Monthly Archives: November 2011

    From the City of San Fernando

    Using Historical Data To Handicap The City of San Bernardino Fifth Ward City Council Election in November 2011 Between Chas Kelley and Larry Lee

    on September 21, 2011

    The conclusion was, based on the last election:

    Council Member Chas Kelley won easily in a four person field.    I would expect a similar turnout in this election.  The relationship between Council member and Mayor Morris has stayed relatively the same since the last election, so I would guess the Mayor’s supporters will vote for Pastor Lee, and Chas Kelley, as long he has not been ignoring his constituents in the last four years, should be reelected.   The demographics of the 5th Ward have changed with the collapse of the housing markets, but I doubt that will have an impact on Council member Kelley since Pastor Lee’s platform is not markedly different from what I expect Chas Kelley’s platform to be once he sends out campaign fliers or has a website or a Facebook account.

    Here are the results from the November 8, 2011 election:

    Member, City Council SAN BERNARDINO Ward 5
    18/18 100.00%
    Vote Count Percent
    CHAS A. KELLEY 1,658 64.69%
    LARRY A. LEE 905 35.31%
    Total 2,563 100.00%

    And here are the 2007 results:

    COUNCIL MEMBER – CITY OF SAN BERNARDINO WARD 5
    Vote For 1

    17 of 17 Precincts Reporting

    CANDIDATE

    VOTES

    PERCENT

    CHAS A. KELLEY 1638 59.80%
    CAROLYN A. TILLMAN 596 21.76%
    RICK AVILA 417 15.22%
    RANDY LEE 85 3.10%
    Write-In 3 0.11%

    Not including write-ins, which are not included in the 2011 results, the turnout was essentially the same; with 173 more votes in 2007 versus 2011.  Even with less voters, Chas Kelley picked-up 20 votes, and a little more than 5 percent of the votes.  Chas Kelley also improved on his 1519 votes in 2003, but not his margin of victory in 2003.  In 2003, he had 64.72 percent of the vote, compared to the mere 64.69 percent of the vote in 2011.

    In short, Chas Kelley remains popular in the 5th Ward, winning by almost two to one over Pastor Larry Lee.  Though Larry Lee did not explicitly run on a Mayor Morris ticket, the Mayor’s airport troubles probably did not help Larry Lee.  Larry Lee was probably also hurt by running a campaign that did not attack the incumbent, and did not really have a message.  At one point in the San Bernardino Sun, Larry Lee said, and I can’t find the exact quote, that he hadn’t read the City budget.

     

    Using Historical Data to Handicap the Seventh Ward Race” on October 4, 2011

    The conclusion was:

    So, with Paul Sanborn sitting this one out, and Council Member Wendy McCammack taking advantage of Mayor Patrick Morris’ legal difficulties, and Professor Jim Mulvihill not adding any new ideas or tactics from his previous races, it is safe to say that Wendy McCammack will win a fourth term as 7th Ward Council Member.

    Here are the results, again:

    Member, City Council SAN BERNARDINO Ward 7
    20/20 100.00%
    Vote Count Percent
    WENDY J. MCCAMMACK 1,361 57.26%
    JIM MULVIHILL 1,016 42.74%
    Total 2,377 100.00%

     

    As predicted, Wendy McCammack won.  She won by her second highest percentage, and her third highest vote total:

    November 2, 1999: 717 votes, 28.2 percent

    March 7, 2000: 2767 votes, 56.4 percent

    November 2002: 1310 votes, 71.47 percent

    November 2007: 1510 votes, 53.15 percent

    November 8, 2011: 1361 votes, 57.26 percent

     

    The winners don’t change, but the interesting thing is that write-ins are not tallied, unlike in previous elections.

    San Bernardino City Unif School Dist Gov Brd Mbr
    200/200 100.00%
    Vote Count Percent
    ANNA M. COX 1,825 4.05%
    WILLARD A. HUGHES 533 1.18%
    MARGARET B. HILL 6,671 14.79%
    MIKE GALLO 4,647 10.31%
    LYNDA K. SAVAGE 5,482 12.16%
    DAMON L. ALEXANDER 3,243 7.19%
    ELSA VALDEZ 3,079 6.83%
    JUAN M. LOPEZ 3,581 7.94%
    HENRY WILLIAM NICKEL 1,594 3.53%
    GIL NAVARRO 2,400 5.32%
    DAN DEANE 3,068 6.80%
    TERESA PARRA 4,218 9.35%
    SHARON ”BOBBIE” PERONG 4,751 10.54%
    Total 45,092 100.00%

     

    City Attorney SAN BERNARDINO
    148/148 100.00%
    Vote Count Percent
    DAVID L. MCKENNA 6,019 48.28%
    JAMES F. ”JIM” PENMAN 6,447 51.72%
    Total 12,466 100.00%

     

    City Clerk SAN BERNARDINO
    148/148 100.00%
    Vote Count Percent
    PEGGI HAZLETT 2,440 20.15%
    GEORGEANN ”GIGI” HANNA 2,930 24.20%
    AMELIA SANCHEZ-LOPEZ 3,465 28.62%
    WILLIAM A. VALLE 1,077 8.89%
    ESTHER JIMENEZ 2,196 18.14%
    Total 12,108 100.00%

     

    City Treasurer SAN BERNARDINO
    148/148 100.00%
    Vote Count Percent
    DAVID C. KENNEDY 10,245 100.00%
    Total 10,245 100.00%

     

    Member, City Council SAN BERNARDINO Ward 3
    24/24 100.00%
    Vote Count Percent
    TOBIN BRINKER 367 30.76%
    JOHN VALDIVIA 826 69.24%
    Total 1,193 100.00%

     

    Member, City Council SAN BERNARDINO Ward 5
    18/18 100.00%
    Vote Count Percent
    CHAS A. KELLEY 1,658 64.69%
    LARRY A. LEE 905 35.31%
    Total 2,563 100.00%

     

    Member, City Council SAN BERNARDINO Ward 6
    14/14 100.00%
    Vote Count Percent
    RIKKE VAN JOHNSON 1,075 100.00%
    Total 1,075 100.00%

     

    Member, City Council SAN BERNARDINO Ward 7
    20/20 100.00%
    Vote Count Percent
    WENDY J. MCCAMMACK 1,361 57.26%
    JIM MULVIHILL 1,016 42.74%
    Total 2,377 100.00%

    As I discussed yesterday, the City Council considered make an additional appropriation to pay for already incurred outside counsel bills.  I watched the proceedings on the City’s meeting portal today.  Below is a summary:

    City Attorney James Penman stated that there was a 60 percent increase in lawsuits over the last two years. As indicated in the staff report, City Attorney Penman said 40 of 124 cases outside counsel, 84 cases were handled in-house by Deputy City Attorneys. Five of those cases [from the agenda: Maria Mejia, Salvador Melgoza, and Guadalupe Melgoza v. City of San Bernardino, et al. – United States District Court, Case No. EDCV 11-00452 VAP; Andrea Orona v. City of San Bernardino – San Bernardino Superior Court, Case No. CIVDS 1008022; San Bernardino County Transportation Commission v. West Colony Community Association – San Bernardino Superior Court, Case No. CIVDS 1004025; Joe Taylor v. City of San Bernardino – San Bernardino Superior Court, Case No. CIVDS 1100841; and Wells Fargo Bank, National Association v. Samer Kodeih, et al – San Bernardino Superior Court, Case No. CIVDS 1109915.] were discussed in closed session involving “young” Deputy City Attorneys.  Those cases would  have cost much more if farmed out. If the bills for outside counsel are not paid, the law firms could withdraw and sue for damages.  City Attorney Penman said, most notably, that it “clear the money is there” and “the election is over it’s time to move on and do the City’s business.”

    The floor was opened to discussion.  Council member McCammack produced a spreadsheet which was not visible on my screen.  She said that she was “shocked by the numbers.”  She said that the City Manager’s budget increased by 63 percent, and nine city departments had increases in their budgets.  She reiterated an earlier discussion point that “doesn’t make sense to reduce budgets of the departments that can create revenues.”  Council member McCammack said that the City should use the City’s liability reserves, because  “if City Attorney budget not restored . . . that $3 million [in the reserves] won’t be enough.”

    City Manager McNeely said that the nature of the increase in the City Manager’s Office is moving CDBG into the office, and that the creation of the call center moved existing employees to the City Manager, and there was other reorganization.

    Mayor Morris interjected that this item (paying outside counsel) was “not an overview or recalibration of the entire City Budget.”

    Council member Tobin Brinker asked  if City Manager McNeely had a recommendation.  City Manager McNeely’s response was not entirely into the microphone but he said  that he had a concern on his part that these would be brought forward at every council meeting, and recommend, if there is a need to make a correction, do it once.  His concern is the ability to handle with the reserve fund only having closer to $2 million dollars.  City Manager McNeely said that what prompted this was a memo from the finance department that the City Attorney was going over his budget.  When pressed by Tobin Brinker, the Manager said that he was not recommending approval, but that the Council had the power to make policy.

    Council member Virginia Marquez said that if the money will come from $2 million dollar reserve, that  doesn’t leave much in reserve.  City Manager McNeely chipped in to say that  Mr. Penman also alluded to another fund with $500,000 that may be allocated, but that because of other contingencies a 1.3 million dollar reserve fund balance on June 30, 2012 was projected.  City Manager McNeely said that there was already a $760,000 deficit this fiscal year.

    Council member Jenkins said that outside counsel contracts were approved by Council,  and still within the budget caps within the contracts.  Council member Jenkins declared  “something is wrong with the system” because the previous item on the agenda was just the opposite.

    Council member Rikke Van Johnson, said this was asking for more money, and that he was not supporting the item.

    Wendy McCammack revised her figures and  removed CDBG expenditures and revenues from the City Manager’s budget, and said the Manager’s budget was still up by 17 percent,  She said that the decreases have all been in departments that can create revenues.  “3 million won’t be able to cover the judgments.”

    Council member Tobin Brinker said that Council was having the debate for over year, the real debate is whose budget it is coming out of, outside counsel will be paid.  The real debate is  which fund does it come out of, and that’s the sticking point.  He said he needs to see changes in the City Attorney’s Office, its budget grows, and that he is opposed to this agenda item.  He kicked the can down the road by saying that the City Attorney can work with his replacement (John Valdivia), and that he (Tobin Brinker) was going to oppose this effort.

    Council member Jenkins asked the City Attorney if he had any problem with using the General Government Fund.  City Attorney Penman said that the source of the money was up to the Council, but that the City has six jury trials set for June 30, 2011.

    City Attorney Penman told Council member that the book (budget figures) released by the City Manager showed that the City Attorney’s Office did cut 18 percent, including a position cut and made other cuts.  The book also showed that there were increases in other departments. The City Attorney said that his department was not alone, his was not the only department out there, he was not bluffing, and that bad things will happen.  “Attorneys will start withdrawing, and they will start suing and we will lose.”

    Council member Jenkins made a motion after some confusion about whether Council member Johnson had made a motion.  The motion was to take $140,088.93  from the General Government Professional Contractual Non-Departmental Fund with the remainder Litigation-Outside Counsel budget.

    There was a speaker.  Then the Council voted: Marquez, Brinker, Shorett Johnson No; Jenkins, Kelley, McCammack yes. Council member  McCammack set a substitute motion to deduct the amount from 2012-2013 FY City Attorney  budget.  That too was defeated by the exact same vote.  City Attorney Penman, before the vote, reiterated that the lawyers will withdraw, the City will default or lose lawsuits, and  the legacy will be bankruptcy.  The voters had heard the arguments, the voters said no, “go ahead and defy them.”

    The battle over the City Attorney’s outside counsel budget continues today.  From the staff report:

    8. Staff Reports
    A. Budget Amendment for the Office of the City Attorney to Pay Billings from Outside Legal Counsel for Services Rendered and to Pay Litigation Expenses Previously Incurred.

    Motion 1:               That $140,884.93 be transferred from the unappropriated budget reserve balance to line item # 001-050-5503 (Litigation/Outside Counsel) and that $26,771.75 be transferred from the unappropriated budget reserve balance to line item 001-050-5177, (Litigation Expenses).

    or, in the alternative,

    Motion 2:              That $622,652 be transferred from the unappropriated budget reserve balance to line item # 001-050-5503 (Litigation/Outside Counsel) and that $300,636 be transferred from the unappropriated budget reserve balance to line item # 001-050-5177 (Litigation Expenses).

     

    Synopsis of Previous Council Action:

    1.  Final 2010/2011 Budget adopted on June 30, 2010  included a $410,000 loan from City Attorney’s 2011/2012 budget.  The City Attorney’s Office had submitted a budget in the amount of $3,965.108.00, however the budget adopted for the City Attorney’s Office was $3,026,000.

    2.  On May 25, 2011 the Finance department reduced the 2011/2012 City Attorney budget by the $410,000 loan which left the revised budget at $3,026,000.

    3.  On August 1, 2011 the City Attorney’s Office requested a budget increase to pay outside counsel however the Mayor and Common Council further reduced City Attorney budget by $6000.00 in order to pay outside counsel.

    4.  On August 15, 2011 the City Attorney’s Office requested an increase of $197,000 for outside legal bills and Mayor and Common Council approved that amount to pay those bills but also further reduced the City Attorney budget by that amount.

    Background:

    The City Attorney’s Office does not create lawsuits. People sue the City for a variety of reasons.  All of these lawsuits must be defended or prosecuted by the City Attorney’s Office either with in-house counsel or outside counsel.

    The Mayor and Common Council have approved the hiring of  outside counsel in 40 of the 124 cases currently pending in the City Attorney’s Office.  84 cases are being handled by Deputy City Attorneys in-house.  The City is the defendant in 108 of these lawsuits and the City is the plaintiff in 16.   However, the appropriations to pay outside counsel and to pay litigation costs have not kept up with the 60% increase in lawsuits over the past two years.

    The City Attorney’s Office has received bills totalling $167,656.68 for outside counsel fees and litigation costs.  The Council has not appropriated sufficient funding to pay these bills all of which are bona fide and currently due and payable.  Should lawsuits be commenced against the City to recover the amounts due it is probable that a court will require us to pay all of the amounts submitted in addition to interest, attorney fees and court costs for the failure of the City to honor its contractual obligations.

    The amounts requested above in the first motion are for bills submitted for work actually completed.

    The amounts requested in the second motion above are the projected outside attorney fees and costs through the end of fiscal year 2011-2012.  (The Second motion was recommended by the City Manager who prefers that the entire matter be addressed at the same time, rather than bringing bills to the Council at each Council meeting between now and the end of the current fiscal year.)

    The City Manager informed the City Attorney on November 17, 2011 that the money to pay these bills should come from the City’s unappropriated budget reserve.

    Financial Impact

    $140,884.93 to Account # 001-050-5503, and $26,771.75 to Account # 001-050-5177. Both sums from the unappropriated budget reserve balance. Account Description: <> Balance as of: November 17, 2011= 0. Funding source: unappropriated budget reserve balance.

     

    I believe that this is the first post-election battle regarding the San Bernardino City Attorney’s Office.  Even though the Council majority will change, the new members have not been sworn in, so expect fireworks if you are watching live.

     

    Nothing new to report regarding the numbers.  As of 11:27 a.m. on November 15, 2011, the Registrar has not updated any of the totals.  I’ll post more of this non-breaking news as it becomes available.

     

    How did the local press do with their endorsed candidates?

    The Sun endorsed:

    San Bernardino City Council:

    • 3rd Ward: Tobin Brinker
    • 5th Ward: Chas Kelley
    • 7th Ward: Jim Mulvihill
    • San Bernardino City Attorney
    • David McKenna
    • San Bernardino City Clerk
    • Gigi Hanna

    Of the City of San Bernardino races the Sun’s editorial board endorsed, the Sun went 1-3-1.  The tie was Gigi Hanna, who made the run-off for San Bernardino City Clerk.

    How about our friendly neighbors to the south from the Riverside Press-Enterprise?:

    David McKenna, Tobin Brinker, Chas Kelley and Jim Mulvihill.

    How did they do?  1-3.

    Either an anonymous wag, a hyperpartisan blogger or a paid political consultant said that a Sun or Press-Enterprise Endorsement was a kiss of death, but I would characterize the endorsements as largely irrelevant.  I think the one place that the endorsement may have helped a candidate is Gigi Hanna, because though she has lived in San Bernardino for some time, she was not as well known as some of the other choices.

    What about the other periodicals? The Black Voice News: Lynda Savage, Mike Gallo, Juan Lopez and Margaret Hill for San Bernardino City Unified School District Board.  Not bad, they were 3 for 4.  How about the City of San Bernardino?  A bloodbath.  They endorsed Tobin Brinker, Larry Lee, Rikke Van Johnson, Jim Mulvihill, Esther Jiminez and David McKenna.  Of course, Rikke Van Johnson won because he was unopposed.  Otherwise, The Black Voice News’ picks all lost.

     

    Now that most of the election is over, it is time to refocus this blog on law.  So, let me start with this election campaign maxim from California Civil Code section 3357:

    Superfluity does not vitiate

    On that note, the absolute last campaign mail for the November 8, 2011 election arrived on Election Day, the ninth mailer from San Bernardino City Attorney James F. Penman.  It is an oversized postcard mailer printed in black and white.  On the front it says:

    “We all know City Attorney Jim Penman personally, we have all worked with him professionally for many years and we all endorse him for re-election as City Attorney.

    If Jim was ‘divisive, disruptive, intimidating, a bully and a liar’ (as his opponents falsely claim) NONE of us would be endorsing him.

    But, we are all proud to endorse him.

    He IS the City Attorney San Bernardino needs for the next four years!”

     

    Judith Valles                              Tom Minor                                            Evlyn Wilcox

    Mayor (1998-2006)             Mayor (1993-1998)                              Mayor (1985-1989)

    Honorable Paul Bryant                    Honorable Stanley W. Hodge                    Honorable John Wade

    Superior Court Judge (ret.)            Superior Court Judge (ret.)                       Superior Court Judge (ret.)

    Chief B. Warren Cocke (ret).                                                                                  Chief Dan Robbins (ret.)

    San Bernardino Police Dept.                                                                                 San Bernardino Police Dept.

    Chief Ben Gonzales  (ret.)                                                                                                    Chief Lee Dean (ret.)

    San Bernardino Police Dept.                                                                                             San Bernardino Police Dept.

    P.S. Jim does NOT make over $200,000 a year as his opponents claim.  He is one of the lowest paid full-time City Attorneys in the state and he voluntarily turned down his last 6 raises.

    The back of the mailer has a San Bernardino Police Officers Association return address, but also says paid for by Jim Penman for City Attorney 2011

    Responding to a David McKenna charge, the back of the mailer says: “Jim Penman was never charged, convicted or pled guilty to ANY Crime.  McKenna’s campaign is trying to deceive you.” The Honorable Craig S. Kamansky ~ Superior Court Judge (ret.)

    Under a portrait of City Attorney Jim Penman, the mailer says “City Attorney Jim Penman ‘A Tough Prosecutor.”   Next to the photograph is a quote from retired Superior Court Judge Hodge: “Penman is a tough prosecutor, not a bully.  Those who say differently may have something to hide.  Honest government officials have nothing to fear from Jim Penman but dishonest ones should.”

    To the left of the quotes from the judges is this blurb from the San Bernardino Sun:

    Penman cleared in illegal contributions probe

    The District Attorney’s Office has informed City Attorney James F. Penman that “there is no credible evidence” that he received an illegal gift of $5000.  Investigators were looking into whether Penman took the payment for Attorney’s fees related to his court challenge of language in pro-Measure C ballot arguments, and as a bribe not to sign off on supporting the proposed downtown Regal movie theater.  In a letter to Penman, Deputy District Attorney Michael Abney said “we are closing our files” on this matter. [SB Sun ~ 9-23-11]  . . . but the last minute lies keep coming.

    I never saw the mailer or the talking point, or even the newspaper article until receiving this mailer, so I don’t have any details on the allegation.

     

     

    What a night.  First, congratulations to the San Bernardino County Registrar of Voters, who did a much better job than in past elections.

    Congratulations to the winners, they did something, or a variety of things, right.  We’ll examine the lessons of this election later as the final votes are counted.  Right now, the numbers will change, but the winners will not.  These are the semi-official results, with provisional ballots and ballots requiring review (such as write-ins or over-votes).

    Winners are in bold:

    San Bernardino Council Third Ward

    The surprise is not the result, but the margin:

    Member, City Council SAN BERNARDINO Ward 3
    24/24 100.00%
    Vote Count Percent
    TOBIN BRINKER 340 30.33%
    JOHN VALDIVIA 781 69.67%
    Total 1,121 100.00%

    Then there are the no-surprises:

    Member, City Council SAN BERNARDINO Ward 6
    14/14 100.00%
    Vote Count Percent
    RIKKE VAN JOHNSON 984 100.00%
    Total 984 100.00%
    City Treasurer SAN BERNARDINO
    148/148 100.00%
    Vote Count Percent
    DAVID C. KENNEDY 9,704 100.00%
    Total 9,704 100.00%

    Using the total ballots cast (so far) for the City Attorney race, that shows 2,103 voters who voted for City Attorney but did not vote for David Kennedy.  I do not think that include ballots with write-ins, though it might.  We will see in the final results.

    Next we have the races where the result was not a surprise, but without third-party polling, probably impossible to tell the margin ahead of time:

    City Attorney SAN BERNARDINO
    148/148 100.00%
    Vote Count Percent
    DAVID L. MCKENNA 5,677 48.08%
    JAMES F. ”JIM” PENMAN 6,130 51.92%
    Total 11,807 100.00%

    A 453 vote lead for City Attorney James F. Penman.

    Member, City Council SAN BERNARDINO Ward 5
    18/18 100.00%
    Vote Count Percent
    CHAS A. KELLEY 1,602 65.17%
    LARRY A. LEE 856 34.83%
    Total 2,458 100.00%

    Council member Chas Kelley crushed Pastor Larry A. Lee, showing Council member Kelley’s popularity in the 5th Ward.

    Member, City Council SAN BERNARDINO Ward 7
    20/20 100.00%
    Vote Count Percent
    WENDY J. MCCAMMACK 1,305 57.41%
    JIM MULVIHILL 968 42.59%
    Total 2,273 100.00%

    They say that insanity is doing the same thing over and over and expecting different results.  No different results in this rematch.

    Finally, there is some unfinished business.  In the City Clerk election, there will be, as presumed, a run-off between the two top vote getters.

    City Clerk SAN BERNARDINO
    148/148 100.00%
    Vote Count Percent
    PEGGI HAZLETT 2,325 20.16%
    GEORGEANN ”GIGI” HANNA 2,813 24.39%
    AMELIA SANCHEZ-LOPEZ 3,294 28.56%
    WILLIAM A. VALLE 1,031 8.94%
    ESTHER JIMENEZ 2,071 17.96%
    Total 11,534 100.00%

    Political newcomer Gigi Hanna did admirably, making the run-off.  Amelia Sanchez Lopez (which despite the name on the ballot seems to now be the preferred spelling) rocketed to the top, leading Gigi Hanna by 481 votes.  Conventional wisdom says that the Latino vote was split; however as I have said before, I don’t know if there is actual evidence of that.  First, there will be turn-out issues, and more focus on the race.  I think Amelia Sanchez Lopez has an advantage going into the run-off because of the support that she has received from other elected officials.  Gigi Hanna has to focus on her message of being independent and the importance of being independent from the warring sides. I think Amelia Sanchez Lopez has learned tremendously about this process, and will be in good shape in the run-off.

    On to the San Bernardino City Unified School District Board Election

    San Bernardino City Unif School Dist Gov Brd Mbr
    200/200 100.00%
    Vote Count Percent
    ANNA M. COX 1,741 4.03%
    WILLARD A. HUGHES 508 1.17%
    MARGARET B. HILL 6,383 14.76%
    MIKE GALLO 4,459 10.31%
    LYNDA K. SAVAGE 5,316 12.29%
    DAMON L. ALEXANDER 3,121 7.22%
    ELSA VALDEZ 2,929 6.77%
    JUAN M. LOPEZ 3,398 7.86%
    HENRY WILLIAM NICKEL 1,531 3.54%
    GIL NAVARRO 2,267 5.24%
    DAN DEANE 2,972 6.87%
    TERESA PARRA 4,032 9.32%
    SHARON ”BOBBIE” PERONG 4,597 10.63%
    Total 43,254 100.00%

    I’ll be talking about this race some more later, but two incumbents were dumped, with one retained, and three newcomers: former administrator Margaret Hill, executive Mike Gallo, incumbent Lynda Savage, and former teacher Sharon “Bobbie” Perong winning.  Incumbent Teresa Parra Craig came in fifth, just out of the money.