Last week, City Attorney Mara Elliott announced the city is suing SoccerCity and SDSU West, the competing measures to redevelop the former Qualcomm Stadium property.
She asked a Superior Court to boot both measures from the November ballot because they infringe on the mayor and City Council’s authority.
The City Council voted in closed session last month to hire a private firm to pursue the suit.
Michael Colantuono, a high-profile municipal lawyer, thinks Elliott’s right. “I agree that a measure trying to force sale or purchase of property is not a proper subject of an initiative,” he wrote in an email. “In technical terms, it is an ‘administrative act’ not a ‘legislative act,’ and only legislative acts are subject to initiative.”
What Can a City Attorney Tell Private Ballot Initiative Proponents?
A statement from Friends of SDSU, the group backing SDSU West, caught our attention: “The Friends of SDSU provided the city attorney with a draft of the initiative, and then met with her and her senior staff,” they told the Union-Tribune. “Based on that meeting, Friends of SDSU revised our initiative to address issues raised by the city attorney.”
We asked municipal law experts when a meeting like that crosses into an illegal gift of public funds.
City attorneys can help initiative proponents by pointing out ambiguities to make implementing the measure easier, said Leslie Devaney, a private lawyer and former deputy city attorney.
“You don’t want to hand-in-hand work together, or go back and forth — that would be writing the initiative together,” she said.
But cities can also inform proponents of possible lawsuits, she said. Preventing litigation could save money.
Colantuono said informal consultations are common.
“Most city attorneys would prefer to avoid a lawsuit due to a badly drafted measure if they can get it fixed,” he said. “There is no risk of a legal conflict of interest as the city attorney clearly has only one client — the city.”
The city attorney’s office said it generally accepts requests for meetings since the mayor and City Council might ask for a legal analysis on the issue.
But it has ground rules in those meetings. It can’t and won’t provide legal advice. It can’t and won’t use public resources in a campaign. And the attorneys can ask questions to better understand an initiative, but no one should read anything into those questions.
“We warn that their presentation may be met with awkward silence, and that they should not take that to mean that the city attorney’s office has concerns, has taken a position, or is pleased or displeased with the information presented,” spokeswoman Cheryl Nolan wrote in an email.
Friends of SDSU said it never suggested the group received legal advice from the city attorney’s office — which could have constituted a gift of public funds.
“We provided the city attorney with a draft of our initiative prior to finalizing, met with the city attorney and her senior staff, listened carefully to the questions they asked and afterwards using our own judgment made changes to the final draft,” the group wrote in a statement. “It is our understanding that SoccerCity representatives were afforded the same opportunity.”
Chris Garrett — attorney for FS Investors, the group behind SoccerCity — said he met with Elliott in January 2017.
“We wanted to change or modify the draft initiative to address any legal concerns, issues or questions she might raise,” Garrett wrote in an email. “We offered to hand out a copy of the initiative to them, but I recall that they refused to take the copies we had … After our initial description of the initiative, we were told that no one in the room from the city attorney’s office could or would offer any comments or respond to any of the points we discussed, or provide any other information regarding the initiative.”
“I was very frustrated that we could not get any feedback or answers to questions I had about possible concerns they might have about the Soccer City Initiative,” he wrote.