Jan Goldsmith put forward some bold ideas during his first four years as city attorney.
When Mayor Jerry Sanders and the City Council were negotiating putting a tax increase on the ballot two years ago, Goldsmith chimed in with his own suggestion for a way to raise money at the ballot box. He outlined a legal way for the city to privatize its trash services.
Goldsmith also proposed settling the city’s longstanding pension lawsuits through one mega negotiation. And when Republicans politicians and business leaders announced an April 2011 deal on the pension ballot measure that became Proposition B, Goldsmith was at the press conference. One part of the measure was there at his request.
All this could be surprising for someone who campaigned on a platform of being apolitical in office. But Goldsmith says there’s a difference between being active and political. Goldsmith faced no opposition and won a second four-year term earlier this month. He promises to be just as active. We talked about how.
When you were first elected city attorney, you had said you would only serve one term, and the quote was, unless “everything crumbles.” Given that you’ve decided to serve a second, has everything crumbled?
I left myself wiggle room, but the one thing I was adamant about is that I wouldn’t run for mayor.
I don’t remember the quote, but whatever it is, I decided that I like working with this office and the people in it. The position remains a challenge. We’re not finished with what we want to accomplish. I think I can bring some stability through our office.
That was a decision I made regardless of what I said. I don’t believe it was a commitment like I’m not going to run for mayor.
I think it would have impaired my ability to do a job as city attorney to have on the table the notion that maybe I’d be running for mayor.
You said certain things were left unfinished. What’s left unfinished?
I don’t think our office is perfect. I’m not sure anything in life can meet perfection, but I think we can do better.
I think we can handle labor negotiations better. That has been an issue since the beginning. It’s a carryover of the dysfunctional relationship between the City Attorney’s Office and the Mayor’s Office that we’ve been trying to address.
You saw a little bit on [the recent deal between the city and its unions to cut retiree health care] at the end when the outside labor negotiator made some changes that we weren’t in on and they affected key points.
There was some miscommunication. The left hand didn’t know what the right hand was doing.
Does that simply mean that you guys are in charge?
The mayor’s the lead negotiator. But we as the lawyers are supposed to be there at all points. There’s been some failures there of the team approach. That’s one area that we need to work on to make it smooth.
In your initial campaign, you had talked about keeping politics and policy out of the City Attorney’s Office and that was in stark contrast, you said, to your predecessor. Particularly in the last couple years, we’ve seen you be more active in some of those areas. I’m thinking specifically about the trash privatization plan that you put out and the move to try to do a global pension settlement. Where is the line between doing straight legal work and venturing into policy and politics?
I think I’m pretty comfortable that we’ve stayed within the line. First of all, people who don’t agree with your legal opinions have a tendency to say that it’s all political.
Our lawyers are under a culture in this office that we do our work based only on the law, not based upon policy. We have 140 lawyers in this office. It’s not just me. You won’t be able to determine what their true views are. You don’t know what my true views are.
The two issues that you cited. The global settlement was with unanimous consent of the City Council and the mayor.
But you brought it to them. You initiated.
I did bring it to them because a global settlement involves settlement of lawsuits. We had at that time, a bunch more lawsuits on the table. Settlement of lawsuits is what lawyers do. That’s a creative thing to do, I thought at the time.
The other issue, trash. Questions were raised: What can we do? I recall that we were responding to a request.
No. No one had asked, please, Jan, investigate.
Well, I have to tell you. Maybe no one publicly would ever ask a question like that. We gave options.
Putting options on the table, I don’t view that as policy. If I was to stand up and say, I think we should eliminate free trash in the city of San Diego, maybe, if our legal work was involved in that.
Let me use your language. You said, put ideas forward. Should we expect you to put more ideas forward during your second term than you did in the first?
Yeah. I think we try to do that. We did the same thing with [reforming the Deferred Retirement Option Plan], for example. We issued an opinion that said here are the options you have for DROP if you want to. In fact, I even attached a copy of the court’s version of the DROP program. But I’ll be very careful not to say I am proposing this and the city should do this.
Again, some discretion. It’s easy when you’re putting out options to jump over that line. You gotta be really careful.
I do think that that’s part of your job. Imagine back in 1996 and 2002 if the City Attorney’s Office had provided options instead of letting (notorious city pension deals) MP-1 and MP-2 to go forward, and they put them out in public. Do you think we would have had MP-1, MP-2? I don’t think so. So sitting back passive is not my idea of being a good lawyer.
What chance do you think the Convention Center expansion plan has of succeeding in court?
I’m not going to go more than 50-50. I don’t know. I have no idea. I don’t think it is clearly illegal. If it was, I wouldn’t have allowed them to go forward. I think a comparable plan was approved in San Jose. I think that if San Diego’s plan is approved, it is something that would probably be used around California quite a bit.
You have seemed to suggest that you wouldn’t mind seeing it fail. Here was the quote about the hotelier vote: “I don’t want to campaign against it so I won’t say anything. If it fails, then our lives are a little bit easier.”
Is that saying I want it to?
You’re saying you wouldn’t mind seeing it go down, right?
I said my life becomes a little easier. That was a pretty honest answer. If the hotel property owners voted this tax down, we wouldn’t have to do a validation lawsuit. And I wouldn’t be having to answer this question. And I wouldn’t have a year or more of litigation. That’s what I was saying. I think that was pretty astute actually.
My client gets to test the law if they want to test the law. That’s what they’re doing. When you test the law, the chances are pretty good it’s going to go to the trial court, the appellate court and the Supreme Court. Maybe somebody along the line will decide, we don’t want to appeal. But that’s a lot of expense and time put into this convention vote. What I’m saying is, if they vote it down, then it’s all moot.
You’ve taken some heat for showing up at the press conference that announced the deal for the pension initiative that became Proposition B. Looking back on that now, would you do that again?
I congratulated John Witt and his law firm — he’s the former city attorney — for participating and putting together Proposition B and drafting it. There’s one provision in Proposition B that I really wanted in there. I wanted to express my appreciation. That is the provision that we can resolve [a Goldsmith-initiated lawsuit that would force the city and employees to share pension investment risk]. That was at my request that it’s in there.
I congratulated them and then I stayed out of it. You didn’t see me as part of Proposition B from that point forward.
But would you show up at the press conference again?
Oh yeah. I exercised my discretion in a very limited way.
I know you talk about the charter’s role in deciding city policy a lot. Why do you always keep coming back to it?
Because the City Charter is the local constitution. It is the highest law in our land for the city of San Diego, preempted only by some laws on the state and federal level. It is more powerful than the City Council, the mayor and the city attorney. We must follow our charter.
I want to go back to the pension initiative for a second because does not the charter say that the city attorney can’t do any private legal work?
So you were involved in at least one section of developing Prop. B. How does that not conflict with the charter?
I didn’t draft it.
But you said you wanted one provision in there.
I didn’t give any legal advice. I didn’t want to be hamstrung. That’s one of the problems you have when you have a citizen’s initiative. If I had an opportunity to have some input, I’d love to have input into citizen initiatives if I could.
But you did. How is that not private legal advice?
Who am I giving legal advice to?
The folks who are drafting …
No. I’m making a request. There’s nothing wrong with that.
Why does the city keep losing fireworks cases?
We haven’t finished those cases.
The decisions are not going your way.
Law libraries are full of appellate decisions.
Landmark court cases on the trial level, just like the validation lawsuit, will be determined by the appellate courts. There haven’t been cases like this before.
The city of San Diego is really no different than other cities around the state. My goodness, fireworks have been here for over 2,000 years.
It’s a case of first impression. If they’re successful it would open up a new field for lawyers to make a lot of money suing cities and counties on not just fireworks but all kinds of permits. We’re blessed to be out in front of this I guess.
Interview conducted and edited by Liam Dillon, who can be reached at email@example.com or 619.550.5663. Liam covers San Diego City Hall, the 2012 mayor’s race and big building projects. What should he write about next?
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