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Home My WebLink About21-City Attorney GITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMESf. PENMAN CITY ATTORNEY Dept: CITY ATTORNEY O ,.. · .", .. .. .. , L ..h'j' .,.,i Vj'i, Subject: Request for City Clerk to be authorized, subject to the recommendation of the City Attorney, to retain outside special counsel services for the purpose of preparing a ballot title and summary ofa statutory initiative measure establishing Chapter 2.20 in the San Bernardino Municipal Code relating to City Attorney approval to retain outside special counsel services Date: February 1,2001 Synopsis of Previous Council Action: None, Recommended motion: That the City Clerk be authorized, subject to the recommendation of the City Attorney, to retain outside special counsel services for the purpose of preparing the ballot title and summary of a statutory initiative measure establishing Chapter 2.20 in the San Bernardino Municipal Code relating to City Attorney approval to retain outside special counsel services, :r Ii Signature Contact person: JAMES F. PENMAN. Citv Attorney Phone: 5255 Supporting data attached: Staff Report Ward: All FUNDING REQUIREMENTS: Amount: Unknown Source: Finance: Council Notes: Agenda Item No. ell ~ } 5 }OJ STAFF REPORT Council Meeting Date: February 5, 2001 TO: FROM: DATE: AGENDA: Mayor and Common Council City Attorney's Office February 1, 2001 Agenda Item #21 Agenda Item #21 for the Mayor and Common Council meeting of February 5,2001 is a request that the City Clerk be authorized, subject to the recommendation of the City Attorney, to retain outside special counsel services for the purpose of preparing the ballot title and summary of a statutory initiative measure establishing Chapter 2.20 in the San Bernardino Municipal Code relating to City Attorney approval to retain outside special counsel services, On January 16, 2001, the Council passed and adopted Ordinance No. MC-I 091 which repeals Chapter 2.20 of the San Bernardino Municipal Code relating to City Attorney approval to retain outside special counsel services. The effective date of that repeal will occur around mid-February. A referendum effort is underway to overturn that Council decision. It is expected that regardless of the result of the referendum signature gathering effort, an initiative drive will soon commence to place before the voters a measure to establish by a vote of the people (if the Mayor and Common Council do not enact it) the equivalent of what is now in Chapter 2.20 of said Code. By written memorandum dated January 18, 2001, this office received a request for a written legal opinion concerning the collection of signatures for a ballot referendum. Given the nature and wording of this written request, it was interpreted to also seek guidance for other legal signature gathering activities, such as petitions, initiatives, or recall, or the dissemination of information opposing same. The City Attorney's office issued its written legal opinion on this First Amendment inquiry on February 1,2001. After the Mayor and Common Council approved the requisite resolutions on August 4, 2000, thus placing what is now known as Measure M on the November ballot, pursuant to Section 2.20.040 of the San Bernardino Municipal Code the City Attorney conflicted off from preparing the impartial analysis of that ballot measure because now that it had qualified for the ballot, part of Measure M affected the operations of the City Attorney's office. The San Bernardino law firm of Gresham, Savage, Nolan & Tilden was retained by the Mayor and Common Council to prepare said impartial analysis. People disagreeing with that impartial analysis challenged its accuracy and correctness in San Bernardino Superior Court and lost. One of the first actions to be taken when an initiative effort is commenced is found in 99203 of the California Elections Code, which states in relevant part as follows: "~9203. Filing of proposed measure; Request for preparation of ballot title and summary (a) Any person who is interested in any proposed measure shall file a copy of the proposed measure with the elections official with a request that a ballot title and summary be prepared. . . . The elections official shall immediately transmit a copy of the proposed measure to the city attorney. Within 15 days after the proposed measure is filed, the city attorney shall provide and return to the city elections official a ballot title for and summary of the proposed measure. . , ," While there is no legal conflict in the City Attorney's office preparing the title and summary of a proposed ballot measure dedicated to the establishment of the current wording in Chapter 2.20 of the San Bernardino Municipal Code, since the expected initiative petition would be dealing solely with a subject matter that would affect the operations of the City Attorney's office, there is arguably the appearance of a conflict. This appearance of a conflict should be eliminated, particularly since the title and summary of a proposed initiative is not reviewed nor approved by the Mayor and Common Council. Accordingly, it is recommended that the Mayor and Common Council adopt the proposed floor motion as set forth under Agenda Item #21. . INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO TO: Mayor and Common Council FROM: James F. Penman City Attorney DATE: February 2, 2001 RE: BALLOT TITLE AND SUMMARY FOR INITIATIVE-AGENDA ITEM #21 In this morning's newspaper, I read remarks attributed to Second Ward Councilwoman Susan Lien and to Marketing/Public Affairs Officer June Durr to the effect that authorization to hire outside counsel to prepare a ballot title and summary for a pending initiative is premature because the initiative has not yet qualified for the ballot. Section 9203 of the California Elections Code requires the City Clerk to immediately transmit to the City Attorney any proposed initiative measure in order for the City Attorney to prepare a ballot title and summary. The City Attorney has fifteen days from the date the measure is filed to provide and return to the Elections Official a ballot title and summary for the proposed measure. The ballot title and summary must be prepared before the petition may be circulated, The ballot title and summary must be printed at the top of each page on the petition being circulated. It is unfortunate that the statements as reported in the newspaper, if accurate, were made without prior consultation with the City Attorney's Office or the City Clerk's Office. I would encourage all councilmembers and all spokespersons for the Mayor to set aside an hour or two to read the City Charter. By becoming familiar with the provisions of the City Charter and by consulting the City Attorney and/or City Clerk in matters such as that addressed herein, it may be possible for City officials to avoid further embarrassment to themselves in the future, Should the City Council decline to approve the action recommended on agenda item number 21 during the Council meeting scheduled for February 5, 2001, the Mayor and Council will be deemed to have waived any conflict, or the appearance thereof. The Office '" To: Mayor and Common Council Page 2 February 2, 2001 of the City Attorney will then proceed to prepare the ballot title and summary for the initiative petition that will be presented to the City Clerk next week. We do not recommend this waiver, however. Because there is a time limit imposed by law, and because there will be insufficient time to comply with the law if we wait until the next council meeting, the first meeting in February is the appropriate time for the Mayor and Common Council to take the recommended action. Re pectfully submitted, 1.P~ cc: City Clerk City Treasurer City Administrator All Departments Heads