Monday, October 24, 2005 | We here at SLOP (aka Scott Lewis on Politics) recently received another nomination for our ongoing list of Surprising Alliances.

Some may remember our first couple on the list: Councilman Brian Maienschein and Councilwoman Donna Frye. Maienschein, the button-down Republican from the northern arm of the city and Frye, the maverick populist currently running for mayor have repeatedly joined together this year on several of the most pivotal decisions the City Council has faced. (Last week, incidentally, they did so again, effectively killing a measure that would have provided legal defense funds for former Mayor Dick Murphy and former City Councilmen Michael Zucchet and Ralph Inzunza.)

This time the Surprising Alliance is between attorneys Mike Conger and Ann Smith.

Conger, of course, is the lawyer who on behalf of city retirees sued the pension system in early 2003 eventually forcing the city to ramp up its contributions to the beleaguered retirement fund. Smith is the attorney working for the largest union of city employees: the Municipal Employees Association.

Last Monday, Smith appeared before the City Council to ask them to consider settling Conger’s newest legal action against the city and the pension system: Filed on behalf of city retiree William McGuigan, Conger is essentially redoing his 2003 lawsuit.

Conger has offered the city a settlement in the matter that would involve transferring ownership of the Fairbanks Ranch Country Club and other valuable city properties over to the city’s pension system.

It might seem kind of odd that Smith would speak in favor of anything that Conger proposes.

After all, there is some history of tension between the two that makes a SLOP-certified Surprising Alliance seem unlikely. For instance, there’s the letter Smith wrote to the City Council 10 months ago accusing Conger of being part of a “troubling conspiracy” with City Attorney Mike Aguirre to roll back allegedly illegal pension benefits.

That remark had come after Conger had threatened to file a follow-up lawsuit to his original that, if successful, would have voided a pension benefit enhancement in 2002 based on the same legal theory he had used to bring the city pension board to the settlement negotiating table: That to get those benefits the pension board had breached its fiduciary duty and broken state conflict-of-interest laws.

But Conger’s newest suit doesn’t ask a court to void any pension benefits – only that the city pay for them. That is, of course, interesting because he has already filed and settled that lawsuit.

So in this new lawsuit he asked the city to transfer all that property mentioned above over to the pension fund to further pay down the retirement system’s so-called unfunded liability: a measure of the assets to the liabilities in the retirement fund. It’s a shortfall estimated currently to be $1.7 billion.

And that’s when his newfound ally Ann Smith showed up to support him in front of the City Council.

“It seems logical that you would take a very careful look at this settlement proposal,” Smith told the City Council. She said it might be an opportunity to begin a transfer of assets over to the pension system that employee unions had asked the city to do when it reached agreement on a new labor pact in May.

“When Ann Smith is right, she’s right,” Conger said as a way to explain their convergence.

Yahoo! Nobody’s watching

Yeah, we know there’s no imminent change to California’s open government laws expected and e-mails will still be considered public records in the future.

But we’re still worried.

See, this wasn’t the first time we had found ourselves learning interesting and important things about how the bowels of the city’s government functioned by reading what city officials may have wrongly considered private e-mails. One need only look back at this story by Voice‘s Andrew Donohue to see the public benefit in being able to track those kind of electronic documents and look through them.

Not convinced? Look at the myriad reports about the city published over the last two years about the developing financial crisis. How much less would we know about the situation without the thousands of e-mails to which investigators had access including the now-infamous “EEEK” e-mail sent by a former city official as she realized the potential for this pension thing to get out of hand?

It seems like it’s too good to be true – that there will be an always reliable fountain of historical record we can turn to and look through when we suspect something interesting may have happened in the past.

And it probably is too good to be true.

The gig is up. Public officials have also seen what happened with the e-mails over the last few years and they’re not about to let their e-mail conversations of the present and future make their ways to the public again.

Nothing’s changed legally. The city still has an e-mail policy that informs public employees that their e-mails in most cases are public property.

But nine times out of 10, if you get an e-mail from a city official these days – one that isn’t a mass newsletter or some kind of impersonal formal communication – it will come from that person’s Yahoo! Hotmail, AOL account or some other private account. Some will even tell you not to use their official city, county or state e-mail and to please use, instead

Peter Scheer, the executive director of the California First Amendment Coalition, said those e-mails – as long as they pertain to government business – are still part of the public domain. But good luck trying to acquire them.

E-mails sent from, say, sandiego.gov are relatively easy to inspect and release to the public by accessing central databases and servers.

Now try to get at somebody’s Yahoo! account.

Access to public records is a crucial tool to hold elected officials and others accountable for the decisions they make.

There is a simple solution to make sure that Yahoo! and AOL don’t form the future infrastructure upon which daily government and business is conducted: Public employees should not be allowed to access their web-based e-mail accounts while at work. Many companies restrict access to those Web sites in the name of efficiency anyway.

They can still send e-mails all they want. But if the city of San Diego, for instance, were to do that, elected officials would have to revert to the old fashioned way of communicating without worrying that somebody will have a record of what they’re saying: They’d have to make a phone call.

Of course, in 21st-century San Diego, you never know when the FBI might be making a record of those as well.

Please contact Scott Lewis directly at

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