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When former Councilman David Alvarez helped San Diego Gas & Electric push an energy infrastructure project in the city, he may have violated San Diego’s prohibition on elected officials influencing city decisions after leaving office.
Alvarez arranged and participated in a Nov. 12, 2019, meeting with former City Council President Georgette Gómez to discuss building an energy substation on the border of Barrio Logan and downtown, about one year after he left office. He and Gómez, longtime friends and political allies, are now running against each other in a special election for a state Assembly seat. The city never approved SDG&E’s substation project, and the utility is still actively searching for a location to build it.
Alvarez says he was working as part of a contract to do community engagement, not lobbying, and therefore isn’t in violation of the city’s Ethics Ordinance.
After leaving office, elected officials face a two-year “cooling off period” during which they cannot influence city officials over city decisions.
The meeting is listed in Gómez ’s official calendar, published in 2020 in response to a public records request. It lists a 30-minute meeting with “David Alvarez & SDG&E” related to building a substation across from the MTS building downtown. The calendar entry indicated that Marcus Bush, then a staffer in Gómez ’s office and now a National City councilman, attended the meeting as well. Bush confirmed to Voice of San Diego that he did.
In an email, Alvarez provided a letter he received from the Ethics Commission in the summer of 2019, outlining permissible contacts and interactions with city officials on behalf of his clients. He said the meeting followed the verbal and written advice he received from that office, which regulates the city’s ethics and lobbying ordinances.
“I consistently sought, received, and followed advice from the city’s Ethics Commission on how to conduct my business in full compliance with the Ethics Ordinance, and I have fully complied with all applicable laws and regulations,” Alvarez wrote to Voice in response to questions.
But it is not clear that Alvarez’s work on behalf of SDG& follows the detailed and technical advice included in the letter, written by former Ethics Commission executive director Stacey Fulhorst, or of the ordinance itself.
For one, it appears Sempra Energy, SDG&E’s parent company, disclosed the meeting in its quarterly lobbying report for the period during which the meeting occurred, suggesting the company considered the meeting a lobbying contact on a municipal decision, even if Alvarez says it wasn’t. The report indicates the company had one contact that included both Bush and Gómez, during which the company sought support for “regional infrastructure projects, operational maintenance projects, and energy programs; Infrastructure beautification at various city substations,” a vague description that could include the company’s pursuit of a substation near Barrio Logan.
In an email, SDG&E spokeswoman Helen Gao said she could not confirm that the lobbying disclosed in that report referred to the meeting with Bush, Gómez and Alvarez. In fact, she said she couldn’t confirm that the meeting occurred at all, in spite of it being included on Gómez ’s public calendar and recalled by Gómez, Alvarez and Bush.
“While we can confirm that SDG&E had met with then Councilmember Georgette Gómez at some point to discuss potential locations for a downtown substation, we are unable to confirm this particular meeting,” Gao wrote. “We are unable to confirm the meeting because the description in the quarterly report is pretty high level and given the generality of the description, that substation project may or may not have been discussed on that particular day.”
Alvarez argued that the meeting does not violate the ethics ordinance because “there was no municipal decision involved.”
But the city’s definition of a “municipal decision” includes any discretionary decision, not just decisions that go before the City Council. The only decisions exempted are those in which applicants are assured of city approval after demonstrating they followed a few basic guidelines, known as ministerial decisions.
However, in his email to Voice and in an email to Gómez ’s scheduler requesting the meeting, Alvarez stressed that the substation project was not subject to a City Council vote, meaning Gómez would not have a direct decision-making role on it.
“SDG&E is proactively engaging with the community to be responsive to their needs and our hope is that by the end of the month we will have some update of how those conversations are going so that we can inform (Council President) Gómez,” Alvarez wrote. “The City Council will not be making a decision on this issue, but it is still important for the Councilmember to know about this project given her role in the community.”
The city’s regulations, though, do not say that an official needs to have a direct say on a decision for a conversation with them on the topic to be prohibited. A fact sheet on the ordinance provided by the Ethics Commission, says “the ‘cooling off’ period applies to all municipal decisions.”
Fulhorst’s written guidance to Alvarez, provided in response to a series of detailed questions he asked her, says that he can meet with an official “to obtain – not transmit – information about the matter.”
By Alvarez’s own description, though, the purpose of the meeting was for him to transmit information about the matter – specifically, the results of the community engagement work that he was conducting.
Gil Cabrera, the former chair of the Ethics Commission and a lawyer who regularly advises and represents clients on compliance with the city’s ethics and lobbying ordinances, said Alvarez’s work for SDG&E and discussion with Gómez looks like a violation of the cooling off period restriction, because that regulation is intentionally broad. The cooling off period, he said, covers more contacts with city officials than are generally considered lobbying contacts that need to be disclosed.
Cabrera has donated to Gómez ’s Assembly campaign.
“One person’s community engagement is another person’s lobbying,” he said. “He’s saying he was just sharing what the community thinks, but lobbyists always say try to explain how they’re reacting to community concerns. You can’t just call it community engagement and make it OK. It certainly doesn’t feel like it’s complying with the spirit of the law, and I think it probably doesn’t follow the letter of the law either.”
Cabrera said Alvarez seems to be arguing that he was sharing the community’s feedback with Gómez because of her role in the community, even though she didn’t have vote on the project, and therefore that isn’t lobbying. The problem, he said, is that SDG&E seems to have treated it as a lobbying contact.
“What if he talks to her, and she goes and lobbies someone else? If so, she’s involved in the decision,” Cabrera said. “Do the rules contemplate lobbying someone who can influence the decision, but doesn’t actually make the decision? My gut is that if it’s someone who can influence the decision, that’s the kind of thing we don’t want you doing.”
It may come down to what was said at the meeting. Alvarez argues that he was gathering feedback from the community on potential locations for a substation, and that he was not contracted to lobby anyone. Gao said Alvarez never had a contract with SDG&E; rather, he was a subcontractor with another company that had a contract with the utility. She did not respond to a question on what company Alvarez subcontracted with, or the terms of that contract.
Bush had a general recollection of the meeting. He said Alvarez began the meeting by introducing Gómez to the two or three SDG&E representatives, and introduced the reason for the meeting and the general scope of the project. Then the SDG&E representatives took over, and explained that there were coverage gaps downtown, which was why SDG&E needed to build a new energy substation in the area.
He said Gómez pushed back on the representatives by asking why coverage gaps downtown required them to build a substation in Barrio Logan. Bush said she asked why it couldn’t be built on top of a downtown parking garage, if the substation was going to provide power to downtown residents.
“The meeting ended pretty awkwardly,” Bush said.
In a statement, Gómez said it seemed like Alvarez and the SDG&E representatives were lobbying her, but she opposed the idea of building a substation in Barrio Logan and said so.
Cabrera said it’s possible Alvarez could argue that he was simply paid to talk to the community and tell Gómez what they said.
“His point is, he’s not speaking for SDG&E, but I don’t know how you can separate that – everything he got was paid for by SDG&E. He can say, ‘they didn’t control how I got the information or what information I chose to convey.’ I don’t want to say it’s impossible for him to get there, but it would be a hyper-technical approach to what he said in the meeting. And, I assume that SDG&E’s position was consistent with the community input he provided. It would be weird if SDG&E said ‘it should be on this corner,’ and in the meeting David said ‘no, the community said it should be on this corner.’”
Sharon Spivak, the executive director of the Ethics Commission since late 2020, said she could not comment on any specific situation. In general, though, she said the point of post-employment restrictions is to reinforce the public’s trust in the integrity of local government.
“The lobbying laws are designed to let the public know who is influencing officials through paid lobbyists,” she said. “This is why we vigorously monitor and enforce the lobbying disclosures filed with the city.”
Gómez ’s Assembly campaign has pummeled her former friend and ally with attack ads over his work as a lobbyist after leaving office. Alvarez defended the work and said Gómez did the same.
“When we left public office, my opponent Georgette Gómez and I both started consulting businesses,” he said. “I had contracts with several businesses, nonprofits, and community partners, and Georgette had contracts too, including one with SANDAG supporting their draft regional plan and a proposal to charge drivers for every mile they drive.”
Violators of the city’s ethics ordinance can receive fines of up to $5,000 per violation, depending on the facts of the case.