(November 1)  SAN BERNARDINO—The continuation of James Penman’s 26-year tenure as San Bernardino city attorney will be on the line Tuesday when the county seat’s voters go to the polls during this year’s municipal election, which in this instance is augmented by recall questions against three city officials, including Penman.
2013 would normally be an off-political year for Penman, who was reelected to his seventh term as city attorney two years ago and has two years remaining on that term. But last year, after years of fiscal challenges, San Bernardino filed for bankruptcy. For many of the city’s 209,924 residents, that brought  City Hall and the officials there into disrepute.
In April, a hastily formed action committee, San Bernardino Residents For Responsible Government, declared that they were gunning for the political heads of mayor Patrick Morris, Penman and council members Wendy McCammack, Fred Shorrett, Rikki Van Johnson, John Valdivia, Virginia Marquez, Robert Jenkins, and Chas Kelley. The group said it was motivated in large part by the city’s filing for bankruptcy.
Eventually, the group called an end to its effort against Morris, who is not seeking reelection in November and will leave office next March. It also discontinued the campaigns against Jenkins, Marquez and Shorrett, who are standing for reelection in the November 5 municipal race to remain in office past March. It dropped the campaign against Van Johnson as well. It did proceed with the call to let voters decide on removing Kelley, Valdivia, McCammack and Penman.
While city clerk Gigi Hanna originally ruled that the group had failed to meet technical requirements to have the recall petitions against McCammack, Kelley and Penman considered, on August 22 Judge David Cohn ruled that Hanna had to accept the recall petitions and the signatures endorsing them and forward them to the registrar of voters to be tallied to see if the required number of voters had signed onto the effort to force the recall election to take place. Once the recall petitions and signatures relating to Penman, McCammack, Kelley and Valdivia were tallied by the registrar of voters, it was determined that 11,855 valid signatures had been affixed to the petition to remove Penman, 267 more than the 15 percent of the city’s registered voters citywide  needed to place Penman on the ballot as a recall candidate. In addition, it was determined, there were sufficient signatures –  at least 25 percent of the voters in their respective wards – to place McCammack and Valdivia on the ballot as recall candidates.  Signature gatherers, however, fell short in the effort to qualify a recall question against Kelley, who was one of eleven candidates vying for mayor in this year’s election.
As fate would have it, earlier this month, Kelley abruptly resigned from the council and ended his mayoral run on the same day he was charged with and pled guilty to diverting money in his campaign war chest to personal use. On the same day, his fellow council member Robert Jenkins was charged with 30 counts of fraud, identity theft, false impersonation and forgery.
Two candidates, Gary Saenz and Tim Prince, have emerged as alternate candidates to Penman. Their names will appear on next Tuesday’s ballot alongside the recall question against Penman. Should voters choose to remove Penman, his defeat will actuate the contest results between Saenz and Prince and whoever of those two gathers the most votes will succeed Penman.
Penman has pointed to the six times he has been reelected as city attorney following his initial election to the post and 26 years of guiding the city, the largest in the county, around numerous legal pitfalls, ensuring that the city’s codes are strictly and fairly enforced and simultaneously serving as a “watchdog” over the city’s elected and hired leadership.
He referenced seven “corrupt city officials” who have either been successfully prosecuted or otherwise removed from office during his tenure and maintains that taking up such cases and seeing them through to a resolution were demonstrations of his mettle and dedication as city attorney. He implied, without directly stating, that he was responsible for having instigated the investigation that led to Kelley’s resignation and conviction.
Penman said he has repeatedly shown the fortitude to openly declare that “council members are on the take. In each and every case, I was accused of lying. In each and every case, the truth of the statements I made was proved by subsequent events, including one joint city attorney/attorney general-filed law suit, jury verdicts, court orders, the defendants admitting the charges, paying large fines, and some even going to jail.
“Dedicated public officials speak the truth and those seeking to oust officials elected by the people should follow the same rules. I practice what I preach. I believe the recall proponents practice deception,” he said.
Saenz was less charitable about Penman’s performance, charging that he “brazenly flaunts his role as a political operative and policy-maker in his role as city attorney.”
If the voters cast Penman out and choose him as his replacement, Saenz said, “I will take politics out of the city attorney’s office.”
Prince was even more critical of Penman than Saenz, maintaining his failings as city attorney had impact beyond the scope of the city’s legal affairs, contributing to its financial downfall.   “Legal judgments against the city on cases he farmed out to outside attorneys and lost caused the city to urgently file for bankruptcy,” Prince charged.
Prince said Penman made inappropriate public comments defending Jenkins after criminal charges were filed against him last month. “Mr. Penman’s job requires him to defend the city, not the councilman,” Prince said.
Moreover, Prince said, he has a history of threatening and bullying city employees, including the city’s public works director on November 2, 2011, the director of community development on November 30, 2011, then-police chief Keith Kilmer in October 2010; and then-mayor Judith Valles in 2003.
Prince referenced numerous incidents in the 1990s that culminated in five female city employees filing sexual harassment complaints against Penman and the city’s subsequent investigation which resulted in his being reprimanded and required to attend sexual harassment training.
Prince said Penman’s legal acumen and ethics were brought into question by enforcement action against Penman taken in 2009 by the Fair Political Practice Commission, which levied its maximum punishment – a $5,000 fine – for failing to report that he accepted improper gifts from the Arrowhead Country Club.
Prince said that Penman had improperly lobbied the city council during a closed session of that body to increase the pension and other benefits of one of the attorneys working in his office. Prince said that Penman has repeatedly “encouraged the city council to raise employee benefits beyond what was financially sustainable.  Throughout his tenure Penman has consistently argued for higher pay, additional overtime and increased benefits for the wealthiest city employees, well beyond what the city can afford, bragging that he controlled four votes on the city council and ignoring the warnings of insolvency.”
Moreover, Prince said, Penman has disrupted the city’s management team, costing the city millions of dollars in terms of lost efficiency, administrative continuity and termination payouts. “Mr. Penman’s divisive political style has cost the city three police chiefs in seven years, three city managers in the past five years, the public works director, the director of finance, the assistant city manager, and others,” Prince said.
“Tuesday, November 5th could be a historic day in the city of San Bernardino – but only the voters can decide,” Prince said. “The bankrupt and much-maligned city has earned its poor reputation by having the highest unemployment rate in the state, one of the highest foreclosure rates, one of the lowest per capita incomes, and a never-ending crime and gang problem.  While the world economy of the past few years has impacted almost all cities, San Bernardino has achieved its bankrupt status through the actions of its leaders.
“City leaders, most notably the city attorney and the mayor, have been very divisive and have created factions in the city and on the city council,” Prince continued. “Voters are so outraged with the mess the city is in, a recall campaign was successful in collecting 30,000 signatures, placing the city attorney and the council members for Wards 3 and 7 on the ballot as well – meaning that seven of the eleven elected leaders in San Bernardino will face the voters on November 5th. We hope the dedicated voters of the city of San Bernardino select new, more fiscally responsible, ethical leaders.”