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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From:
Councilman Chas A. Kelley
Fifth Ward
Subject: City Attorney Memo on Parolee
Housing dated January 7,2008
Dept. Council Office
Date: January 17, 2008
MCC Date: January 22, 2008
Synopsis of Previous Council Action:
Recommended Motion:
That the memo dated January 7,2008, be received and filed.
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Contact Person: Councilman Chas Kellev
Phone:
5278
Supporting Data Attached:
Ward:
FUNDING REQUIREMENTS:
Amount:
Source: (Acct. No.1
(Acct. DescriDtion 1
Finance:
Council Notes:
Agenda Item No.
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INTER OFFICE MEMORANDUM
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
TO:
Legislative Review Committee
Councilmember Chas Kelley - Chairman
Councilmember Neil Derry
Councilmember Tobin Brinker
FROM:
Henry Empeiio, Jr., Senior Deputy City Attorney
DATE:
January 7, 2008
RE:
Parolee Hou.ina; LM 08-001
At the Legislative Review Committee meeting on December 18, 2007, Councilmember
Neil Deny requested that the City Attorney's Office research whether the City can limit its
housing to parolees who lived in the City prior to incarceration. Subsequent to this Legislative
__ Review Committee meeting, the Mayor's Parolee Reentry Ad Hoc Committee held a meeting
\....... on January 3, 2008, with representatives from the San Bernardino County Probation
Department, Goodwill Industries, and Cal State University San Bernardino to discuss parolee
reentry programs. Councilmember Deny's question was related to his concern that the City's
support of these parolee reentry programs will attract more parolees to live in the City of San
Bernardino, unless these programs can validly restrict their housing facilities located in the City
only to parolees who resided in the City prior to incarceration.
Penal Code Section 3003 provides that an inmate who is released on parole shall be
returned to the county that was the last legal residence of the inmate prior to his or her
incarceration, unless the paroling authority (Board of Parole Hearings or the Department of
Corrections and Rehabilitation) finds that the inmate may be returned to another county if that
would be in the best interest of the public.
While state law is silent as to which city in the county the inmate must reside in, it is clear
that the City of San Bernardino current1y bears a disproportionate burden of parolees. At the
Mayor's Parolee Reentry Ad Hoc Committee meeting, Cal State San Bernardino representatives
reported that while the City of San Bernardino is home to only 10"10 of the County's population,
the City is home to 23% of the County's parolees, and stated that this disparity is greater than
any comparable California county seat.
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Although we have found no court cases deciding this issue, Penal Code Section 3003
likely preempts the City from passing any City lawwhich prohibits any parolee from living in the
City unless his or her last legal residence was in the City prior to his or her incarceration. The
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Memo to Legi..JA1ive Review Committee
Re: Parolee Housing; LM 08-001
January 7, 2008
courts will likely find that the subject of where an inmate on parole is released, is not a municipal
affilir but a matter of statewide concern, and that the state legi..1smlre intended to occupy this
field to the exc1usion of all local regulation. Inre Moss (1962) 58 CaI.2d 117, Bravo VP.ndinV
v. C~ ofJlAnr.hn Minuze (1993) 16 CaI.App.4th 383, Water 0uaIitv AlUI1I v. Countv of SAntA
Barbara (1996) 44 CaI.App.4th 732.
On the other hand, we believe that a parolee reentry program may validly limit its housing
facilities located in the City only to parolees who lived in the City prior to incarceration,
provided that California Department of Corrections and Rehabilitation, County Probation, and
the sponsoring non-profit organizations managing these housing facilities cooperate and consent
to such a restriction. Such housing facilities may also be further restricted by conditions and
requirements imposed by Federal and/or State funding sources. The Mayor's Office has
proposed that the City support and partner with County Probation and local nonprofit
organizations, such as Goodwill, to establish large residential facilities (more than six persons)
as regimented, transitional facilities for parolees in industrial zoned areas of the City.
Representatives from the County and Goodwill at the Mayor's Parolee Reentry Ad Hoc
Committee meeting, stated their intent that these parolee housing facilities, with the City's
support, be limited only to parolees who have established prior residence in the City of San
Bernardino. The City's support of such parolee housing facilities would be similar to the City's
support and funding of any nonprofit organization providing assistsnce to City residents.
From our legal research, we also have found no legal authority which prohibits the City
from adopting zoning ordinances which authorize these large residential facilities (more than six
persons) for parolees in industrial zoned areas of the City with a Conditional Use Permit, with
the requirement that residents are limited to parolees who made the City of San Bernardino their
last legal residence prior to their incarceration. Such new zoning ordinances will not restrict all
parolee housing in the City, and will not affect state licensed residential care facilities, but only
large residential facilities.
Respectfully submitted.
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ffenry Empeiio, Jr.
Senior Deputy City Attorney
cc: Mayor and Council
James F. Penman, City Attorney
Rachel Clark, City Clerk
Mayor's Parolee Reentry Ad Hoc Committee
Fred Wilson, City Manager
Mike Billdt, Chief of Police
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