David L. McKenna

    As I told one of the candidates in the City Attorney recall election last night who thanked me for my neutrality in this race, and as I told a paid Orange County public relations consultant on Twitter, I do not pick sides on this blog because I am neutral.  After the election, I will have to work with James F. Penman, Tim Prince or Gary D. Saenz.

     

    With that I present the first Gary D. Saenz for City Attorney mailer has arrived in mailboxes.  Or at least the first one I obtained.

    The front of the mailer says “San Bernardino” at the top, along with an unbalanced scales of justice, with a stock photograph of the Federal Supplement in a law library, with a photograph of candidate Gary D. Saenz  superimposed in what is likely his office. That is based on the fact that behind Gary D. Saenz is his University of California diploma showing his first name.  Gary Sanez is dressed in a pinstripe gray suit, with a black tie.

    This is what I call a “meet the candidate” brochure.  In fact, under the picture of Gary D. Saenz is the verbiage “Meet Gary D. Saenz For City Attorney” with the tagline in italics, Taking Politics Out of the City Attorney [sic] Office.

    The second page of the flier says:

    From the Desk of Gary Saenz

    Your Next City Attorney

    I am not a politician. I have never held an elected position, nor
    do I intend to ever hold another. But I do believe strongly in the
    Office of the City Attorney and the important role it plays in
    advising your City Council on all matters of the law.
    But the Office of the City Attorney has become a political animal
    that hasn’t been good for San Bernardino. It has become a
    lightning rod of political gamesmanship, and it has divided and
    separated City Hall.
    My starting point will always be the law – it is not the role of the
    City Attorney to influence public policy. I have no tolerance for
    political infighting or political alliances. I intend to work with the
    Council and Mayor to provide the best legal advice to all of them,
    and work against none of them. My only agenda is whatever is in
    the best legal interest of the City.
    I love this city and I want my grandchildren to inherit a better
    community than we have today I can do my part by restoring
    integrity to this office and I would be honored to serve as
    your City Attorney.
    Very Truly Yours,

    [/s/ Gary D. Saenz]

    Join us on Facebook [No link given]

    On the third page is a Gary D. Saenz For City Attorney San Bernardino Logo.  Underneath is this text:

    Meet Gary D. Saenz …
    City Attorney Candidate Gary D. Saenz is truly a son of
    San Bernardino.
    The Saenz family goes back a full century in San Bernardino, when
    Gary’s grandparents took up residence on 6th Street near Mount
    Vernon Avenue in 1913. Gary’s mother and
    father were childhood sweethearts from San
    Bernardino High School, and Gary himself was
    born at Saint Bernadine’s Hospital in 1951. He
    grew up playing Little League at the corner of 14th and Mt. Vernon, and graduated from
    Eisenhower High School in 1969.
    Gary earned his Law Degree at UCLA before
    returning to his hometown to practice law. He
    has practiced law for over 35 years, serving
    his community and maintaining an unblemished
    active status with the California State Bar.
    Currently Gary focuses on real estate law from
    his office in downtown, but he finds time to
    serve on the boards of many local and
    regional nonprofit organizations. He and his
    wife Linda have been married for 24 years
    and have two college-age children.

    See my Facebook Page for more information. [No link given]

    Be sure to attend a fundraiser for Gary’s campaign, Tuesday,
    October 8, 2013 from 6:30 – 8:00pm at Mitla Café in San Bernardino.

    This page has another photograph taken in Gary D. Saenz’s office from a different angle, a black and white picture of what the reader can assume is his wife Linda and his two children as toddlers, and a dog, and what appears to be a more recent photo of Gary Saenz and his wife.  They are in black and white, but considering that 24 years ago was 1989, I would guess the originals were both in color and did not have a white border.  It is not an important point, it should be chalked up to artistic license and the idea that Gary D. Saenz has roots in the community.

    Two interesting points.  Gary D. Saenz mentions that he has “an unblemished active status with the California State Bar.”  If you recall, one of the points that City Attorney James F. Penman jumped on his challenger, David L. McKenna, in the 2011 San Bernardino Primary Municipal Election was the fact that David L. McKenna had a period of inactivity.  The “get to know” you brochures usually avoid mentioning opponents, and City Attorney James F. Penman is mentioned only on the fourth page.  However, the reader is supposed to know when Gary D. Saenz says “I am not a politician” he is referring to City Attorney James F. Penman.  When he says “the Office of the City Attorney has become a political animal that hasn’t been good for San Bernardino” he means the Office of the City Attorney under James F. Penman has become a political animal that hasn’t been good for San Bernardino.”  It was also smart to avoid mentioning the other replacement candidate, Tim Prince, because that makes it even more confusing for voters, at least in the first mail piece.

    Further, when Gary D. Saenz uses the passive voice to say “It has become a lightning rod of political gamesmanship, and his has divided and separated City Hall” the reader is supposed to understand it as Jim Penman is a lightning rod, Jim Penman is a political gamesman, and Jim Penman has divided and separated City Hall.  I do not think Gary D. Saenz is suggesting that the rank-and-file deputy city attorneys are a problem.

    On the fourth page, the address page, the Gary D. Saenz logo is repeated with a “Vote YES to Recall James Penman” logo above.

    The return address says “Paid for By: Gary D. Saenz for City Attorney, FPPC ID 1360835, 1002 N. D Street, San Bernardino CA 92410”  That is the address of Gary D. Saenz’s law office. The Presorted standard postage block says Paid ZAP COLOR, mailed from Zip Code 92878. That is the zip code for Corona, Riverside County, California.

    Overall, I think the mailing accomplishes the goals for Gary D. Saenz: educate voters in who is, his legal roots, his political philosophy, and remind them to vote yes on the recall question.  It also smartly avoids a battle with Tim Prince, who has much more political experience.  For now, Gary Saenz’s proxies are attacking Tim Prince, and he should leave that to the proxies.  If someone asked me, and no one did, I would point out that Mayor Valles appointed Gary Saenz to the Library Board. While not legally related, it shows some experience with the City, and from what I can tell, particularly compared to the current regime, Mayor Judith Valles is still politically popular, and relatively, her reign is seen as the last era of good feelings in San Bernardino.  I expect Judith Valles’ name to be used extensively by City Attorney James F. Penman’s campaign.

    I would expect to get mail very soon from City Attorney James F. Penman.  The first mail from him during the 2011 Primary Municipal Election came about October 2, 2011. 

    Other than the email from Tim Prince’s campaign, I have not

    So far nothing has been written on City Attorney James F. “Jim” Penman’s Recall Election campaign, beyond this post.  I strive to remain neutral in these elections; however, I have some observations.

    I have not seen any signs in San Bernardino.  I have not received official campaign literature.  I have not received a fundraising letter from the campaign itself.  I have been informed that there is an October 2nd 2013 fundraiser against the recall.  The flier for the fundraiser has a campaign style sign in the upper right hand corner that says “San Bernardino is Not For Sale NO Recall.

    According to the flier, the fundraiser is cosponsored by former Mayors Judith Valles, Evlyn Wilcox, and Dr. Barbara Flores. Also according to the flier, the honorary co-sponsors are Retired Superior Court Judges Paul Bryant, Stanley W. Hodge, Craig Kamansky, John Martin, and John Wade. The flier says that more honorary co-sponsors are attorneys Joe Arias, Rene Jacober, George Theios, Bradley White, and the law firm of Gresham, Savage, Nolan and Tilden.  More co-sponsors, according to the flier are Sharon Gaitan-Blechinger of the Mexico Cafe, Robert Gastel of Arrowhead Mechanical, Jack Katzman, ABO, Inc., George Kritikos, George’s Burgers, and Jeremy LeClair of The Mug Restaurant. The flier says that it is a partial list.

    In the 2011 election, I said:

    When I was a Deputy City Attorney for the City of San Bernardino, I learned a thing or two about San Bernardino politics.   One was that you shouldn’t bother spending money before Labor Day for a November election.  The second thing I learned is that with more voters using vote by mail (what used to be called absentee voting), candidates have to send direct mail earlier, and last minute hit pieces don’t work as well as they used to do.  Typically, a candidate will send a positive mailer first, particularly if they are not well-known.

    What surprises me now, if there is such a thing left as surprise in modern San Bernardino politics, is that I have not received any mail from City Attorney James F. Penman in this cycle.  The first ballots should arrive in in the second week in October.  I do not recall that there was a working James F. Penman website in the 2011 race.  There is not one now, but I would argue that electronic campaign presence is more important now than in the past.  If you look at the 2011-2012 San Bernardino City Clerk’s race, which was so close, a modern campaign must use all electronic means to contact supporters and voters.

    History shows that City Attorney James F. Penman’s  election margins and votes have gone down since 1995.  That can be attributed to a number factors, including changing of demographics, with some of City Attorney James F. Penman’s core supporters either leaving the City, leaving the area, and sometimes ceasing to exist, either by changing from a supporter to an opponent, or shall we euphemistically say, “pining for the fjords.

    What is the support for the assertion that City Attorney Jim Penman is losing support?

    Here are the results by election:

    19870307 Primary Municipal Election James Frank “Jim” Penman  No data
    Ralph H. Prince  No Data
    19910305 Primary Municipal Election James Frank “Jim” Penman  No Data
    19951107 Primary Municipal Election Jim Penman 9305 72.82 SB Clerk
    Stan Tomlinson 3472 27.17 13,893 ballots cast, 77,185 registered voters
    No Vote Recorded 1116 Not included
    19991102 Primary Municipal Election James Frank “Jim” Penman 7560 100 SBROV
    20031104 Primary Municipal Election Jim Penman 7,999 96.11 SBROV
    Write-In 324 3.89
    20071106 Primary Municipal Election James Frank “Jim” Penman 7,001 51.46 SBROV
    Marianne Milligan 6,557 48.2
    Write-In 47 0.35
    20111108 Primary Municipal Election James Frank “Jim” Penman 6,447 51.72 ROV/Clerk
    David L. McKenna 6,019 48.28
    No Vote Recorded 489 Not included 12,955 ballots cast

    What does this data mean? Though the population has increased from 1990 (164,164) to now (2012 estimate: 213,295), an increase of thirty percent, Jim Penman’s votes have fallen about 30 percent.

    These numbers should be alarming to City Attorney James F. Penman’s campaign.  The 2011 numbers should also be alarming to Jim Penman’s campaign.  The 489 undervotes, spoiled ballots, or unrecognized write-ins had a potential of changing the election.  Again, the 2011-2012 City Clerk elections shows every vote counts.

    Even more alarming are the reported number of valid recall signatures.  Though a signature is not a vote, as there are multiple barriers to voting versus signing a petition, and even though there were allegations of signature fraud, the reported number of valid signatures is 11,855, just over the required 15 percent of registered voters at the time of the circulation of the petition:

    There were 11,855 valid signatures to recall Penman, out of 77,254 registered voters, according to Hanna. That’s 15.3 percent, just over the 15 percent threshold to put a city-wide office on the ballot for a recall.  The Sun, Ryan Hagen, “Penman, two council members to be on San Bernardino recall ballot,” posted at sbsun.com .

    The Certificate of Sufficiency of Recall Petition of City Attorney is attached to Resolution 2013-259 passed 5-0-2 at the September 3, 2013 Mayor and Common Council Meeting . The Certificate states that 11,588 valid signatures to qualify, which is shown as 15 percent of 77,254 registered voters. 18,070 signatures were submitted, 18,070 were verified, of which 11,855 were found valid, and 6,215 were found invalid.

    It can and has been said that 59,184 voters did not validly sign a recall petition, and that the recall only had 267 more valid signatures over the minimum.  However, in the November 8, 2011 election, only 12,955 ballots were cast in total.  11,588 valid signatures were found by the City Clerk.  Even if Mr. Penman equals the number of votes (6,447) he received in that election, there are still 5,141 more signatures to recall Mr. Penman in 2013 than votes for Mr. Penman in 2011.

    Recalls are sufficiently rare in San Bernardino that voters may need to be educated on how to vote.  The Penman campaign must educate voters that they must vote “No” to retain James F. Penman.  That can be confusing to some voters.  However, that information is to my knowledge not available to voters.

    It has been argued that the replacement candidates are not sufficiently attractive to motive voters to the polls.  However, this is not a single-issue election, and the number of races exceeds the 2011 Primary Municipal Election. Further, there were huge negatives to the last two challengers.  The two replacement candidates are both longtime San Bernardino residents, if nothing else. It would be a mistake to underestimate the replacement candidates.

    Should City Attorney James F. Penman wish to finish the term to which he was elected in November 8, 2011, he should be concerned about the decline in votes, the number of valid petitions.  The first ballots will be in the hands of voters in a few weeks, the election will be over in about a month and half. No doubt he is sufficiently concerned, however, we have not seen that concern translate into outreach, including traditional walking precincts, campaign mail, or new media.