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So this issue of whether City Councilman Brian Maienschein’s kitty could be spent on his bid for city attorney turned out to be a bit bigger deal than I thought. Channel 7/39’s Gene Cubbison was planning to do a story about it tonight.

It appears Jan Goldsmith, the former Poway mayor turned legislator, turned judge turned San Diego resident turned city attorney candidate, is openly complaining to the city’s Ethics Commission about it. Goldsmith sent me an e-mail earlier with his thoughts and reasons why Maienschein should not be allowed to transfer the more than $250,000 he raised in 2004 for his reelection to the City Council to a new account for use in the city attorney’s race.

The city prohibits candidates from raising funds for city races more than 12 months before those elections take place. But, according to the commission, nothing prohibits candidates from transferring funds from one committee to another.

Goldsmith accused Stacey Fulhorst, the Ethics Commission’s director, of trying to protect Maienschein, after her comments to me yesterday.

It appears to me that Ms. Fulhorst is reaching for whatever she can in order to allow Mr. Maienschein to do something that other candidates are unable to do. If these contributions had been raised from corporations they could not be used in this campaign and there would be no First Amendment right to use them.

He goes on:

I teach this topic at three San Diego law schools and am familiar with the case law. The Supreme Court decisions I am familiar with prohibit on First Amendment grounds limitations on expenditures by candidates from their personal or family resources. The money stashed in the City Council Committee is not personal or family resources.

I called campaign lawyer Jim Sutton, the Republicans’ go-to guy on this stuff. He only had a moment to talk but he made his view on it pretty clear. While he took the opportunity to point out how awkward the city’s rule is that prohibits fundraising until 12 months before the election, he wasn’t ambiguous.

There’s no way the city could prohibit Maienschein from transferring his stash to his new effort. The courts were clear on the matter, Sutton said.

Fulhorst was clear with me, even though I may not have been, that she was only talking about the law — the commission hadn’t issued an opinion on Maienschein’s specific case.

Fulhorst shared a 2002 opinion from the California attorney general as well. Read it here. You lawyers let me know if you see any particularly insightful passage in it but it seems like it backs her up.

But Goldsmith is adamant.

I would request that the Ethics Commission be fair and impartial in addressing this issue. The appearance is that the Commission is stretching to find ways to allow an incumbent Councilman to do something that is unavailable to any other candidates. A more thoughtful and impartial means of addressing this issue would be to allow both Mr. Maienschein and me to be heard on the issue and then for the Ethics Commission to issue a comprehensive decision with a full explanation of the bases. Simply giving a quote to a news reporter and citing the First Amendment— while refusing to even discuss the matter with me— is neither fair nor impartial.

This is only the beginning. A bunch of attorneys running in a hyper-politicized race for city attorney will be fighting like this every single day.

SCOTT LEWIS

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