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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
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From:
Councilwoman Esther R. Estrada
First Ward
Subject: Issuing of Subpoenas to City
Employees
Dept. Council Office
Date: August 26, 2008
MCC Date: September 2, 2008
Synopsis of Previous Council Action:
Recommended Motion:
To discuss and take action on issuing subpoenas to the following persons to
appear before the City Council in Executive Session to answer questions and
provide information on illegal activities at Operation Phoenix and other Park &
Recreation Community Centers:
Glenn Baude, former Operation Phoenix Director
Chief Mike Billdt, Police Department
Kevin Hawkins, Director, Parks, Recreation & Community Services
Curtis Brown, Recreation Superintendent
Glenda Robinson, Recreation Supervisor
~~~
Signature
Contact Person: Councilwoman Esther Estrada
Phone:
5268
Supporting Data Attached:
Ward:
FUNDING REQUIREMENTS:
Amount:
Source: (Acct. No.l
(Acct. Descriotion l
Finance:
Council Notes:
Agenda Item No. ~ q
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City Attorney
DRAFT
INTER OFFICE MEMORANDUM
OFFICE OF THE CITY ATTORNEY
CITY OF SAN BERNARDINO
Opinion No. 08-02
August 29,2008
TO: Council Member Esther Estrada
RE: Authority of Conunon Council to Subpoena Individuals or Materials
ISSUE
What is the legal authority of the Conunon Council to issue subpoenas?
CONCLUSION
The Conunon Council has the power to employ the subpoena process pursuant to California
Government Code Sections 37104 et seq. The Conunon Council is also delegated the inherent
power of the City to utilize any legal means to enforce its authority to compel the attendance of
witnesses and the production of papers in any matters under investigation. San Bernardino City
Charter Section 34. This inherent power includes the power to employ the subpoena process. The
Conunon Council may issue a subpoena in the same manner as for adoption of an order or
resolution. San Bernardino City Charter Section 40(aa). Upon the failure of the subject of the
subpoena to comply, the failure shall be reported to a judge of the superior court for enforcement
through court action. Government Code Section 37106.
FACTS
Council Member Esther Estrada has requested an opinion that sets forth the legal authority
of the Conunon Council to subpoena individuals and materials.
F:\Wll..SON\Opinions\Opinion subpoena powers 829.wpd
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,
Council Member Esther Estrada
August 29, 2008
Page 2
City Attorney
DRAFT
ANALYSIS
Subpoena is specifically defined by California law as:
The process by which the attendance of a witness is required...It is a
writ or order directed to a person and reauirinl! the person's
attendance at a particular time and place to testify as a witness. It
may also require a witness to bring any books, documents, or other
things under the witness's control which the witness is bound by law
to produce in evidence. (Emphasis added.) Code of Civil Procedure
Section 1985 (a).
A basic grant of authority for the exercise of the subpoena power by a legislative body is
found in California Government Code Section 37104. There it is stated that:
The legislative body may issue subpenas (sic) requiring attendance of
witnesses or production of books or other documents for evidence or
testimony in any action or proceeding pending before it.
The Common Council may thus issue subpoenas following the procedures described in this section
and the related sections of the general law.
Independent of this general law grant, the Common Council has the authority to compel the
appearance of witnesses and the production of documents under the San Bemardino City Charter (the
"Charter"). In this regard, the opinion requested raises at least two questions of first impression
under the Charter: 1) Does the subpoena power lie within the powers available to be exercised by
the City through the Charter? and if so, 2) What is the manner in which that power is exercised?
It shall be competent in any city charter to provide that the city
governed thereunder may make and enforce all ordinances and
regulations in respect to "municipal affairs", subject only to
restrictions and limitations provided in their several charters and in
respect to other matters they shall be subject to general laws. City
charters adopted pursuant to this Constitntion shall...with respect to
municipal affairs...supersede all laws inconsistent therewith.
(Emphasis added.) CaL Const. Art. II, Section 5.
Through the process authorized by the California Constitution, a body of electors adopts a
charter. All power relative to the municipal affairs of the City flows from these electors and the
charter they adopt. In the charter, the electors make a delegation of authority to the positions and
bodies defined in the charter, reserving some authority to themselves. San Bernardino City
Attorney's Office Opinion Nos. 10.12 and 92-10, Isaac v. City of Los Angeles (1998) 66 Cal.
AppAth 586, 599; Jackson v. City of Los Angeles (2003) 111 Cal.AppAth 899, 906; Adams v. Wolff
(1948) 84 CaLApp.2d 435,442-443; Alesi v. Board of Retirement (2000) 84 Cal.App.4th 597, 603-
604.
The question of whether the power to subpoena lies within the powers available to be
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City Attorney
Council Member Esther Estrada
August 29, 2008
Page 3
DRAFT
delegated by the electors through the Charter is answered directly and in the affirmative in the case
of Brown v. City of Berkeley (1976) 57 Cal.App.3d 223. In that case it is stated that the power to
utilize the subpoena process is a municipal affair and is among the powers that are a proper subject
for legislative action by a charter city. ld. at 236.
Given that the electors of the City of San Bernardino obtained the authority to delegate the
power of the subpoena through the City Charter, it remains to interpret the language of the Charter
to divine the intent of the electors with respect to the distribution of that power among the positions
and bodies of the City.
A municipal charter is subjectto the same rules of interpretation as apply to laws adopted by
the state legislature. "...The provisions ofa charter are the law of the State and have the force and
effect of legislative enactments." Cal. Const. Art. 11, Section 3( a). Since a charter provision has
the same force and effect as a law adopted by the state legislature it is to be construed as such. Bruce
v. Civil Service Board (1935) 6 Cal.App.2d 633, 636; see also Castaneda v. Holcomb (1981) 114
Cal.App.3d 939, 942.
The ultimate purpose oflegislative interpretation is to determine the intent of the electorate.
As the court stated in Mason v. Retirement Board of the City and County of San Francisco (2003)
III Cal.AppAth 1221,1227: "Our primary goal is to ascertain legislative, in this case voter, intent.
(Citations omitted.) That intent should be determined, ifpossible, from the language of the statute
at issue. (Citations omitted.) If, however, the statutory language does not provide a clear answer,
we may turn to other rules of interpretation."
The Charter nowhere uses the term "subpoena" with respect to a grant of authority to the
Common Council. Given the plain language of the Charter, if the question truly is one of the
Common Council's legal authority to exercise the subpoena, the answer may be that the languge is
ambiguous. "If the plain language of a statute is unambiguous, no court need, or should, go beyond
that pure expression oflegislative intent." Green v. State (2007) 42 CalAth 254, 260.
The Common Council does have subpoena power, notwithstanding the absence of that
specific terminology. Section 34 of the Charter states the Common Council shall have the authority
to "...compel the attendance of witnesses and absent members; the production of papers in matters
under investigation...." To arrive at the conclusion that the Common Council has the subpoena
power this language must be read in conjunction with Section 40(aa). Before doing so, however,
background information is required. Among the powers assumed by the electors at the time the
Charter was adopted were enumerated and additional powers. These additional powers consist of
those legislative powers relative to municipal affairs that are not specifically enumerated in the
Charter and are not specifically denied to the City by its charter or an appropriately adopted general
law. Jackson, supra, III Cal.AppAth at 906. Charter Section 40(aa) makes that delegation of
additional powers in the Charter. Of relevance here, Charter Section 40( aa) states that the Council
is granted the "...power to...do and perform any and all other acts and things necessary or proper to
complete execution of the powers vested by law or this Charter, or inherent in the municipality, or
that may be necessary or proper for the general welfare of the City...."
A combined reading of the above-cited language from Sections 34 and 40(aa) of the Charter
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Council Member Esther Estrada
August 29, 2008
Page 4
City Attorney
DRAFT
establishes that the Common Council may exercise any such mechanism as is available under the
law or the Charter to "...complete execution of the powers...." to comnel the attendance of witnesses
and the production of papers. In its articulation that the Council is delegated the "...power to...do
and perform any and all other acts and things necessary or proper to complete execution of the
powers vested by this Charter," Charter Section 40(aa) provides authority for the Council, through
this delegation to it of the "additional" power to access any process, including the subpoena process,
to support its actions under Charter Section 34. Government Code Sections 37104 et seq, Code of
Civil Procedure Section I 985(a), Brown, supra, 57 Cal.App3d at 236. The Charter sets forth as an
enumerated power of the Common Council the power to compel; one means through which that
power may be exercised is the subpoena power; the Charter grants to the Common Council the
authority to access the power of the subpoena in support of the enumerated power to compel.
The subpoena process is commenced by adoption of an order requiring attendance of
witnesses or production of documents. The subpoena may be issued under the authority of the
general law (Government Code Sections 37104 et seq), and/or under the authority of Charter Section
34 as discussed above. In either case, the order is issued by the Common Council. Government Code
Section 37104; Charter Section 30. For the order to issue under the Charter, it must meet the
requirements for adoption set forth in Charter Sections 30 and 31. If issued under the general law
the subpoena shall in addition be signed by the Mayor and attested by the City Clerk. Government
Code Section 37105. In either case, the subpoena shall be served as in any civil action [d. If any
person fails or refuses to obey the subpoena, the matter may be referred to the superior court for
enforcement. If action is taken under the general law, the matter shall be reported by the Mayor.
Government Code Section 37106.
The duty of the Mayor to sign the subpoena per Government Code Section 37105 is a
ministerial as opposed to a discretionary act. An act is ministerial when it is the doing of a
certain thing that is unqualifiedly required. Where the law prescribes and defines the duties
to be performed by a public officer with such precision and certainty as to leave nothing to the
exercise of discretion or judgment, the act is ministerial. Findleton v. Board of Supervisors
(1993)12 Ca!. App. 4th 709, 713. Discretionary acts are those wherein there is no hard and fast
rule as to the course of conduct that one must or must not take and, if there is a clearly defined
rule, such eliminates discretion. Elder v. Anderson (1962) 205 Cal. App. 2d 326, 331. On
consideration by the Common Council of the question as to whether a subpoena shall issue,
the Mayor may exercise discretion as to his or her support or lack of support for the
proposition in the manner set forth in the Charter. Charter Sections 30 and 31. Upon the
question being decided, and the order, resolution or ordinance, ifadopted, containing an order
to the Mayor to carry out the functions required by Government Code Section 37104 et seq.,
the actions of the mayor become ministerial in that regard. ("Any ordinance passed by a
municipal corporation within the scope ofthe authority expressly conferred on it has the same
force within its corporate limits as a statute passed by the Legislature has throughout the
state." Brown v. City of Berkeley supra at 231; "it is elementary that public officials must
themselves obey the law" Wirin v. Parker (1957) 48 Ca!. 2d 890, 894).
Charter Section 34 arguably authorizes the Common Council to take action that is
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Council Member Esther Estrada
August 29,2008
Page 5
independent of the subpoena power for compelling the attendance of witnesses and the production
of papers. In that there is no specific designation of a form of compulsion; given the broad grant of
authority to the Council under Charter Section 40(aa); and, to the extent that there is no specific
prohibition on compulsion otherwise appearing in the Charter, the Cornmon Council has available
to it any lawful means, and not only the subpoena, by which to compel attendance and production
under Charter Section 34. In compelling the attendance of City employees, the Cornmon Council
may consider the issuance of an order to the Mayor to take action under Charter Section 50, which
requires that .....Any defamation or willful neglect of duty or official misconduct which may be
reported or discovered by the Mayor shall be laid before the Cornmon Council in order that public
interests may be protected and the person in default proceeded against according to law...." Upon
the failure of the Mayor to honor an order from the Cornmon Council to take action by producing
for their inspection the appropriate documents and/or persons, the Cornmon Council may bring a writ
of mandate against the Mayor in the superior court to compel the Mayor to comply with their order.
Code of Civil Procedure Section 1085.
Respectfully submitted,
John F. Wilson
Senior Assistant City Attorney
I concur:
JAMES F. PENMAN
City Attorney
DRAFT
City Attorney
cc: Patrick J. Morris, Mayor
Council Members
Rachel Clark, City Clerk
Fred Wilson, City Manager
David C. Kennedy, City Treasurer
All Department Heads
San Bernardino Fire Fighters' Local 891
San Bernardino Police Officers' Association
San Bernardino Management Association
San Bernardino Public Employees' Association
San Bernardino Confidential-Management Association
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