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Early Friday morning, NBC 7 investigative reporter Dorian Hargrove shared a letter from City Attorney Mara Elliott’s office, announcing its criminal investigation into whomever leaked him documents from the city’s various investigations of its disastrous acquisition and renovation of 101 Ash St., a downtown high-rise.
The letter, from Elliott deputy John Hemmerling, didn’t just promise a leak hunt for Hargrove’s sources. It also asked for his cooperation identifying those sources – a chilling request on its own – and threatened that he too could become a target of the criminal investigation if he didn’t preserve the documents in his possession.
In the world of press freedom and public information, these actions – launching a leak hunt, bullying a reporter with a legal threat over reporting leaked information – would qualify as “not good.”
By Friday afternoon, Elliott had backtracked.
“The letter my office sent earlier to an NBC reporter never should have been sent,” she wrote in a statement shared on Twitter. “My office has never – and will never – prosecute a journalist or compel them to reveal confidential sources.”
Elliott said it was a form letter that is appropriate to send to potential witnesses, but not reporters. She said she called Hargrove to assure him she wouldn’t be investigating him, now or ever.
That’s good. But there’s no indication in the letter that she called off the leak investigation, which probably isn’t surprising, since this isn’t her first leak hunt.
Recall Cate Gate: In 2017, the city attorney circulated a memo to the City Council about legal questions and analysis of the SoccerCity development proposal for Mission Valley. The document became public after some Union-Tribune reporting. Councilman Chris Cate had sent it, he later admitted, to the developers behind the project. Elliott called the leak a “betrayal of public trust,” promised to root out who was responsible, and was not at all assuaged when Cate announced it was him. She referred the issue to the district attorney’s office for prosecution, who then punted it to the state attorney general. Attorney General Xavier Becerra quietly declined to pursue the matter.
In fairness: Cate leaked the memo not to the press, but to the developers of the project proposal that Elliott’s office analyzed. Cate said he was simply looking for more insight into the questions Elliott raised. But leaking documents to parties with financial interests in those documents is not as straightforward a matter of transparency, the First Amendment and freedom of information as leaking those same documents to reporters, who are — in all cases — virtuous. Cate paid a $5,000 fine to the city’s Ethics Commission.
A less high-profile instance, though, involved a leak hunt by Elliott’s office over a story Voice of San Diego published in 2018, about the sexual assault of a special needs student at Lincoln High School in 2016.
After that story published, Elliott’s office launched an investigation into who leaked us the police report of the incident.
It was an aggressive investigation. How aggressive? The city attorney’s office breached a suspect’s right to attorney-client privilege, and broke the State Bar’s rules of professional conduct, an appellate court ruled in late 2018.
Viewing those three instances together, you might come to the conclusion that Elliott and her office take a dim view of the value of the internal deliberations of city workers becoming public through a free and independent press – even in instances of a publicly funded investigation into a disastrous public real estate acquisition, a legal analysis of a major proposed development project on public land or the sexual assault of a special needs student in a public school.
But those aren’t the only times Elliott showed her hand on public records.
In 2019, she also sponsored a state law, proposed by state Sen. Ben Hueso, that would have gutted the California Public Records Act, by making members of the public who request public records take additional steps before asking a court to intervene, and make it more difficult to collect attorney’s fees if agencies are found to have violated the law.
Backlash to the proposal was swift. Hueso pulled it before it received a single hearing.
About 101 Ash St., Though
Councilwoman Barbara Bry has been trying to make the debacle over 101 Ash St. a major issue in the mayor’s race for a year now. We thought it may go away with the existential crises civilization is facing, but it is definitely a story of City Hall management failure and massive waste of taxpayer funds.
It’s a bit hard to tell how it breaks down politically, though.
First the facts: There is one main takeaway from the reports this week. The city didn’t do a very good job vetting the purchase of this tall building Sempra had evacuated for its new shiny one by the ballpark.
The city has long had hundreds of employees working in buildings around downtown and other areas and this was a chance to get them in one place and eventually own the building and stop paying rent for them.
The report released this week made clear, and confirmed other reporting, that the city’s real estate assets department did not do any thorough inspection or appraisal of the building. Even a simple search would have discovered Sempra’s own public testimony about why it was leaving the building.
“In November 2014, Sempra real estate chief James Seifert testified to the California Public Utilities Commission that part of the reason they’d left 101 Ash St. when the lease expired was because the property needed at least $3 million in capital repairs to keep it operational and upwards of $15 million in the event of an earthquake. He said the building was functionally obsolete and ‘to remove the existing asbestos and rebuild the impacted space was estimated to cost $16 to $25 million.’”
The city ended up buying it on staff’s recommendation, though, that it only needed a power washing. The city ended up approving a $30 million remodel but then that got out of hand and now employees can’t work there because of the asbestos concerns.
That, more or less, is the scandal. But Mayor Kevin Faulconer is just months away from leaving office and is not on the ballot.
The politics: Bry points out that her rival in the mayor’s race, Assemblyman Todd Gloria, was the councilman who actually motioned to buy the building, back when he was on the Council. Gloria always responds that she approved the costly remodel. Marx broke down the debate between them in February.
It remains to be seen whether Bry can successfully make it a defining issue in the race. She is clearly willing to keep trying.
The Money Race
The deadlines for campaigns to report their donation totals this year have been really unaccommodating to the Politics Report’s own deadlines. Campaigns had until midnight Friday to get their disclosures in. So we will do our regular analysis next week.
Campaigns don’t have to wait until the last minute, though. And Bry did release her disclosure for money she brought in and spent from mid-February to the end of June. In that time, she raised $682,121. That includes a loan she gave to herself of $60,000. She also gave her campaign $20,000 (the loan she can recoup from future contributors).
So far, in 2020, she has contributed $210,000 to her campaign. She had $343,373 left to spend at the end of last month.
Gloria also released his fundraising report. He raised more than $289,000 in that period. He had $424,281 left to spend last month.
We’re very interested in this reporting period because of what it may say about how well or not campaigns were able to keep bringing in cash after the pandemic set in. Who knows … you may get fewer mailers!
The Deal Between the Teachers Union and the County’s Biggest School District
San Diego Unified School District’s teachers union – the San Diego Education Association – and district managers came to a tentative agreement for basic expectations for educators in the remote-learning environment.
The union stressed that it was tentative and its members still had not ratified the agreement as of Friday. But the district was very pleased with it and included this claim in its announcement of the deal:
“For students, the learning experience will feel similar, in many ways, to a traditional school year,” it read.
It is hard to imagine how it will feel, in any way, in even just one way, similar to a traditional school year.
What they seem to be getting at is that it will be shaped to more closely recreate a school day compared with the more chaotic experience of the initial weeks after schools shut down physical campuses.
Now, the deal with the union says teachers need to structure 360 minutes of work every day:
- 180 of that shall include “live online whole group and small group instruction.” Teachers will decide how to divide the time between groups and the whole class.
- 60 of the minutes “shall be dedicated to additional small group instruction, conferring with students, and/or teacher initiated office hours.”
- And 12 more minutes shall be “flex time and preparation time” while students work on their own.
Unstated of course is that for at least the younger kids, that means a parent or other guide will need to monitor all of it.
Bill Ponder, a retired academic who ran for school board, noted some things missing.
“I don’t see measurable benchmarks, monitoring of student performance or teacher accountability,” he said.
Union leaders sent over a statement: “This is not the district’s complete online learning plan. It will be used by the district to finalize their fall learning plan, which will be released on August 10.”
Coronado Might Sue, But Over What?
The city of Coronado last week retained a law firm to consider potential legal challenges, as the Coronado Eagle & Journal reported, against either the San Diego Association of Governments or the state’s Department of Housing and Community Development – it’s not clear which – over the number of homes the city must allow developers to potentially build over the next eight years.
Coronado Mayor Richard Bailey left a SANDAG board meeting last month in protest of the agency’s decision that the city must accommodate 3,873 homes, including 1,311 for very low-income residents, as part of a state law that has for decades failed to solve the state’s housing shortage.
The Coronado City Council could decide this month whether to pursue a legal challenge, and the best avenue to do so. But the letter Coronado sent SANDAG appealing its determination of how many homes the city is responsible for suggests one road it could consider.
The path: Sometimes, local governments are basically legislative bodies. City councils, for instance, are making legislative decisions when they adopt new policies that will apply broadly going forward.
Other times, they make quasi-judicial decisions, in legal jargon. By that, it means they’re being asked to determine how legislation applies in a specific case.
Here’s an example: When a property owner proposes a housing project that does not comply with a city’s existing development regulations, the city council makes a final determination whether to allow it. They’re sort of acting like a judge when they do so – rather than as lawmakers – and they need to ensure that the property owner receives a fair hearing.
This is why council members often say they cannot tell the public how they feel about a specific development proposal before the vote. If they did, they’d have to recuse themselves, because the property owner could allege the “judge” had made a determination before he went to “trial.” But when the city itself is proposing a new set of development restrictions in a neighborhood, council members can say whatever they want. In that case, they’re looking at adopting new policies, not applying old ones.
Why that matters: Coronado indicated in its appeal letter to SANDAG that the agency’s voting system – where each city representative’s vote is weighted by its population – is inappropriate for a quasi-judicial decision.
SANDAG had decided to impose on Coronado and other cities the housing need determination, with representatives from a handful of cities that represent more than half of the county‘s population using the weighted vote to do so. Coronado appealed its specific allocation. SANDAG rejected that appeal at the same time it finalized the countywide allocations. Coronado argued the agency’s decision to reject that appeal was “a quasi-judicial decision.” It then encouraged the agency to consider its policies and procedures “in light of constitutional requirements.”
“If the board does so in an unbiased fashion, it will conclude that the voting procedure that should be employed is the tally mechanism of one vote per city,” wrote Blair King, Coronado’s city manager. “Instead of a weighted vote, a simple majority should decide the appeals as a necessary procedural safeguard.”
There’s no specific argument for why a quasi-judicial hearing requires one voting process over another. But that’s the general argument. It’s not just that the weighted vote is bad – which many smaller cities have articulated loudly and clearly for a few years now – but that the weighted vote is inappropriate for quasi-judicial decisions.
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