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Home My WebLink About15-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION Dept: City Attorney Subject: OR i C "I'~'/~L Possible Brown Act violation at Council Meeting of February 20, 2001 From: JAMES F. PENMAN Date: February 28, 2001 Synopsis of Previous Council action: On February 20, 2001, the Council voted 5-1-1 against a motion to request the City Clerk to disqualify herself as the Elections Official regarding the Referendum Against Council Ordinance MC-109l. Recommended motion: That the Staff Report be discussed, received and filed. o~~ /.?~ Vi Signature Contact person: JAMES F. PENMAN Phone: 384-5255 All Supporting data attached: Staff and 1 FUNDING REOUIREMENTS: Report, E-mail Amount: 2 memoranda Ward: Source: (Acct. No.) (Acct. DescriPtion) Finance: Council Notes: 75-Q262 j/s/O/ # Agenda Item No. IS . INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO 5T AFF REPORT It has been reported to this office that on Tuesday, February 20,2001 at the City Council meeting, a document purportedly from Deputy City Clerk Linda Hartzell (copy of E-mail attached) was distributed to at least five members of the City Council by, we were advised, Mayor Judith Valles. The document contains an allegation, by a Deputy Elections Official, of a violation of State law by the circulators of petitions, charging "... the issue was blatantly misrepresented...". Reportedly, the document was distributed during the discussion of agenda item #34, "City Clerk Conflict on Referendum Against Council Ordinance MC-1091." The document was not shared with all elected officials nor were copies made available to the press as we have previously indicated the Brown Act requires (Government Code, Section 54952.1 (b)). Moreover, the document contained evidence of a bias existing, at that time, in the City Clerk's Office against circulators of the Petition for a Referendum Against Council Ordinance MC-1091. As a result of the statement made in that document, I asked Chief Lee Dean (copy of memo attached) to please investigate said alleged violation of Section 16800 (misrepresentation by circulator) of the Elections Code. Chief Dean has concluded (copy of memo attached) that the City Clerk, by issuing a "Certificate of Sufficiency", has found no credible evidence of "actionable misrepresentations" by Referendum Petition Circulators. The failure to follow state law and City Council common practice by improper partial distribution of copies of a document relevant to an issue being considered by the Mayor and Common Council, not only makes those elected officials who withheld the document Staff Report Council Meeting of March 5, 2001 Page 2 February 28, 2001 from other elected officials (and the public and press) subject to possible prosecution for a Brown Act violation, it also impedes the ability of the Mayor and Common Council to make an accurate assessment of all of the existing facts prior to voting. We strongly recommend against any repetition of this type of conduct. R spectfully submitted, ~T.f~ 3ames F. Penman City Attorney Attachments: Three (3) City of San Bernardino San Bernardino Police Department Interoffice Memorandum To: Jim Penman, City Attorney From: Lee Dean, Chief of Police Subject: Request for Investigation Date: February 27, 2001 Copies: Judith Valles, Mayor; Rachel Clark, City Clerk I ! This is in response to your memo to me, dated February 26,2001, "Allegation of Election Code Violation from City Clerk's Office." As the City Clerk has issued a "Certificate of Sufficiency, " in the matter you reference, and in so doing has, by inference, found no credible evidence of actionable misrepresentations, any investigation by this office will be held in abeyance, absent evidence to follow, which warrants committing investigative resources to this task. cgr THE SBPD IS COMMIlTED TO PROVIDING: PROGRESSIVE, QUALITY POLICE SERVICE; A SAFE ENVIRONMENT TO IMPROVE THE QUALITY OF LIFE; A REDUcrION IN CRIME THROUGH PROBLEM RECOGNITION AND PROBLEM SOLVING , . INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO ,,~'-.;,~ 11//1' -- ':, ~~ ,~~~ ,~~,,~'.:M:''',-:i!.!/'' ~("'=:'_" :._ .~v ....,~ ,~~ _.',':""r ,,,.,-,,, /']';],11 ~t,_~~~:.1I f.,~,\~'\~' "~~~~V' .~~I,r;.;.4l'~ ,:,/1. TO: Lee Dean, Chief of Police FROM: James F. Penman, City Attorney HAND DELIVERED DATE: February 26, 2001 RE: Allegation of Elections Code Violation From City Clerk's Office COPY TO: Mayor Judith Valles, Common Council, City Clerk Rachel Clark, Chief Deputy District Attorney Tun Hackleman Enclosed is a copy of an E-mail communication from Deputy City Clerk Linda Hartzel to City Clerk Rachel Clark. The E-mail discusses Deputy City Clerk Hartzel's feelings about City Councilmember Wendy McCamrnack and includes an allegation that signatures on petitions submitted by McCanunack and former Mayor Evlyn Wilcox, seeking a referendum against a recent action of the Mayor and City Council, were obtained contrary to law. Specifically, Deputy City Clerk Hartzel alleges that" . . . some, if not all of these signatures were gathered in violation of Section 18600, Misrepresentation by Circulator, of the Elections Code, since the issue was blatantly misrepresented as dealing with an increase to voters taxes in some instances and as being an extension of Measure M." Section 18600 of the Elections Code states: "Every person is guilty ofa misdemeanor who: "(a) Circulating, as a principal or agent, or having charge or control of the circulation ot; or obtairiing signatures to, any state or local initiative, referendum or recall petition, intentiona1ly misrepresents or intentionally makes any false statement concerning the contents, purport or effect of the petition to any person who signs, or who desires to sign, or who is requested to sign, or who makes inquiries with reference to it, or to whom it is presented for his or her signature. "(b) Willfully and knowingly circulates, publishes, or exhibits any false statement or misrepresentation concerning the contents, purport or effect of any state or local initiative, referendum, or recall petition for the purpose of obtaining any signature to, or persuading or influencing any person to sign, that petition. "(c) Circulating, as principal or agent, or having charge or control of the circulation ot; or obtaining signatures to, any state or local initiative, intentionally makes any false statement in response to any inquiry by any voter as to whether he or she is a paid signature gatherer or a volunteer. " To: Lee Dean, Chief of Police Re: Allegation of Elections Code Violation From City Clerk's Office Page 2 Although Deputy City Clerk Hartzel does not provide any evidence for, or details ot; the crime she says 0CCUITed, the allegation is a serious one. The level of concern should be even greater since the allegation has been made in writing and distnbuted to a majority of the City Council during a public meeting (February 20,2001) of that body, making the document a public record. If the allegation is true, it is a misuse of the Referendum process as provided for in the City Charter and State elections code. Any person(s} who may have violated the Code should be dealt with according to law. If the allegation is false, the numerous concerned citizens who circulated the petitions deserve to be exonerated from any wrong-doing. Because the petition in question seeks to overturn a City Council action repealing a Municipal Code section providing a process for employment of outside legal counsel, this office recused itself when the petitions were filed with the City Clerk on February 14, 2001. In addition, I personally circulated a good number of these petitions and made representations to voters about the issue which I believe were completely truthful, accurate and based on fact. Obviously, the allegation of criminal conduct, made by Deputy City Clerk Linda Hartzel, before the petitions were counted or individually examined, cannot be investigated by the office of the City Attorney. Therefore, we respectfully request that the San Bernardino Police Department conduct an investigation into Deputy City Clerk Hartzel's allegation. It is our understanding that Assistant District Attorney Dan Lough has recently designated Chief Deputy District Attorney Tun Hackleman as liaison for this office. We have provided Mr. Hackleman a copy of this memorandum and the E-mail referred to herein. Sincerely, t-f~ James F. Penman City Attorney Enclosure: one (1) JFP/j. [DEAN2.MEM) ~ckNotes by CloudEight Stalionery--Flowers Page 1 oe2 Clark..Ra From: Hartze,-U Sent: Thursday, February 15, 20018:12 AM To: Clark_Ra Subject: Comments Rachel-. I I I want to deeply apologize for any shadow that might be cast over this offlce for my comments yesterday. On a personal level I do not apologize for the comments themselves (I will explain), but I would not want to do anything that would make you or your staff look bad. J offer the following comments, not as an excuse, but as an explanation, From the very beginning of Mrs. McCammack's dealings with this office, It has seemed to me that whenever she needed Information, or copies of documents, or whatever It might be, I was the person she contacted. I have consistently done my utmost to respond to her requests In a professional, thorough, and very timely manner. I might add that this also holds true for any contacts I have with the City Attorney's Offlce, whether it be with Mr. Penman himself or his staff. I, personally, found it very offensive for Mrs. McCammack to come in here yesterday and basically say that she has worries about the referendum petitions and how they will be handled by you and your staff; her comments implying at the very least that we would handle them foolishly by not locking them up or securing them in some manner, or at the very worst, that we would in some way resort to unethical or criminal behavior . by tampering, losing, or otherwise inappropriately handling the petitions. And frankly, I just couldn't swallow anymore of her rude, condesendlng behavior, which started the minute she walked through the door. Additionally, I, personally, found her remarks to be misguided In light of the fact that I believe that some, if not all of those signatures were gathered in violation of Section 18600, Misrepresentation by Circulator, of the Elections Code, since the Issue was blatantly misrepresented as dealing with an increase to voters taxes in some instances and as being an extension of Measure M. As a final note, even though I was in favor of Measure M, during that whole process I supplied Mrs. McCammack with anything and everything she requested. I might add that she has complimented me on several occasions relative to the dealings that she and I have had, For her to turn around and tell you that it is comments like mine that have led her to be suspect of this office is absolutely incredulous. In closing, let me say again that I do not want to put anymore stress or problems on your plate, as an individual or as the City Clerk of this City, than is necessary, and I sincerely apologize if this is what I have done. Sincerely, Linda P.S. Although I know in my heart the answer to this question, I've asked Vl 61200 1 QUickNotes by CloudEight Stationery-Flowers , Pap 2 oe2 mYMlf MY..... tlma Why U....1IcCuunacIc dldn.'t caJI and U/c merw the initiative guldelln.. (In""t11J of taIdng you publicly to tuk rw ~ not providing them for h.., slnee I have aIwaya been the one .he has l'8qunted Infonnatlon from In the put. Ho_.... like ~IIIIJ el.. th_ days, th_l. alwaya the hidden agencIL Se aaur.cI, Rachel, that I know you, and I know that you would have provided thia Infonnatlon for h... If aile had l'8quntecllt, juat u you cIIcI for M.... Zand... the dlly you met with the two of them. TheN would have been no I'M8On not to, slnee ahe could have very e..1Iy made a copy of U.... Zand.... document. .r.wr.z llGrCul CItg cr.rk'. QtI!ae 02116/2001