Joe Suarez

    According to the Sun today, the Valente Duran Letter is again a campaign topic. I was asked on Facebook if I had a copy of the letter.

    When I was a Deputy City Attorney for the City of San Bernardino, I had to review every mobilehome notice of violation before they were issued. Long-time readers of this blog will remember that I was hired about a month after the City’s closure of the Cypress Inn Mobilehome Park and the Valente Duran letter.

    What does the Valente Duran letter actually say?  For some reason it is not available on anywhere on the web that is searchable by Google, at least the “original letter.”  There were two letters, one in English and one in Spanish.

    However, the English version is available on Laserfiche, the City of San Bernardino’s online records system. It was part of a handout to the Mayor and Common Council entered into the City’s record on April 15, 2002 by Gil Navarro, at public comments, and received by then-City Clerk Rachel Clark.

    The letter is undated, but refers to attachments dated March 18, 2002. The letter is addressed to Paul Smith, Chief of the Intake Division of the United States Department of HUD, California State Office.  The letter says (the all caps are in the original):


    The first thing attached to MAPA’s letter to HUD is the Valente Duran Letter.  This is the English Duran letter:

    If you don’t like to click through to other documents, here is a transcription of what the Valente Duran letter says:

    [Seal of the City of San Bernardino]


    James F. Penman

    City Attorney

    Mr. Valente Duran

    c/o EZ-8 Motel, Room 237-238
    1750 S. Waterman
    San Bernardino, California  92408

    Re: Cypress Inn Trailer Park

    Dear Mr. Duran:

    I read in the paper yesterday a statement attributed to you, “In Mexico, they treat us better
    than here.”
    The City of San Bernardino, out of concern for the safety of you and your family, evacuated
    you and your family on Thursday, December 14, 2000 from Cypress inn Trailer Park to the EZ-8 Motel.
    Our Fire Department Inspectors believe you and your family were living in a situation that                                  could result in serious injury or even death, due to the condition of the park and your mobile home.

           The people of the City of San Bernardino are presently paying for two rooms at the motel for
    you and your family and are reimbursing the Salvation Army for providing you and your family with  daily meals.

            We intend to continue providing you this assistance for the remainder of the two week period that you were informed of when the evacuation first occurred.

            In addition, as you have also previously been advised, the people of the City of San Bernardino through the City’s Economic Development Agency, is prepared to assist you and your family in obtaining more permanent housing by paying your first month’s rent and a security deposit at a residence that meets fire and building code standards.

             I do not know if the comment attributed to you in the newspaper is correct or not. If it is correct, I understand and respect your feelings for what I assume is your native country.

    300 NORTH “D” STREET •SAN BERNARDINO. CA 92418-0001 • (909) 384-5355 • Fax (909) 384-5238
    [End Page 1]
    [Beginning Page 2]
    Mr. Valente Duran
    Re: Cypress Inn Trailer Park                                                                                                        Page 2

    However, I want you to know that the comment attributed to you in Tuesday’s paper was
    perceived as a criticism by you of the effort and funds that the people of the City of San Bernardino                        are providing for you and and your family.  We do not believe the criticism of our efforts is justified.

            The people of this City have no desire to deprive you or your family of what you may believe                   would be better treatment by the government of Mexico.  Therefore, in substitution for the housing,                      food, and other assistance the City of San Bernardino is voluntarily providing, we want to give you                         the option of continuing to receive this assistance or accepting our offer to arrange and pay for transportation for you and your family, one way, to Mexico.

               This alternative offer is conditioned upon your signing a release for the City of San

                If you choose not to accept this alternative offer the people of the City of San Bernardino will                      continue to assist you in the manner and for the time previously indicated.



                                                                                     JAMES F. PENMAN                                                                                     City Attorney


    cc:         Mayor Judith Valles

    City Councilmembers


    JFP/js [DURAN.LTR]


    [End Valente Duran Letter]

    As I stated, I was not at the City of San Bernardino at the time the letter was created and delivered.  I was still the Staff Attorney at Legal Aid Society of San Bernardino, Inc..

    A little context for the letter.  In 2000, there was a battle between the City Attorney, his Council allies and the forces of then-Mayor Judith Valles regarding Measure M, which was to pass a new charter for the City of San Bernardino.  Among the things that Measure M was going to do is make the City Attorney elected versus appointed.  Measure M was defeated by the voters. Measure M was drafted by a charter commission appointed by the Mayor and Common Council, and it was chaired by Jim Morris, the son of then-Judge Patrick Morris, and future chief of staff to now-Mayor Patrick J. Morris.

    The aftermath of the Valente Duran apparently lives on today. The reactions were immediate as well.

    According to an article by Stephen Wall in the Sun that is included in the backup for the January 8, 2001 Mayor and Common Council Meeting, the quote from Valente Duran appeared in the Sun on December 19, 2000.  That would mean the quote was probably on December 18, 2000.

    San Bernardino Mayor and Common Council Resolution Number 2001-007 was passed by the Mayor and Common Council by a vote of 5-2 on January 8, 2001.  The title of Resolution Number 2001-007 is “A Resolution of the Mayor and Common Council of the City of San Bernardino to Censure the City Attorney for Unauthorized and Insensitive Conduct.” The votes for the Resolution were Esther Estrada, Susan Lien, Gordon McGinnis, Frank Schnetz, and Joe Suarez. Voting against the Resolution were Betty Dean Anderson and Wendy McCammack.  It was also signed by Mayor Judith Valles.  The “approved as to form and content” is unsigned.

    A slightly different version of the Duran Letter is attached to Resolution 2001-007 as Exhibit “A.”  This version of the Valente Duran Letter is time and date stamped by “Common Council Office City of San Bernardino” on “00 Dec 20 P.M. 5:21”

    At the same time, the Council repealed a 1984 ordinance regarding the need for City Attorney approval prior to hiring outside attorneys.  That issue was later resolved, I believe, with a Charter amendment, but had been a long-simmering issue between the Mayor and Common Council and the City Attorney’s Office, which dated back to Holcomb and Ralph Prince fights.

    Here are the minutes of that discussion:

    SPECIAL COUNSEL SERVICES. (Discussed later in the
    meeting – page 25)  . . .

    Council Member Estrada stated that she would like to discuss an item that arose subsequent to the posting
    of the agenda, which was related to a comment made in the newspaper by representatives of
    the Mexican American Political Association (MAPA) that they were going
    to request that the United States Department of Justice investigate what they believe to
    be a violation of civil rights of residents of the Cypress Inn Mobile Home Park. City Attorney
    Penman advised that the law requires that two- thirds of the Council vote that
    the matter arose after the agenda was posted; and in fact, the matter arose on December
    20, when the letter (a letter from City Attorney Penman to Mr. Duran, a resident
    of the Cypress Inn Mobile Home Park) was delivered to the Mayor’s Office and
    the Council Office. He noted that there was a newspaper article on Thursday morning,
    and members of the Council and the Mayor were contacted on Wednesday, long
    before the agenda was posted; therefore, in order to cast a vote that the need to take action rose after the agenda was posted, the event would need to have taken place since Friday morning.

    Council Member Estrada pointed out that it was only on the 5th of January
    Friday) that the threat of litigation was made public by MAPA.
    Council Member Estrada made a motion, seconded by Council Member Lien,
    that the matter arose subsequent to the posting of the agenda.
    The motion carried by the following vote: Ayes: Council Members Estrada,
    Lien, McGinnis, Schnetz, Suarez. Nays: Council Members Anderson, McCarnmack.
    Absent: None.

    Council Member Estrada stated that earlier, before going into closed session,
    she had asked the Mayor and Council if they could address the issue in the newspaper
    regarding the controversy over a letter that was directed to a gentleman by the name of
    Mr. Duran. She stated that the reason she wanted to go into closed session was to be
    able to discuss privately the potential liability surrounding this issue. However, she had
    a concern as to whether the Council could receive an unbiased opinion or advice, since
    the person the Council would ask for advice is the very same person that is involved in
    this public controversy. She also stated that she did not think it would be fair to put a
    burden on the employees of the City Attorney’s Office by placing them in a
    situation where they could be asked to produce information that the Council might need on
    this matter. Ms. Estrada advised that this is very clearly the type of situation, in
    her opinion, where the City Attorney comes into conflict–the Conunon Council
    needs legal advice on a matter in which the City Attorney
    is involved. Council Member Estrada continued by explaining her concerns
    relative to Chapter 2.20 of the San Bernardino Municipal Code, which states that
    the City Attorney must approve any outside counsel that the Mayor and Council would
    desire to hire. She pointed out that the original City Charter clearly gave the Mayor
    and Council authority to hire outside counsel, when needed. However, 15 to 16 years
    ago the Municipal Code was changed, and Chapter 2.20 was approved. She stated that
    it was her opinion that this chapter of the code needs to
    be addressed. At this time, Ms. Estrada presented a draft ordinance she
    had prepared rescinding Municipal Code Chapter 2.20 and asked City Clerk Clark for her
    help in finalizing it for Council approval. She stated that it was her understanding that
    in order for the Council to take this action on an ordinance, that there has to be
    something equal or higher replacing it, and it was also her understanding that what was contained
    in the charter already gives that authority to the Mayor and Council. She also
    understood that there must be 5 to 7 days before the second reading; therefore, if
    the ordinance received first reading today, this meeting could be continued to the
    following Monday,and the Council could act on the second reading at
    that time.

    Discussion ensued regarding the wording of the ordinance, the use of the word
    rescinded” versus “repealed,” and the fact that it must be approved as to form and
    legal content by the City Attorney’s Office.

    City Attorney Penman advised that should the City be sued over the letter
    he sent to Mr. Duran, the City Attorney’s Office would automatically recuse
    itself. He stated that it was the opinion of prior City Attorney Prince that the only
    thing Chapter 2.20 does is to codify what state law and case law is. He also advised that last
    year an independent evaluation of Section 2.20 was done by Attorney Allen Gresham,
    who also stated that Section 2.20 is merely a codification of the
    current law. Mr. Penman stated that insofar as that section of the City
    Charter which authorizes the Mayor and Council to retain legal counsel as needed–
    as Mr. Gresham’s opinion says, the words “as needed” have been interpreted by
    the courts to mean exactly what is written in Section2.20 of the Municipal
    Code. Mr. Penman contended that repealing Section2.20 would not give the Council authority
    to hire outside counsel.Mr. Penman stated that even though Council
    Member Estrada opposed Measure M, she came out at the same time wanting language put in
    the proposed charter that would do just what she was now proposing. He stated that Ms.
    Estrada has had a problem for years with the decision of the taxpayers to elect the
    City Attorney and to prevent the Mayor and Council from hiring attorneys of
    their own without the permission of the City Attorney. He stated that, in his opinion,
    Measure M was a strong reaffirmation of this policy, and by adopting the
    proposed ordinance the Council was setting the stage, first, for litigation; and secondly, for
    some more onerous civil action.

    Council Member McCammack expressed concern that repealing this section of the Municipal Code would provide an opportunity for
    future Councils to take advantage, possibly leaving the City open to litigation and costing
    the City hundreds of thousands of dollars. She questioned why, if the state bar and
    state law already require that if there is a lawsuit naming Mr. Pemnan, that he
    would automatically have to remove himself, the Council would need to repeal an ordinance that in
    the long run is going to endupcostingthe taxpayers hundreds of thousands of
    dollars. She stated that the issue is that of leaving the
    City open for litigation. Council Member Anderson questioned whether the
    action taken by City Attorney Penman was within his scope of duties as an elected
    official and whether he had violated any protocol, stating that she would hate to see
    the Council changing the Municipal Code every time something comes up
    they don’t agree with.
    Council Member Estrada reiterated that this action had nothing to do with what
    Mr. Penman had or had not done; it had to do with what she sees as a conflict, in that
    the person that would be giving the Council advice in this matter is the same person
    involved in the controversy. She stated that given these facts, it brings everything back
    to this ordinance which, according to Mr. Penman, is meaningless because the state
    statute prevails; and if that is the case, then no one should be opposed to going back to
    the original Charter.
    Mayor Valles pointed out that this has been a topic of discussion and a concern
    for much longer than this recent incident–that it was not something that just came
    up. She added that the timing is such that this may be the time to do it, and she
    believed this was the point Council Member Estrada was trying to
    make. City Attorney Penman expressed his opinion that this action was aimed at
    him personally, stating that it was incredible that a groupof elected officials would take
    an action so strongly against the will of the majority of the people in the city. He
    stated that in his opinion the Council was claiming falsely that the matter arose subsequent
    to the posting of the agenda, thereby denying the public the opportunity to attend one
    of the hearings relative to this ordinance.

    He also reminded the Council that the Charter provides that the City
    Attorney’s office shall prepare all ordinances and resolutions. He noted that if the
    Council did otherwise, the ordinance would be subject to being stricken by the court in a
    writ of mandate proceeding, and he strongly believed a citizen’s group would
    move to bring such an action.

    Council Member Estrada made a motion, seconded by Council Member Lien,that the Mayor and Conunon Council direct the City Attorney’ s Office to prepare an ordinance repealing Chapter 2.20 of the San Bernardino Municipal Code and that said ordinance be brought back to the afternoon session of the
    Council meeting for Council consideration.

    The motion carried by the following vote:
    Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez. Nays:
    Council Members

    During the announcements in the meeting, the minutes say “Mayor Valles also noted that she would be writing a letter to the Duran family.”

    During the same announcements, the minutes summarize City Attorney Penman’s comments as thanking “the large number of people (127) who called his office offering support and expressing agreement with his letter to Mr. Duran. He stated
    that 125 callers voiced support, while 2 of the callers were opposed to the letter.”

    After the repeal of section 2.20 was put on the agenda, this was the discussion at the January 8, 2001 meeting according to the minutes:

    Council Member Estrada reiterated that she had asked the Mayor and Council
    to allow her to bring an item forward that, in her opinion, arose after the posting of
    the agenda for today’ s meeting. She stated that it was also her opinion that the
    matter arose as the result of an article in the newspaper on Friday, January 5,which stated
    that the Mexican American Political Association ( MAPA) was going to be requesting
    that the United States Department of Justice investigate San Bernardino, and the City
    might find itself in litigation. It was her opinion that since City Attorney Penman is the
    person the Council should go to for legal advice, yet he is also the person involved
    in this controversy, that a conflict existed. She noted that for the past 15 or 16
    years the Municipal Code has contained Chapter 2.20, which basically gives authority to
    the City Attorney relative to approving any request by the Mayor and Council to
    seek outside legal advice, which now places the Council in a situation where there is
    a conflict.

    City Attorney Penman stated that it was his opinion that last summer the Mayor
    and Council wanted to have authority to hire their own attorney, and they brought
    forward to the voters Measure M which, among other things, contained language that
    was suggested by Council Member Estrada, who has long objected to the fact that the
    Council cannot hire their own attorney. He stated that the idea was to make the City
    Attorney appointed by the Mayor and Council so they could hire their own attorneys
    and, in his opinion, get confidential or secret advice. Subsequently, Measure M went
    to the voters and was defeated.

    Mr. Penman advised that when the firm of Gresham, Savage, Nolan & Tilden was
    retained to provide an analysis of Measure M, they also provided an analysis of Charter
    Section 241 which states, “The Mayor and Common Council shall have power and
    authority to employ and engage such legal counsel and services and other assistants,
    as may be necessary and proper for the interest and benefit of the City and the
    inhabitants thereof.” Attorney Allen Gresham stated in his analysis, ” As a public officer, the
    City Attorney is, by law, expected to properly and timely provide the services required
    of the office. Indeed it would be tantamount to a waste of taxpayers funds if ”
    outside” counsel were hired to perform duties which the City Attorney was expected to
    discharge. ” Mr. Penman proceeded to read into the record a column from the editorial page of the San
    Bernardino Sun on November 9, 1987, dealing specifically with this issue. According to Mr.
    Penman, the Council, having failed to do away with the elected City Attorney
    by a Charter amendment, are now trying to sneak it in the back door by bringing
    an item forth that was not placed on the agenda, claiming that the need arose after
    the posting of the agenda. He stated that the letter to Mr. Duran is a ruse being used
    by the Council to get back at the voters, but he sees through the subterfuge.

    Mayor Valles stated that as she has researched what the City has spent in legal fees, she noted
    that the City has hired many, many, many outside attorneys, and some of them have
    cost a bundle, based on some decisions that were, perhaps, not made in the best interest
    of the City. She stated she resented the comment that the only reason this is being
    done is because Measure M failed–that one has nothing to do with the other.

    Council Member Estrada pointed out that she has always supported an elected City Attorney,
    and in fact has always seen Mr. Penman as an ally. She stated that if this ordinance
    is so meaningless, why is it that Mr. Penman is being so defensive and why is
    he willing, as he indicated to her, to expend all his money and efforts to beating this. She
    also stated that this has nothing to do with Measure M–it is about going back to
    what the City Forefathers and those who created the Charter planned–something that
    is in the Charter now.

    Ms. Estrada stated that she wanted those people who support Mr. Penman, as
    she has supported Mr. Penman over the years, to know that this is not personally
    against Mr. Penman–it has to do with the conflict of interest that it presents to
    the office of the City Attorney regardless of who sits in that office. She pointed out that
    it is Mr. Penman who continues to keep Measure M alive, and also noted that we are
    a charter city, not a general law city, and some of the rules that apply to general
    law cities do not apply to us.

    Council Member McCammack spoke in opposition to the proposed
    ordinance, stating that she could not support this item because she must be a more
    responsible elected official with the taxpayers money than what repealing this ordinance
    would allow; and for this reason–fiscal responsibility– she would not
    support this ordinance. She also expressed her opinion that there were underlying reasons
    for this action.

    Discussion on this matter continued at length. It was pointed
    out that no individual Council member could go out and hire an attorney and then bill
    the City for these services–that anytime outside counsel would be retained, it
    would have to be approved by the Council.

    Mayor Valles, putting the matter in historical perspective, noted that Attorney’sopinions appeared on the scene in approximately 1987, yet the charter was approved in 1905. Therefore, up until the 1980s the Mayor and Council had the right to hire outside legal counsel, and she did not believe there was ever
    any record of it being abused. Therefore, she requested that the discussion move “off
    of Measure M and off of making this a personal issue.” She stated that what
    Council Member Estrada wanted to do is rescind or repeal Municipal Code Section 2.20 and go
    back to the original Charter.

    The Mayor reiterated that from 1905 to 1987 this edict of the charter was never abused; however, the City has hired a great deal of outside counsel since the mid ’80s and it has cost the City a bundle. In addition, for any
    additional legal expenditures to be made it has to come before this Mayor and Council and must be voted
    on by all of the Council members, who are here to represent their constituents, while the responsibility of the Mayor is to be the real fiscal watchdog of the City. She noted that Council Member Estrada had given this a great deal of thought, it did not happen overnight, she was talking about this long before Measure M,
    and for people to associate one with the other is a false association.

    Council Member McGinnis stated that when he first became a Council member he asked if the Council could get a second opinion and was told “no.” He stated that he believed there were some issues where he could see no harm in obtaining a second opinion; however, he did not think these opinions should be
    separate from Mr.Penman–he should be included in the process.
    Council Member Schnetz reiterated that it would take a majority vote of the
    Council to hire outside counsel, and if it is less than five votes it can be vetoed by the
    Mayor. He advised that he does not see anything in the charter, which the people
    recently reaffirmed they were overwhelmingly in favor of, that anybody in particular
    has a specific watchdog role-that the closest thing he could see that talks about
    the concept of a watchdog” and whose duty that is, is reference to the Mayor of the
    City, as having the oversight or management of the City, making sure the books are
    kept, making sure all contracts of the City are fulfilled and to bring legal action if
    those contracts are not fulfilled.

    Mr. Schnetz stated that he takes it a little personal that in the City
    Attorney’s comments he portrayed the Council as being something less than honorable and
    that this less than honorable body would defeat or restrict the people’s lawyer.
    He stated that the last time he checked, this body was the people’s body–
    the Mayor was elected by the people, and when he was elected he received nearly 66% of
    the vote of his ward, Council Member Estrada 72 % of her ward, and Council Member Lien over
    70 % o f her ward– that this body is the people’s body. Mr. Schnetz
    noted that there have been numerous Council Members and three or four Mayors, and for
    some reason they all get sideways with the City Attorney. He stated that he did
    not understand it–whether it is the process that the City Attorney uses, or if it is
    the personal attributes of the City Attorney–but he does feel that this particular
    ordinance is something that is not needed, and the rescinding of Chapter 2.20 would be in the
    best interest of the people, and this body was elected by the people.

    Council Member Estrada explained that over the course of all these years, many times Council Members have gone as members of the Council (not for personal counsel) to Mr. Penman and brought up different issues,
    and he has said,I “do not represent you, I represent the people” –and
    this has never been clearly clarified. She noted that the Council members represent the people,
    too. They take an oath and state that they will do the best for the City of San
    Bernardino; not just their own ward. She pointed out that this has been a major problem,
    for if Mr. Penman doesn’t represent the Council, who does?

    Ms. Estrada stated that as the legislative body of this City, the Council is charged with the responsibility of
    creating policy. She pointed out that what Chapter 2.20does, is if the Council seeks another
    opinion because they want to create a policy or whatever, and the City Attorney does
    not agree and does not consent to allowing them the opinion of an outside attorney,
    the Council is strung out and cannot move forward, because they have not received the consent
    to do it.Bottom line,they are the legislative body that is supposed to create the policy
    and the laws for the city, but final decision on whether they can do it or not does
    not rest with them, but with the City Attorney’s office, and she finds that
    a conflict. In her opinion, if the Council members are the policy makers, and they are elected by
    the people they should be able to have the freedom, as the City Fathers saw fit, to follow the
    policy contained in the Charter that gives them this authority.

    City Attorney Penman stated he has never been asked for a second opinion when
    the Mayor and Council’s opinion agreed with the City Attorney’ s opinion.
    The only time they ask for a second opinion is when they disagree, and then what
    they are looking for is not a second opinion, they are looking for a different
    opinion. He reiterated that if a lawsuit is filed against the City because of the letter he wrote
    to Mr.Duran, the City Attorney’s Office would conflict off on that lawsuit as
    they have done in the past, and another attorney would be hired by the Mayor and
    Council. He stated it is a rehash of the issues involved in Measure M, and it looks like the
    issue will be brought back to the people again, because the Council knows their
    ordinance will be subject to a referendum and they will get the opportunity to place it on
    the ballot. He admonished the Council, stating that they were going to cost the City
    more money, for another election, and the public is not going to
    change their minds.

    Lee McConahy, 261 S. Arrowhead , San Bernardino, CA, stated that Charter Section 55 states that the City Attorney shall be the chief legal officer  of the city who shall represent or advise the Mayor and Common Council and City Officers in all manner of law pertaining to the offices. He noted that the key word is “advise.” He stated that he believed the Mayor and Council need to take the advice of the City Attorney, but they also need to be able to seek other opinions. City Clerk Clark provided a full reading of the ordinance into
    the record. Council Member Estrada made a motion, seconded by Council
    Member Lien,that said ordinance be laid over for final adoption.The motion carried by the following vote: Ayes: Council Members Estrada,Lien, McGinnis, Schnetz, Suarez. Nays: Council Members
    Anderson and McCammack.

    Then, the meeting turned to the vote to censure the City Attorney for the Valente Duran letter.  The minutes say:

    Council Member Lien stated she would like the Council to consider an
    item that came up after the posting of the agenda–a resolution to censure the
    City Attorney. She stated that she did not take pleasure in this action; however, the
    letter Mr. Penman wrote to Mr. Duran left her no choice.
    Council Member Lien provided background information, stating that Mr. Duran
    and his family and neighbors were turned out of their homes when the City was forced
    to act, and at that time the City and the conununity reached out to do everything they
    could for these families. Nonetheless, under these very stressful circumstances, Mr.
    Duran lashed out, saying that, “In Mexico they treat us better than here.” Ms. Lien pointed
    out that this kind of statement could have been said by anyone in similar circumstances;
    in fact, the Council hears charges against them at meetings all the time.

    Council Member Lien pointed out how fearful Mr. Duran must have been when he
    received this letter that represented the mighty power of the City. She noted that Mr.
    Duran and his family were here legally–four of his children were born here–
    and many of the Latino community were incensed by the letter, which offered a man
    and his family a one-way ticket to leave the country.

    Ms. Lien stated that this was a throw- back to an all too prevalent attitude that unfortunately still lingers, and there is a lot of history that fuels this type of anger in minorities when these things surface. She questioned what could be more offensive than a public official offering a man and his family a one-way
    ticket to leave the country. She noted that the good people of San Bernardino are fighting
    hard to put this city back on its feet, and the Cypress Inn (where Mr. Duran and his
    family lived) is just one example of the physical blights plaguing our city; however,
    far worse than the blight is the image that the City Attorney now
    casts on our city.

    Council Member Lien stated that the City would not easily
    rid itself of this public disgrace, and if the executive and legislative powers of the
    City didn’t take swift and responsible action, they would become complacent
    accomplices to an act of intolerance. She stated she was outraged, livid,
    furious, and heartbroken for Mr. Duran and his family, but most of all she was heartbroken
    and ashamed for the city. She stated that the Council must act today and should
    not leave the Council Chambers before attempting to do so.

    Council Member Lien made a motion, seconded by Council Member Suarez, that the matter arose subsequent to the posting of the agenda.

    The motion carried by the following vote: Ayes: Council Members Estrada, Lien, McGinnis, Schnetz, Suarez.
    Nays: Council Members Anderson, McCammack. Absent: None.

    Council Member Lien provided a full reading of the resolution for the record.

    Council Member Estrada stated that given on the prior issue she attempted to separate the two matters of the letter to Mr. Duran and Section 2.20 of the Municipal Code, she had not had an opportunity to make public
    statements relative to Mr. Duran’s letter, but she felt she needed to let the people of San Bernardino know why. She explained that over the last three weeks she has been on vacation–a couple of days
    one week and three days the next–and she had no idea this situation was developing until she read the papers and got caught with what had happened over the course of the last three to four weeks, going back to
    December 20.

    Ms.Estrada advised that right before Christmas and right before New Years she had come in and gone through her mail; however, there was not a copy of Mr.Penman’ s letter in her correspondence. Council Member Estrada
    stated that she considered Mr. Penman a very smart individual, but what she did
    not understand is why the letter was ever written. She stated that Mr. Penman, due
    to his legal experience, understands better than any one of the Council members, that everyone residing in this country is guaranteed freedom of speech. She acknowledged that as elected officials they may not like what some people have to say, but this country does guarantee everyone the right
    to free speech.

    Council Member Estrada continued her comments, pointing out
    that as elected officials, they do not have the privilege that the general public
    has–when they speak their words they must be very careful, because they have to make sure
    that at the same time they are protecting the taxpayers of the city and that they
    are not committing the City to face liability that they are not entitled to
    commit the City for.

    Council Member Estrada stated that she, too, was elected
    to represent all the people–not just those she agrees with or that agree with
    her. What this issue has brought to light is that we need to develop guidelines on what
    we can and can’t say publicly. She stated that no resident, legal or otherwise,
    should be treated the way this family had been treated, and she pledged to work to
    make sure that this does not happen again. She asked the community to give the
    City a chance to correct this problem, because we must work together to correct it.

    She also addressed Mr. Penman, stating that she knew in his heart he did not want to do anything that would harm the city, and to please be very careful of what he says and does from this point forward, as
    everyone must be. She addressed her colleagues, stating that they were elected to exercise
    leadership, and they must do what is right for the people of San Bernardino– and that
    includes all ofthe people of San Bernardino.

    Council Member Estrada asked for clarification on the censure, stating that she would like to make sure that
    everybody, including herself, understood in what context it is being used.

    Mayor Valles stated that she thought the language in the censure was very clear; it states a series of principles of the City, and certainly of our country, and the fact that the comments, or the infamous letter, are being
    perceived by many in the community as  divisive, and that she and the Council members, as elected officials, as leaders of this community, must make every effort possible to combat continuing prejudices, bias, and
    discrimination to overcome hostility toward immigrants and heal the wounds of racism,
    bigotry, and other forms of discrimination. She stated she was sure that Mr. Penman
    did not intend his comments to be racist; however, that is how they were being viewed,
    and it is incumbent upon City officials, as the leaders in this community, to make sure
    that it does not take a foothold in this community and that it does not divide us any
    further. She stated that she believed that this was the intent of the censure.

    Mayor Valles stated that she also understood that a resolution must be drafted by
    the City Attorney according to the Charter; however, as she read the Charter it says
    that, “he or she ( City Attorney) shall attend meetings of the City Council, draft
    proposed ordinances and resolutions”; however, it does not indicate exclusivity to the
    writing of a resolution to the City Attorney. She noted that this resolution, obviously,
    could not have been written by the City Attorney.
    City Attorney Penman stated that it has been a mark of pride for him in his 13 1/2
    years as City Attorney to be condemned by a previous City Council, a previous Mayor,
    and a City Administrator. He maintained that the right thing was done in writing the
    letter–that if the same situation should arise next week, he would write another
    letter. He stated that the proposed resolution was filled with inaccurate and untrue

    Mr. Penman stated that he thought it was very unfortunate that the Council
    had just claimed a few minutes ago that the ordinance to repeal Section 2.20 of
    the Municipal Code was not personal, yet it was brought up orally by Council
    Member Estrada, and then afterwards the so-called censure. He stated that the Council
    had no authority to initiate a censure; however, that did not bother the Council, as
    it was already written, printed, and copied.

    Mr. Penman restated his opinion that this was a personal attack–
    that Measure M was a personal attack and this was a continuation of Measure M.
    He ascertained that the letter was not racist– that it was anything but that. and that
    anyone who knows him,knows better than that–and this Council is not qualified to
    make a determination as to whether Jim Penman has done something racially
    inappropriate or not. He challenged them to cast their votes, stating that he would proudly use
    that vote everywhere he goes to say, as he introduces himself, “This is Jim Penman, the man
    who was called a racist by MAPA and the man whom one mayor and
    five council members, obviously in MAPA’s pocket, agreed with MAPA and passed a
    resolution that they had no authority to pass, on an issue that if they were serving the
    public, they would have taken the same stand as the
    Office of the City Attorney. ”

    Council Member Anderson stated that she was not a person who promotes dissention or divisiveness– that she has tried not to do that–and that she was really very hurt that this was the
    point to which the Council had come.

    Council Member Lien made a motion, seconded by Council Member Suarez,
    that said resolution be adopted. ( Note: The vote was taken following additional
    discussion and comments.)
    Council Member McCammack stated that there were inaccuracies in the
    resolution that could come back to haunt the Council in court at another time.
    Mayor Valles asked Mrs. McCammack to point out the inaccuracies.
    Council Member Anderson stated that the Council did not need to be on such a
    fast track to do things that are going to divide this community–that it was going to
    be hard to knit back together. She noted that San Bernardino is on the cusp of
    being developed by a very good development agency, we are on the cusp of doing some
    great things and getting out of this “hole” that we have been in for the last 10-20
    years, and now we’re sitting up here as elected officials going at each other throats.
    She stated she did not like being a part of anything like this; that everyone should back off
    and have a reality check with each other and stop being so divisive and petty. She
    stated that they were all professionals and it was time for them to start acting that way
    and stop doing this to each other. According to Mrs. Anderson. this
    resolution–with one elected official censuring another elected official–was wrong, and
    a reality check was needed.

    Council Member McCammack stated that she believed that the Mayor should at least talk to someone in the City Attorney’s Office to make sure that there was nothing in the resolution that would cause future litigation with suits going on in this City. She again stated that there were inaccuracies, one of
    them being that Code Enforcement did not cause this.

    The Mayor stated that this could be corrected right now. She thought it started with the Fire Marshall, but eventually everyone got into it, including Code Enforcement. Council Member McCamrnack stated that
    the Council should also find out whether Mr. Penman’ s Office was or was not
    authorized to make that offer, since he had been authorized
    to make similar offers to other individuals.

    Mayor Valles stated that she did not believe thatMr. Penman had been authorized to give people passage out of
    this country or even out of California.

    City Attorney Penman advised that the offer made in the letter was within his purview, under those circumstances, based on past Council actions and based on expenditures that he can make out of his own budget. He indicated that this part of the resolution was also inaccurate.
    The following individuals spoke in support of the resolution to censure City
    Attorney Pemnan:
    Attorney Timothy Prince, 290 North “D” Street, San Bernardino, CA.
    Shirley Goodwin, 3715 Camellia Drive, San Bernardino, CA.
    Gail Fry, 7066 Andes Trail, Apple Valley, CA, whose comments centered
    around what she termed “code enforcement raids” and the right of everyone to feel safe
    and secure in their homes.
    Attorney Eloise Gomez Reyes, 290 North “D” Street, Ste. 805, San
    Bernardino, CA, who pointed out that the First Amendment does allow both Mr.
    Duran, in his criticism, and Mr. Penman, as a citizen, the right of free speech;
    however, Mr. Penman’s comments were made not as a private citizen but as
    a representative of the City of San Bernardino.

    Jay Lindberg, 6340 Orange Knoll, San Bernardino,
    CA. Note: City Attorney Penman took exception to several comments made by
    the above speakers.)

    The following individuals spoke in opposition to the resolution to
    censure City Attorney Penman:

    Pam Zander, 597 East 29th Street, SanBernardino,

    James Roe, 325 West Sixth Street, San Bernardino,

    Gary Kirby, 1505 Yardley Street, San Bernardino, CA, who stated that
    he clearly sees this as an attack on Mr. Penman because of his opposition to Measure
    M and a desire to promote victimhood by certain organizations who make their living
    by creating victims and attacking people because of a victimhood

    Dan Walker, Conejo Street, San Bernardino, CA.

    Mayor Valles suggested that before proceeding further, due to the
    conunents made by Council Member McCarnmack and City Attorney Penman, a change should
    be made in the seventh paragraph of the resolution to change the words, “by
    code enforcement actions,” to state, ” because of  health and safety issues.”
    City Attorney Penman noted that the resolution indicated that a copy of the letter
    to Mr. Duran from City Attorney Penman) was attached as Exhibit “A,” yet no copy
    of the letter was attached to his copy of the resolution, and he would want to make sure
    that everyone who reads the resolution is also able to read the letter that he wrote.
    Council Member Lien amended her motion, seconded by Council Member
    Suarez, that said resolution be adopted, as amended in paragraph 7, lines 3 and 4, by
    replacing the words “by code enforcement actions” with the words “because of health
    and safety issues.”
    The motion carried by the following vote: Ayes: Council Members Estrada,
    Lien, McGinnis, Schnetz, Suarez. Nays: Council Members Anderson, McCanunack.
    Absent: None.

    On July 5, 2001, Sixth Ward Councilmember Betty Dean Anderson submitted a Request for Council Action to repeal Resolution 2001-007.  In her memorandum of the same date, Councilmember Anderson stated:

    In January of this year, the city government was still living in the aftermath of what had been a bitter November 2000 special city election.  Resolution No. 2001-007 was adopted hurriedly in this atmosphere.

    The Duran letter is also available online in the backup to the July 9, 2001 agenda item, which was tabled by the same vote.  City Attorney James F. Penman and Gil Navarro both spoke on the item.

    While the issue of the Cypress Inn Mobile Home relocations continued throughout 2001, and the EDA helped rehabilitate the park, the issue lay mostly dormant until the HUD investigation.  An abstract of an article dated December 27, 2001 in the Sun by Joe Nelson states that: HUD “launched an investigation into allegations that San Bernardino violated the Fair Housing Act and civil-rights laws when officials evicted dozens of Latino residents from a squalid mobile home park last year.” The same article says that the HUD complaint was filed on December 21, 2001.  If I recall correctly, the HUD complaint came in to the City Attorney’s Office December 26, 2001.

    On June 17, 2001, a professional services agreement was filed between the City and Lewis D’Amoto (and Joseph Arias in particular) to represent the City.

    HUD continued their investigation until October 2002.  The final report, according to the Sun, said that the City did not discriminate against Latinos in closing Cypress Inn Mobilehome Park.

    I never saw that report, and it is not available in the City’s online records.