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HomeMy WebLinkAbout02-City Attorney CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: JAMES F. PENMAN Subject: Proposed Charter Amendment __ Prosecution of State law violation~ (misdemeanors and infractions) Dept: City Attorney Date: July 21, 1988 Synopsis of Previous Council action: None. Recommended motion: Adopt Items 1, 2, 3 and 4 as indicated on the attached Staff Report. -/L Signature James F. Penman, City Attorney Contact person: James F. Penman Phone: 5255 Supporting datI attached: Ward: FUNDING REQUIREMENTS: Amount: Source: (ACCT. NO.) (ACCT. DESCRIPTION) Finance: Council Notes: ? elTY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION STAFF REPORT In 1971, Section 55(d) of the Charter of the City of San Bernardino was amended to delete the requirement that the City Attorney prosecute state misdemeanor violations. This was apparently done as a cost saving measure since the District Attorney was already set up to handle these types of prosecutions. In recent years, the question has been raised whether, by this action, the people intended to prohibit only the general misdemeanor prosecutions, or to also prohibit the prosecutions of such actions as are specifically granted by law to the City Attorney. The power of the City Attorney to proceed in these areas is further called into question by a recent Attorney General Opinion (No. 87-302). Attached is a proposed Charter amendment which would give the City Attorney the power, but not necessarily the responsibility, to prosecute certain state misdemeanors and infractions. This would include violations relating to dance studio contracts (CiVil Code Section 1812.63), violations relating to human whole blood, human whole blood derivatives and other biologics (Health & Safety Code Section 1618), failure of service stations to have adequate water and air facilities available for use by the public (infraction - Business and Professions Code Sections 13652 and 13653), maintenance of a public nuisance (Penal Code Section 373a), as well as violations of the Political Reform Act (Government Code Section 91001.5). lThis amendment would also grant the enforcement power for drug and vice prosecutions which require the approval of the District Attorney (see Government Code Section 41803.5). It is recommended that the Mayor and Common Council: 1. Approve the Resolution of the City of San Bernardino proposing an amendment of the Charter of said City allowing the prosecution of certain state misdemeanor and infraction violations by the City Attorney. 2. Approve the Resolution of the City of San Bernardino submitting to the electors a proposed Charter Amendment which would grant the City Attorney the authority to prosecute certain violations of state law which are misdemeanors or infractions and requesting that such special municipal election be consolidated with the general election conducted by the County of San Bernardino. 3. Direct the Acting City Administrator and the Acting Finance Director pursuant to San Bernardino Municipal Code Section 2.56.190, to prepare an impartial fiscal analysis of the measure showing the amount of any increase or decrease in revenue or cost to the City. 75-0264 4. Direct the City Attorney, pursuant to Elections Code Section 5011, to prepare an impartial analysis of the measure showing the effect of the measure on existing law and the operation of the measure. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO PROPOSING AN AMENDMENT OF THE CHARTER OF SAID CITY ALLOWING THE PROSECUTION OF CERTAIN STATE MISDEMEANOR AND INFRACTION VIOLATIONS BY THE CITY ATTORNEY. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS:' SECTION 1. Recitals. ( a ) In accordance with the Constitution of the State of California, the City of San Bernardino, a municipal corporation, has adopted a Charter. (b) The Mayor and Common Council of the City of San Bernardino desire to submit to the electors the Charter Amendment set forth in this resolution. SECTION 2. Submittal to Electors. The following proposed amendment to the Charter of the City of San Bernardino is submitted to the qualified electors of the City of San Bernardino for their approval or rejection at the consolidated municipal election to be held on November 8, 1988. PROPOSED CHARTER AMENDMENT NO. It is proposed that Article IV, Section 55(d) of the Charter of the City of San Bernardino be amended to read as followS: n(d) The City Attorney shall be the chief legal officer of the City; he or she shall represent and advise the Mayor and Common Council and all City officers in all matters of law pertaining to their offices; he or she shall represent and appear for the City in all legal actions brought by or against the city, 28 7-20-88 DAB:cm 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7-20-88 DAB:cm and prosecute violations of City ordinances, and may prosecute violations of state law which are misdemeanors or infractions and for which the City Attorney is specifically granted the power of enforcement by state law without approval of the District Attorney, or those violations which are drug or vice related; he or she shall also act and appear as attorney for any City officer or employee who is a party to any legal action in his or her official capacity; he or she shall attend meetings of the City Council, draft or approve as to form and legal content all proposed ordinances and resolutions, give his or her advice or opinion in writing when requested to do so in writing by the Mayor or Common Councilor other City official upon any matter pertaining to municipal affairs; and otherwise to do and perform all services incident to his or her position and required by statute, this Charter or general law." I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 1988, by the fOllowing vote, to wit: AYES: Council Members NAYS: ABSENT: City Clerk 2 1 2 The foregoing resolution is hereby approved this day 3 of , 1988. 4 5 Evlyn Wilcox, Mayor City of San Bernardino 6 Approved as to form 7 and legal content: 8 11 L LJ/ 9 .C:iLty Attorney U 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7-20-88 3 DAB:cm