(August 2) SAN BERNARDINO – Claiming that San Bernardino city officials delayed their responses and improperly confiscated recall petitions, the group sponsoring the effort to remove most of the city’s politicians from office filed a writ of mandate with the San Bernardino Superior Court on July 29 seeking to compel City Clerk Gigi Hanna to count signatures endorsing the recall against city attorney James Penman that Hanna has rejected as improperly collected.
Michael L. Allan, the attorney representing San Bernardino Residents For Responsible Government, stated in the writ that Hanna had used a “false pretext” to derail the recall effort.“Hanna’s actions do not comport with the clear language of the [city] charter, nor are they based upon the documents filed pursuant to the recall nor the timing thereof,” according to Allan.
San Bernardino Residents For Responsible Government, headed by Scott Beard, formed in April and has undertaken to recall Mayor Patrick Morris, all seven members of the city council and city attorney James Penman.
According to Allan, the group adhered to the recall process specified in state law and in the city of San Bernardino’s charter, including proper handling of the petitions, their circulation and giving the recall targets the opportunity to provide a response that would be circulated with the petitions when signatures were gathered by the proponents. Allan claims, however, that city officials, including Penman and city manager Allen Parker, used their positions and authority to intimidate Hanna, illegally take custody of the petitions and through an overbearing assertion of non-existent protocol induce her to reject the petitions pertaining to Penman that have so far been filed.
According to Allan, “On May 21, 2013, the city manager, Allen Parker, descended upon Hanna’s office and confiscated the recall election files, taking the documents to his office. Reputedly, Hanna did not resist the confiscation of the recall election files. It was not until, approximately June 5, 2013 at 4:25 PM that Hanna took possession again of the recall files.”
The writ continues, “On July 12, 2013, petitions requesting the recall of city attorney James F. Penman, bearing almost 19,000 signatures of the voters of the city of San Bernardino, along with a filing cover letter and a certificate of acknowledgment, were submitted for filing to Hanna, in her official capacity as the city clerk of San Bernardino and its elections officer. Hanna stated that she as invalidating the petitions, returned them to Beard, and declined to sign the certificate of acknowledgment. She then handed an already prepared letter to Scott B. Beard, proponent and responsible officer for San Bernardino Residents For Responsible Government, attempting to justify her rejection of the petitions. Hanna’s letter asserted a failure to jointly publish the notice of intent to circulate a recall petition and [the] answer of Penman as the justification for her action. Hanna did not provide a certificate of sufficiency or insufficiency regarding the petitions or the reason for their alleged deficiency.”
According to Allan, the recall effort’s campaign manager, Michael McKinney, had earlier sought to comply with the requirement that the recall targets be allowed to propound their response to the recall group’s stated grounds for the recall.
“On May 9, 2013, on behalf of the proponents and the proponents committee, McKinney began requesting information regarding the filing of answers by the officers, and copies of answers filed and statements regarding publication,” the writ states. “Further requests for the answers, and copies of any other documents filed, if any, including the officers’ declarations of intent to publish, were made on May 13, 14, 16, 20, and 24, 2013, requesting from Hanna copies of all documents filed by the officers in response to the notices of intent to circulate recall petitions. No purported declarations of intent to publish were sent by Hanna or her office, nor acknowledged. Indeed, on May 14, 2013 at 8:48 AM, [and] at approximately 1:30 PM, McKinney telephoned Hanna and spoke with her directly and asked her for copies of the declarations of intent to publish by the officers, if any had been filed. Hanna responded that there were none.”
The writ continues, “On May 24, 2013, McKinney at 10:03 AM, emailed a letter to Hanna, inter alia, acknowledging that the city manager had removed the recall documents and files from her office, and reminding her that no declarations of an intent to publish, which had been repeatedly requested by the San Bernardino Residents For Responsible Government, had been provided by her office or by the city manager during his interregnum.”
According to Allan, on May 29, Parker wrote the recall group, asserting that all of the recall proponents had filed answers they wanted published with the recall notices and that the recall proponents were required to publish those answers.
When Hanna rejected the petitions to recall Penman, she cited the section of the city charter which provides for the circulation of petitions only after the simultaneous publication of a notice of intention to circulate a petition together with the reasons for the petition and any response the targeted official provides. According to the city, Penman has a copy of his request with a time stamp indicating the request was made by the deadline and at the same minute that he submitted his response.
Allan maintains Penman’s response was forwarded to the recall proponents too late to be included in the published notice of the recall but that it was included on the petition for recall, which afforded those who signed the petition the opportunity to read his answer before they endorsed the petition.
The writ calls upon the court to “issue an order declaring that a) plaintiffs/petitioners complied with the requirements of Charter Section 122 as regards the service, filing, publishing, circulation for signatures, and submission for filing of the recall petition concerning Penman, b) that the officers, and each of them, failed to comply with the strictures of Charter Section 122 regarding any purported request for joint publication of the notices of intent to circulate a recall petition and their respective answer [and] c) that no duty to jointly publish the notices and answers of the officers, or any of them, is now or was during the period from the filing of the notices against the officers to the present time, incumbent upon the petitioners.”
Neither Hanna nor Parker had filed a response to the writ by press time.