering with the then City Attorney's running of his own office. It was enacted to make sure that the then Mayor and Council followed case law. He advised that with the repeal of Section 2.20, the Mayor and Council will be going against state law if they hire their own attorney without the consent of the City Attorney or if they hire their own attorney when the City Attorney is willing and able to perform 3 1/16/2001 his duties; however, a taxpayer would have to take the Mayor and Council to court in order to enforce that. He stated that the Council was putting the burden on the taxpayers to make them comply with the law, which was going to result in a lot of additional money for outside counsel and litigation, because several citizens had already told him that the fIrst time it is done, they are going to bring a lawsuit. In sununation, City Attorney Penman voiced his opinion and allegations that this is merely a subterfuge (and with the exception of Council Member Estrada who has always wanted the repeal of Section 2.20 so she could hire her own attorneys) which is against him personally and in retaliation against the voters for voting against Measure M. He advised that over 70 citizens had met for a business meeting over the weekend and they had informed him that they were going to hring a referendum to put this issue on the ballot if it is approved. Council Member Lien stated that she wanted everyone to know that sometimes the City Attorney's opinion is not always correct, and we have all made mistakes. She stated that she came here today fully intending to support this action, as she believes it would be the best thing for the City; however, she needs the people of the Second Ward to work with her to clean this city up--that they have been very supportive of the hard work that the Mayor and Council have been trying to do, and even though she disagrees with Municipal Code Section 2.20 and thinks that it is financially and legislatively prudent for the Council to rescind it, she did not think it was in the best interest of the city to pass this ordinance because of the possibility of a referendum. Ms. Lien stated she wanted to make one thing perfectly c1ear--that whenever the Council wants to get a second opinion after the City Attorney's OffIce has provided some services and the Council still has doubts and feels they need a second opinion-- that the City Attorney better say "yes." She stated that this is what this is about--it's not about taking power away from the City Attorney's Office--it's about this onerous ordinance that says that even if the Council does have the City Attorney's permission to get a second opinion that it has to go through his office and that he has to review it, coordinate it, make sure it is not a duplication of his own legal services--which is exactly what the Council needs sometimes, is to duplicate the City Attorney's legal services and get another opinion, because we all know that an opinion can be incorrect. Therefore, even though she would like to repeal this, she was not going to vote to repeal it. City Attorney Penman stated he did not have a problem with second opinions when there is a legal issue involved and it is needed. He stated he sought a second opinion on the letter he wrote to Mr. Duran, as to whether it might cause any exposure to the City. His objection has been when it is a political issue with the Mayor and Council that they disagree. 4 1/16/2001 Ordinance No. MC-1091 was adopted by the following vote: Ayes: Council Members Estrada, McGinnis, Schnetz, Suarez. Nays: Council Members Lien, Anderson, McCanunack. Absent: None. ADJOURNMENT (2) At 10:05 a.m., the meeting was adjourned. The next joint regular meeting of the Mayor and Conunon Council is scheduled for 8:00 a.m., Monday, January 22, 2001, in the Council Chambers of City Hall, 300 North "D" Street, San Bernardino, California. RACHEL G. CLARK City Clerk By Ix!L~ P. 4~jJ Linda E. Hartzel Deputy City Clerk No. of Items: 2 No. of Hours: 1 5 1/16/2001