"With the information I have now, I don't have proof beyond a reasonable doubt," said McCammack, who is nonetheless convinced that the Brown Act has been broken.

The Brown Act prohibits city council members from holding secret communications or meetings that allow them to decide issues outside of scheduled public meetings. McCammack alleged a violation occurred during Monday's City Council discussion of a proposal that would allow the council to vote one of its own as Mayor Pro Tem, a leadership position that would have authority to assign council members to various city communities.

Currently, that power is vested with 1st Ward Councilwoman Esther Estrada by virtue of her status as the council's longest serving member.

McCammack said Monday that she believes a deal had been illegally made to eliminate Estrada's leadership post and to crown 6th Ward Councilman Rikke Van Johnson as Mayor Pro Tem.

She emphasized Thursday that she does not think Johnson broke the law.

Nobody at the meeting drank the alcohol, but Lopez placed 24 oz. cans of Budweiser, Miller Lite, Hurricane High Gravity lager and a 32 oz. bottle of King Cobra on the table for visual effect.
Lopez, a health education specialist for the San Bernardino County Public Health Department, wanted members of the Operation Phoenix Steering Committee to see the large containers of alcohol -- sold in single units -- that she and others at Thursday's meeting believe may be fueling crime in San Bernardino and other cities.

"When you get out of control sizes like this, single-serve is a drunk on the make," Mayor Pat Morris said at Thursday's meeting.

In many cases, San Bernardino officials seek to curtail single unit sales of beer and malt liquor. The state's Alcoholic Beverage Control agency enforces liquor laws, but city staffers have tried to exercise some power by prohibiting single sales in alcohol vendors' conditional use permits.
However, a recent survey concluded that many vendors ignore that restriction. An August check of 190 San Bernardino stores that sell alcohol found that all but 19 sellers offered single-units of beer or malt liquor.

Officials and consultants who believe their is a link between single-unit sales and crime say that stores in troubled communities are more likely to have single-units of beer or malt liquor prominently shown on store shelves.

"As we traveled to more high-crime areas, we saw more of the malt liquor being displayed," Lopez said.

Another concern is that people who buy large bottles and cans are probably not going to drink in moderation.

"They're ready to drink. They're served cold and they're packaged to consume on the spot," said Don Skiles of the Institute for Public Strategies.

"If you buy a six-pack, you take it home and put in the fridge," he added.

UC Riverside sociology professor Robert Nash Parker said underage drinking is often part of many young men's journey into gang life. He showed maps of Riverside that indicated a correlation between gang activity and concentrations of alcohol vendors.

"There's a tremendous overlap," he said.

Skiles recommended that San Bernardino officials to increase enforcement efforts relating to single-sales rules.

Each year, the pageant offers young women an opportunity to represent their school at community events, while gaining poise and self-confidence and honing their skills as public speakers.

Saturday's onstage events include evening gown, interview, and sportsweare competitions. Offstage judging focuses on grades and attendance.

The 2008 contestants are Isamar Suarez, Elaine Wellock, Alexsis Handlon, Jasmine Gonzales, Victoria Castillo, Derrisha Armstrong, Arantza Rocha, Ivana Lopez, Giovanna Medina, Khrystyne Villalobos, Carina Rodriguez, Loyda Zapata, Flora Zepeda, Martha Zepeda, Caroline Plasencia, Carla Morales, Sandy Chavarin, Rachel Anglin, Alejandra Ochoa and Briana Brown.

The panel of judges includes Miss California USA, Raquel Roxanne Beezley.

Tickets are $5 advance; $7 at the door. To purchase tickets call pageant coordinator, Jamie Rios at (909) 881-8058.

Monday, 7th Ward Councilwoman Wendy McCammack alleged that council members had privately made a decision on an issue before meeting in public for the day's City Council meeting. She said at the time, and repeated Tuesday, that she would refer the matter to the District Attorney's Office for investigation.

But Wednesday, McCammack said she was undecided on whether to seek a probe after being told that Penman has opined that a District Attorney's investigation may not be fruitful.

"Based on the information I've received, I've made a recommendation that rather than refer the matter to the District Attorney, although Councilwoman McCammack has every right to do so, it more be more advantageous to have additional training on the Brown Act, probably the issue of serial meetings," Penman said.

The Brown Act makes it illegal for a majority of council members in any California city from meeting privately to decide an issue in advance of public discussion. The law also bans "serial meetings," which are occasions when a majority of council members hold a series of communications to make decisions outside of the public's view.

McCammack and Penman often work together on city issues, but she said late Wednesday that she was unaware of the City Attorney's conclusions.

"I have to talk to him about what he's thinking," she said, indicating that she would wait to hear Penman out before bringing her concerns to county prosecutors.

Brinker wants the council to elect one of its own to hold that responsibility and says his idea is more democratic that relying upon seniority. However, McCammack and 1st Ward Councilwoman Esther Estrada - currently the council's most senior member - contended that Brinker's move was power play aimed against Estrada.

Estrada has pushed for the council to issue subpoenas to force city officials to testify about problems within the Operation Phoenix anti-crime program. McCammack has been the only council member to support Estrada.

Brinker has said he has wanted the council to elect its own leader long before Operation Phoenix's management problems became a subject of controversy this summer.

Reached for comment late Wednesday, he repeated his view that he and other council members did not violate the Brown Act before Monday's meeting. He offered that the fact the council has yet to reach a decision on his proposal proves there were no shenanigans.

"We had an open discussion. We did not take an action on something she (McCammack) said we had all agreed to in advance," Brinker said.

"If he (Penman) wants to provide more training, great," Brinker added. "But I don't think we need more training."

Penman said he reached his conclusions after speaking with all but one council member about McCammack's concerns. Brinker said he neither conversed with Penman nor received any messages from the City Attorney.

She said Tuesday morning that she is intent upon reporting her allegations to the District Attorney.

"I'm working on those details as we speak," she said.

McCammack, who represents the 7th Ward, first made her accusation at Monday's City Council meeting during an intense debate over how the council should select one of its own to a leadership position.

She charged that some council members violated the state's open meetings law by somehow deciding beforehand that 6th Ward Councilman Rikke Van Johnson would be granted authority to decide which council members get to work on the various committees that focus on specific city issues, such as the budget, personnel or law enforcement.

On Tuesday, other city officials expressed disbelief at McCammack's accusations.
When viewed in the context of recent San Bernardino politics, the tone of the controversy reflects continued divisions relating to the Operation Phoenix initiative, but 3rd Ward Councilman Tobin Brinker said that's not the whole story.

Tuesday, Brinker said he's wanted to change the way the council chooses its own leadership for more than a year.

"This has been an ongoing dispute. It's not new," he said.

[

"Esther and Wendy have done a pretty good job of alienating everybody (by) themselves," said 4th Ward Councilman Neil Derry.

In a telephone interview Tuesday, McCammack accused 2nd Ward Councilman Dennis Baxter, Brinker, 5th Ward Councilman Chas Kelley and Johnson of improperly coming to an agreement prior to Monday's meeting.

She also suggested that Mayor Pat Morris could have helped shepherd an agreement before Monday's open meeting.

Johnson and Baxter could not be reached for comment Tuesday. Brinker, Kelley and Jim Morris asserted there were no illegal conversations.

McCammack acknowledged that her allegations would be difficult to prove without a confession.

Asked why she is convinced state law was broken, she said "you knew straight up. Based on their conversation."

The Brown Act prohibits a majority of council members from meeting out of the public eye to settle official business. The law makes it illegal for politicians to meet in a proverbial back room or to reach an agreement through a series of communications.

Brinker said Tuesday that he has talked about the issue off and on for the past year, but merely repeated views he had previously expressed in open meetings. He said he did not lobby council members before Monday's meeting.

Jim Morris cq said Pat Morris "has religiously abided by the Brown Act."

The issue at the center of the controversy is Brinker's proposal to have the council elect one of their own to serve as mayor pro tempore for one year, with power to decide which of the seven council members are assigned to which city committeeS.

Currently, that power is vested in the position of senior council member. That position is currently held by 1st Ward Councilwoman Esther Estrada and would have been eliminated if the council approved Brinker's idea.

But the council did not make a decision Monday. Instead, the body accepted Johnson's suggested to delay the issue until Oct. 20 after City Attorney James F. Penman reported that Brinker's proposal was not properly written.

Kelley said during Monday's meeting that no there was no kind of conspiracy among the council members.

"We haven't done it. How do we know who the hell the mayor pro tempore is?," he said
Tuesday when asked if he spoke with other council members about Brinker's proposal.

Jim Morris acknowledged that the mayor spoke with Brinker about the leadership proposal. He also said the mayor had provided some information to other council members, but was unable to name who those members were.

"It's not like he had some substantive conversation," Jim Morris said.

At the very least, the allegation shows just how fractious San Bernardino's council has become in recent months.

Two council members on different sides of the issue said the controversy stemmed from efforts to seize power within the council. However, they had very different views on who exactly is trying to grab power.

In McCammack's view, other council members are seeking to punish Estrada for seeking subpoenas that would have forced city officials involved in the administration of Operation Phoenix to testify before the council.

Phoenix, an anti-crime effort that involved collaborations between police, code enforcement and recreation officials, became a subject of controversy after the July 3 arrest of community center Mike Miller cq opened the door to news or management troubles within the program.

McCammack was the only council member to support Estrada's bid for subpoenas, which were voted down twice.

When Brinker discussed his proposal Monday, he said the idea was a way to make council leadership more fair, since the seven-member body could take a vote to decide who assigns members different duties, rather than vest that responsibility with whomever has the longest stint on the council.

Derry agreed. He noted that McCammack is next-in-line to be Senior Council Member and opined that her effort to preserve the current system is a power play.

In an interview Tuesday, Derry said the council needs to reform the way it runs itself and eliminate the Senior Council Member position.

"It's an idiotic way to appoint committee members," he said. "It's an anachronism. It's undemocratic."

Dennis Baxter, Tobin Brinker, Neil Derry and Chas Kelley voted for the promotion.

Esther Estrada, Rikke Van Johnson and Wendy McCammack cast "no" votes.

Boom supervised Sgt. Brad Lawrence, who has been accused by fellow officers of illegally detaining suspects. Councilwoman Wendy McCammack had previously spoken against the promotion in previous meetings because of Police Department's investigation into Lawrence's alleged actions.

The council cast its vote after retreating into closed session. Fifth Ward Councilman Chas Kelley said Tuesday morning that unlike McCammack, he did not see any information to convince him that Boom should not move up.

"I saw the same files," Kelley said.

Boom is slated to be one of two captains leading SBPD's patrol operations. He did not immediately return a phone call seeking comment.

The police union, which has taken a vote of no confidence in Police Chief Michael Billdt, also opposed Boom's promotion and any other management changes. Billdt plans to retire in March and union leaders have taken the position that SBPD's next chief should decide who takes on command duties within the department.

"Let the new police chief pick the managers he wants to work with," police union president Rich Lawhead said Monday.

"It's not a personal attack on Lt. Boom," Lawhead added.

The meeting is scheduled to be held at Feldheym Library, 555 West Sixth Street.

Here's a link to Omnitrans' information on the proposal.

SAN BERNARDINO IS NOW ACCEPTING APPLICATIONS FOR THE 2008
MILLS ACT PRESERVATION PROGRAM

On November 7th, 2006, the Mayor and Common Council unanimously adopted
the Mills Act program, an incentive program which encourages San Bernardino
residents to reinvest property tax savings into the revitalization of their historical
property.

The Mills Act is a state law designed to provide financial incentives for property
owners who restore and maintain historic residential and commercial properties.
This incentive comes in the form of lower property taxes.

The Mills Act Program requires that the property tax savings be reinvested into the home or structure to secure the historical integrity of the property. In order to be considered for this program, the property must be identified in the San Bernardino Historic Resources Reconnaissance Survey, and/or recommended to the City Council by the Historical Preservation Commission. Most structures built before 1942 are eligible for this program.

Applications for the Mills Act Program are accepted throughout the month of
October. Completed applications for 2008 must be received by the City
Manager's Office, located in City Hall at 300 N D Street - 6th Floor, no later
than 4:30 p.m. on Friday, October 31st.

For additional information regarding the Mills Act Program, or to receive your
Mills Act application packet, please calls the City Manager's Office at 909-384-
5122 or visit the City's website at www.sbcity.org.
Office of the City Manager
300 North D Street
San Bernardino, CA 92418
909-384-5122 Phone
909-384-5138 Fax

Francke took issue with the way I characterized a case in my recent story on Joseph Turner's effort to obtain records from San Bernardino. Turner, who recently worked as a consultant for the San Bernardino Police Officers Association, sought voluminous records from the city. City Attorney James F. Penman wanted to charge Turner nearly $2,000 for documents, claiming that the difficulty of restoring electronic files justifies the bill.

Penman cited American Civil Liberties Foundation v. Deukmejian, a 1982 case, to argue that case law would have been allowed the city to deny Turner's request because of the work required to provide the sought-after records.

Francke disagreed with the way in which the case was presented in my article, here's his entire response:

The original article is posted after the jump:

SAN BERNARDINO - Joseph Turner, a local figure who has managed to find himself involved in some of the city's biggest controversies of the past couple of years, is now in a disagreement with the City Attorney's Office over a gargantuan Public Records Act request.

Turner, who until recently worked as a political consultant for the San Bernardino police union, filed multiple public records requests in August and September for copies of key officials' e-mails and any lawsuits related to a police lieutenant.

Some of the records were provided, but when Turner visited City Attorney James F. Penman at Penman's office in late August to view some of the provided e-mails, the two men had an argument.

Turner said that after leaving Penman's sixth-floor office at City Hall, he was handcuffed by a police officer in the city's parking structure.

"Make no mistake, I was detained," Turner said.

Penman said he called police when Turner returned the following morning and another argument ensued. Penman said a city attorney's investigator escorted Turner out. Turner said he left voluntarily.

Turner's requests came in the wake of summer's Operation Phoenix controversies that followed community center manager Mike Miller's arrest on suspicion of child molestation. Turner was still working for the police union when the rank-and-file's dispute with Police Chief Michael Billdt became public.

In regard to the e-mails, Penman demanded that Turner shell out more than $1,800 to pay the costs of having IT staffers restore the records. Turner argues that Penman was way out of line.

To Turner, asking for a such a hefty sum is an "obviously prohibitive cost" that serves to discourage any member of the public from investigating City Hall affairs.

Penman's response is that Turner's requests went well beyond what's reasonable and would have so burdened city employees that staffers would not have been able to serve other residents.

The problem, Penman said, is that some of the records desired by Turner are not in the city's possession. Some of the hard drives where the requested e-mail records are stored are in the custody of the sheriff's crime lab because they were taken as evidence.

"If a request is made that is so burdensome it's going to tax the city's resources, the city can just say no," Penman asserted.

And that's where the law comes in. Although government agencies are generally prohibited from charging requestors anything more than the direct cost of copying records, two experts contacted by the The Sun had differing views of Turner's situation.

Californians Aware general counsel Terry Francke said Penman is wrong to charge Turner nearly $2,000 for records. He cited an opinion issued for a 1984 case, North County Parents Organization v. Department of Education, in which an appellate judge wrote that agencies cannot charge people for the costs of searching for requested records.

But Penman said Turner's request entailed more work than just a routine search through City Hall's file cabinets or computers.

"Some of the information, IT thought they could reproduce, but it would be expensive to do so," Penman said. "It would have been thousands and thousands and thousands of pages."

In a 1982 case, American Civil Liberties Union Foundation v. Deukmejian, the state Supreme Court ruled that the effort needed to provide certain law enforcement records would be so burdensome that in consideration of the fact that legally confidential information would have had to have been deleted from the documents that nondisclosure was justified.

Penman referred to that case while arguing that his office was right in asking Turner to pony up the money.

California First Amendment Coalition Executive Director Peter Scheer did not refer to the ACLU case but allowed that officials could be justified in charging fees if finding an electronic record would be difficult and costly.

"If there is a situation where they would have to spend time constructing data from various places ... it's not clear exactly where the line is," Scheer said.

In demanding Turner pay, Penman is "at least taking a position that may be plausible," he added.

andrew.edwards@inlandnewspapers.com

(909) 386-3921

Asserting that "The wheels have fallen off at City Hall," the mailer's front page shows Morris in a black sedan that's up on cinder blocks. Three tires with the words "Operation Phoenix," "Police Chief" and "City Manager" are strewn on the ground.

The image - and text inside - are part of the police union's argument that city leadership is in "crisis." San Bernardino is in the process of finding a new city manager, the union and Police Department civilian employees have taken no confidence votes against Billdt and Operation Phoenix has been enmeshed in controversy since once-popular community center manager Mike Miller was arrested on suspicion of child molestation.

The mailer shows the union wants San Bernardino residents to support council-issued subpoenas for Phoenix supporters, an immediate national search for a new police chief, no Police Department management changes until a new chief is in office and more collaboration between the police union and mayor's office.

I'll be calling Morris' office to see if he's getting any phone calls or has any comment on the police union's mailer.

Westside residents crowded the council chambers at City Hall Wednesday night to demand air quality improvements around their neighborhoods.

State regulators and BNSF employees heard about three hours from angry, frightened and impassioned words from people who demanded to know why the best possible technology could not be purchased for the San Bernardino rail yard at the earliest possible time.

Wednesday's meeting followed the release of a draft cleanup plan that sets targets for emissions reductions to be achieved in 2015 and 2020. Although BNSF executive Mark Stehly took pains to point out the rail company has tried to cut pollution since 2005, but many in the audience remained upset by having to wait for more breathable air.

"Does one of your children have to suffer from cancer so you can take awareness?," one audience member asked Stehly and the regulators who attended the Wednesday night meeting.

Cancer risks around BNSF's San Bernardino yard have come to attention after the California Air Resources Board released the draft a study called a Health Risk Assessment in April. The report, which relied on 2005 data, concluded that emissions from trains, trucks and other vehicles in and around the 168-acre railyard present elevated cancer risks to people who live in the surrounding neighborhood.

In 2005, engines coughed up 33 tons of diesel particulate matter within one mile of the San Bernardino yard. Researchers used a mathematical formula to show that in a worst-case scenario, diesel pollution increases the cancer risk by 500 chances or more per million cases for about 3,800 people who are the rail yard's closest neighbors.

The increased risk is above what 1,000 in one million cancer risk that regulators call the background level within the South Coast Air Basin of Southern California. The background level is the cancer risk that residents face simply for living in the Inland Empire or greater Los Angeles.

Harold Holmes Jr., the California Air Resources Board's engineering evaluation manager, said Wednesday that cancer risks around the San Bernardino yard are expected to be reduced by 85 percent by 2020.

At Wednesday's meeting, regulators expressed agreement with residents that the current cleanup timeline is not fast enough, but also said the current technology levels do not make it feasible for railroad companies to immediately switch from diesel engines to cleaner equipment.

"There is kind of flow of time that it takes," said Robert Fletcher, chief of the Air Resources Board's Stationary Sources Division. "It's not like we're standing still and nothing's happening."

Since 2005, BNSF has replaced 30 vehicles used to haul cargo around the yard with cleaner models, Stehly said. The company has also decided to bring in greener switching engines by 2015.

"You have our highest attention," Stehly said. "We are doing things here we don't do anywhere else."

Like the many residents who attended the meeting and voiced their concerns about cancer -- some said family members died of the disease -- Mayor Pat Morris and First Ward Councilwoman Esther Estrada called for quick action to reduce pollution.

"We all have relatives and friends who have died of cancer," Estrada said Wednesday.
Estrada said people living near the railyard to organize and press for improvements. She also said it more be necessary for BNSF to relocate its San Bernardino operations.