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Home My WebLink About26-City Attorney INTER OFFICE MEMORANDUM OFFICE OF THE CITY ATTORNEY CITY OF SAN BERNARDINO From: James F. Penman City Attorney Enlered Inlo Ree. at MCC/COC Mtg: ), h /0 r by: miJ. P J. -1-L -W\..(J.A1../ Agen lem No: ;Z u by: (, ~,-d\..f..( U...A-vv!z.-' City Cle CDC Secretary City of San Bernardino To: Mayor and Common Council Date: January 30,2009 Re: Final Report and Costs of Defense in the Matter of the Complaint Filed with the State Bar by Judith Valles Against .T ames F. Penman, City Attorney; Request to Utilize the Services of Attorney Erica Tabachnick to Provide Ethics Advice to City Attorney's Office on an As..Needed Basis in an Amount Not to Exceed $1,500.00 Without Further Approval of the Mayor and Common Council, and Return the Sum of$30,514.11 from the City Attorney's Budget to the General Fund CC: City Clerk, City Treasurer, City Manager On November 3,2005 Judith Valles, acting in her capacity as a private citizen initiated a complaint against San Bernardino City Attorney James F. Penman with the Office of the Chief Trial Counsel, State Bar of California. The complaint was filed on behalf of Ms. Valles by her attorney, Arthur L. Margolis of Los Angeles, California. The complaint originated out of an election campaign incident that occurred at a San Bernardino City Council meeting on September 19, 2005. The aforementioned campaign event was organized by supporters of Judge Patrick J. Morris who was running against City Attorney James F. Penman for Mayor at that time. The mayoral election was scheduled for Tuesday, November 8, 2005, five days after the November 3 complaint was filed. In summarizing the complaint, I believe it is fair to say that Ms. Valles alleged that the undersigned (Penman) should have recused himself from providing legal advice to the Common Council on agenda items dealing with allegations made by Council Member Rikke Van Johnson that the undersigned (Penman) was using his office and city resources to campaign for Mayor; that the undersigned (Penman) refused to recuse himself, and that the undersigned (Penman) falsely represented to his client, the Mayor and Common Council, that he had been cleared by the A.{,.fNJ>A rTt".fv\ *" ~ (, D:Lln.2 I () 'I Memo to MCC Final Report on Bar Investigation January 30, 2009 Page two State Bar (in February 1995) of sexual harassment charges brought by then-City Council Member Ralph Hernandez. Ms. Valles alleged that the undersigned (Penman) had therefore violated various sections of the Rules of Professional Conduct, applicable to California lawyers. Both agenda items relative to the mayoral election campaign that were to be heard at the September 19, 2005 Council meeting were tabled after supporters of candidate Morris made a series of public comments criticizing candidate Penman for various alleged misdeeds throughout his years as City Attorney. In a letter dated November 21,2005, the Public Integrity Unit of the San Bernardino County District Attorney's Office advised the undersigned (Penman) that Mr. Johnson's complaint had been received and reviewed and that no basis for action was found. "None of the allegations are criminal in nature or within the other areas of concern to this office. This letter is simply to let you know this matter is closed and this office will take no further action", the letter states. The State Bar investigation that followed included a review of its file from Mr. Hernandez' sexual harassment complaint (1994-1995), the Kaye-Stevens' Report (1994), the Bar's written analysis (February 1995) as to why the undersigned (Penman) had not done what Mr. Hernandez alleged in his complaint, and a viewing of the video tape of the September 19,2005 City Council meeting. Upon completion of that investigation, the State Bar informed Attorney Erica Tabachnick, by letter dated April 7, 2006, "that there are insufficient grounds for disciplinary action" based on the complaint filed by Attorney Arthur Margolis on behalf of Judith Valles against the undersigned (Penman). After that decision the San Bernardino City Council voted to reimburse the undersigned (Penman) the $3,000 he had paid in attorney bills plus $4,940.28 to Attorney Erica Tabachnick directly for additional work perfornled and to be performed. Following this first exoneration of the undersigned (Penman) of the allegations in Ms. Valles' complaint, she asked the State Bar to "review" the matter again. This "review" in lay persons' terms might be categorized as an appeal of the Bar's decision. The State Bar, in response to Ms. Valles' request to re-open the matter, conducted a lengthy, and costly, second investigation between April 2006 and January 2009. Subsequent to June 1,2006, the Mayor and Common Council authorized an additional $38,154.97 to be paid in attorney fees to Ms. Tabachnick for defense of the undersigned throughout the second investigation. Memo to MCC Final Report on Bar Investigation January 30,2009 Page three A letter to Attorney Tabachnick dated January 15, 2009, copy attached, states, "The State Bar has completed the investigation of the allegations of professional misconduct reported by Arthur Margolis (on behalf of Judith Valles.) We have determined that this matter does not warrant further action. Therefore, the matter is closed." To date, the City has paid the sum of $13,890.00 to Erica Tabachnick for attorney fees and costs. Today, 1 received a final bill from Ms. Tabachnick for $191.14, bringing the total bills for the defense of this case to $14,081.14. I am pleased to report that this leaves the sum of$32,014.11 remaining of the $46,095.25 total allocated by the Mayor and Common Council for this case. Because ethics issues frequently arise making it necessary for attorneys in our office to seek the advice of expert counsel, I recommend that the City Attorney's office be authorized to consult with Attorney Erica Tabachnick on ethics issues involving any employee in the City Attorney's office and to pay a sum not to exceed $1,500 to Attorney Tabachnick without prior approval of the Mayor and Common Council. Finally, I recommend that the remaining $30, 514.11 be returned to the City's general fund as part of the budget savings the City Manager has asked the City Attorney's office to contribute for the balance of the 2008 - 2009 fiscal year. I want to thank the Mayor and members of the Common Council for their support throughout the two State Bar investigations addressed by this final report. I believe that our ethical standards as public attorneys should be even higher than the minimum required by the State Bar. Because that higher level of integrity and professionalism has been achieved and maintained by all of us in the City Attorney's office, the State Bar has consistently validated the actions and conduct of our attorneys, including the undersigned (Penman) whenever any allegation to the contrary has been asserted. Respectfully submitted, 7-f~ James F. Penman City Attorney 8:i/21/2B89 11: 55 2138954544 Jan L I LU\J::J IL. I r~m ETABACHNICK PAGE 03/03 I\l::I.'CIVt:lJ. THE STATE BAR OF CALIFORNIA OFFICE OF TIlE CHIEF TRIAL COUNSEL ENFORCEMENT Scott J. Drexel, Chief Trial Counsel 1149 SOoTH HILL STREET. LOS ANGELES. C~LlfORN1A 90015-2299 TELEPIiONE: 12131765-1000 FAX: 1213\ 765-1lB3 http://www.::.Dlbflr.ca...gCI.\I DIRECT DIAL: (213) 765.1091 January 15,2009 PRIVILEGED AND CONFIDENTIAL Erica A. Tabachnick 900 Wilshire Blvd. #1000 Los Angeles, CA 90017 Re: Respondent: Case Number: Complainant: James Penman 08-0- J 0457 Arthur Margolis Dear Mrs. Tabachnick: This letter is sent to you based upon information that you currently represent the Respondent in this matter. If this is incorrect, please advise me within five days so that I may direct this letter to the Respondent personally. The State Bar has completed the investigation of the allegations of professional misconducr reported by Arthur Margolis. We have determined that this matter does not warrant further action_ Therefore, the matter is closed. The decision to close this matter is without prejudice to further proceedings as appropriate pursuant to rule 2603 of the Rules of Procedure of the State Bar of California. Thank you for your cooperation in this matter. Very truly yours, . r ':'i- ~ l (r:--7( l~fU-t7tt~. 7. Jv-/CIt-u Willi am F. S tralka Deputy Trial Counsel ,j~1 wfs