by MARK GABRISH CONLAN
Copyright © 2016 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved
The four Democrats running for San Diego City Attorney in the June 7 election to replace termed-out incumbent Jan Goldsmith held a community forum Saturday, May 14 at the Thomas Jefferson College of Law in East Village. Though sparsely attended — representatives of the two organizations sponsoring the event, the San Diego County League of Women Voters and the progressive radio station KNSJ 89.1 FM, joked that they were competing with Billy Joel, who was giving a concert just a few blocks away in Petco Park — the forum included significant discussions about making the City Attorney’s office more accountable to San Diegans and more transparent in its decision-making processes.
The four candidates who appeared were Gil Cabrera, board member of the San Diego Convention Center and the San Diego LGBT Community Center; Rafael Castellanos, member of the Board of Commissioners of the San Diego Unified Port District and chair of the Port’s environmental review committee; Mara Elliott, current chief deputy city attorney and a lawyer with the City Attorney’s office for over 20 years; and Bryan Pease, local public-interest lawyer who represented Occupy San Diego in 2011 and has fought in court to preserve San Diegans’ right to free expression on both public streets and private spaces. The organizers advertised that all five candidates would attend, but Robert Hickey — a career prosecutor for the San Diego County District Attorney’s office for nearly 20 years and the only registered Republican in the race — didn’t show.
The event was moderated by Kay Ragan of the League of Women Voters, and featured questions from three progressive panelists — Marjorie Cohn, law professor and author, who teaches at Thomas Jefferson and helped arrange the venue; Martin Eder, executive director of Activist San Diego, KNSJ’s parent organization; and Anna Daniels of the online San Diego Free Press news site. A few questions also came from audience members, most of whom appeared to be either members of the sponsoring organizations or students at the law college. The event was being broadcast “live” by KNSJ, and Eder had wanted to set up a microphone so audience members could address the candidates — and radio listeners — directly. But Ragan said no; she explained that the League’s rules allow audience members to ask questions only in writing. “We don’t want someone getting up there and asking a 30-minute ‘question,’” she said.
According to the City of San Diego’s Web site, the San Diego City Attorney basically does three things. First, s/he is responsible for advising the Mayor, City Council and other city officials on whether what they want to do is legal and how they can enact public policy without violating the law. Second, s/he is responsible for prosecuting lawsuits filed by the city, and defending the city against suits filed by others. Third, the City Attorney is in charge of prosecuting all misdemeanor charges within San Diego, as well as Poway and any other San Diego County city that contracts with San Diego to provide this service. Felony charges are the responsibility of the San Diego County District Attorney’s office.
The meeting kicked off with questions instead of allowing the candidates the chance to make opening statements. Cohn’s first question was about the Brady rule, which requires that prosecutors make available to defense attorneys information that casts doubt on a defendant’s guilt. She phrased the query in a way that implied she didn’t think the City Attorney had always conscientiously followed the rule.
Pease, who answered first, called the allegations against city attorneys for not following the Brady rule are “part of a larger issue: people [at the City Attorney’s office] thinking their job is to win, instead of to seek justice.” Pease also used the question to reference his own history of fighting the city in court: “I am the only candidate who’s ever won criminal and civil cases against the City Attorney,” he boasted. “I’ve represented people arrested for registering voters” — a reference to former Congressional candidate Ray Lutz, who was taken into custody during the Occupy events in 2011 for signing up people to vote at the Civic Center Plaza where the Occupiers were camped.
Elliott said she thought the problem was that the current City Attorney isn’t educating the prosecutors on his staff well enough. She pledged to “reinstate the training our office used to have.”
Rafael Castellanos said the problem was that it’s become too hard for defense lawyers to get appointments with the deputy city attorneys who are going to prosecute their clients. “Failure to comply with a basic obligation to provide exculpatory evidence is serious,” he said.
“I’ve represented indigent defendants,” said Gil Cabrera. “Brady is fundamental to justice. The ultimate job of a prosecutor is to seek justice, not to win convictions. In a lot of cases, you have silly fights over the facts. The facts are what they are.”
Cohn’s question set the tone for the evening. Again and again, she, Eder and Daniels asked questions that suggested the current City Attorney — and, they sometimes hinted, many of his predecessors as well — have sucked up to powerful interests in the city and come down hard on poor people, progressive activists and others considered less desirable by San Diego’s elites. The questioners seemed to be arguing that the current City Attorney has all too often given the Mayor and City Council the legal advice they wanted rather than what they needed, and has seen his job more as figuring out how the rest of city government can skirt — or sometimes outright break — the law, instead of being honest about the legal issues raised by what they want to do.
Civic San Diego
One of the toughest questions of the night came from Anna Daniels and concerned Civic San Diego, the agency formed by the San Diego City Council in 2013 to take over the functions of the former Centre City Development Corporation (CCDC). From 1960 until Jerry Brown took over as governor of California for the second time in 2013, California cities could form so-called “redevelopment agencies” to take over “blighted” portions of their cities. The agencies could seize private property in the “blighted” areas, make loans to private developers to build new projects there, and pay back the loans through what was called “tax-increment financing.” That meant that instead of having to give back the extra property tax money being generated by the redeveloped properties, because they were now worth more than they had been, the redevelopment agency could keep it until the loans were paid off.
Critics of redevelopment argued that in practice it turned into a sort of Robin Hood-in-reverse scheme in which private developers lobbied the city to take over and “redevelop” areas that weren’t blighted at all, then use the city’s power of eminent domain to kick out the current property owners and give the land to them for big projects. San Diego’s downtown redevelopment agency, the Centre City Development Corporation (CCDC), was one of the ones most criticized for this. Redevelopment opponents also argued that agencies like CCDC essentially ran themselves as Ponzi schemes, constantly looking for new areas to redevelop so they could keep collecting the tax increments instead of giving them back to the city’s general fund once the original loans were repaid.
What’s more, though the law required that a certain percentage of housing units built in redeveloping areas be “affordable,” San Diego was often accused of violating the spirit of that requirement. Critics said agencies like CCDC evaded the affordable-housing rule either by defining “affordable” in a way that the units were still too expensive for low-income people, or by the city allowing developers to pay so-called “in-lieu” fees, which would supposedly be used to build affordable units in other parts of town so developers wouldn’t have to put affordable units in otherwise market-rate projects.
In 2013 Governor Brown responded to these criticisms and got a law through the California legislature ending redevelopment and the tax-increment scheme that had financed it. The bill allowed California cities to set up “successor agencies” that could continue the work of the redevelopment agencies they replaced, but only to finish projects currently in progress and pay off the loans from them. Instead, San Diego’s city government replaced CCDC with a new entity called Civic San Diego, a private corporation whose board was appointed by the Mayor and City Council but wasn’t covered by the laws that say government agencies have to do their business in open, public meetings.
Critics argued that the city went so far in setting up Civic San Diego that they gave it broad authority to approve development projects and make land-use decisions that under California law should be made by the elected city government. The city is currently fighting a lawsuit that alleges Civic San Diego is operating illegally. The new City Attorney will be required to defend the city in that litigation and possibly settle the case.
Pease made it clear that he agrees with the critics of Civic San Diego. “It’s totally illegal,” he said. “Civic San Diego is a private organization that has been delegated legislative authority by the City Council. The lawsuit is absolutely correct. This is a totally illegal abrogation of legislative authority. That’s how development decisions are made downtown. We’re the only one of 65.000 cities in California that lets a private organization make these decisions. And it’s the same power brokers who had so much control under redevelopment.” He also called Civic San Diego “a black box” and said no one outside Civic San Diego knows how it makes its decisions.
Elliott said she has two concerns about Civic San Diego: “operating in a transparent manner, so people know exactly where the money is going, and ensuring that we have the right people around the table. I think we should re-analyze the memo [from the current City Attorney] that authorized Civic San Diego. The area served by Civic San Diego is very small. Not all the areas of the city are getting that special treatment. Labor has not been included in those conversations, and I think they’re a very important voice in the development of downtown. They’ve been excluded.”
“I agree that there needs to be more transparency, oversight and accountability,” said Castellanos. “Even the memo Jan Goldsmith’s office prepared indicates all those things, and also indicates that a number of reforms need to be implement if you’re going to keep it the way it is. Now, the whole intention was to try to streamline development downtown, and to a large extent it has accomplished that. What it hasn’t done is mitigated potential conflicts or increased transparency. But if you’re going to reform Civic San Diego, or do away with it entirely, the city itself needs to be capable of accomplishing the policies that were already approved. And currently, unfortunately, [the city’s Department of] Development Services is incapable of doing so.”
“The current memo on this is a classic Jan Goldsmith memo that says it’s sort-of O.K.,” said Cabrera. “It’s the swishiest memo you can imagine: ‘There’s issues, but it’s probably O.K.’ The conceit of Civic San Diego is that the city can’t do its fundamental job. And expanding it [to cover other areas of San Diego], as has been proposed, is an acknowledgment that the city can’t do its fundamental job anywhere. Civic San Diego shouldn’t be there. The city should be doing its job, and as the City Attorney, I will bring resources to bear to help the city figure out how to do its job so we don’t need Civic San Diego.”
Targeting Homeless People
Another question from Daniels concerned the city’s treatment of homeless people. “The city has taken aggressive action to keep homeless people from getting shelter,” she alleged. In addition to shutting down the city’s annual winter shelter, critics allege, the current administration of Mayor Kevin Faulconer has allowed police to seize homeless people’s belongings and harass them to get them to move around town. What’s more, the city recently authorized placement of a so-called “rock garden” under an overpass in Sherman Heights and acknowledged it was put there to keep homeless people from sleeping under the bridge.
“One of the first things I did at the Port of San Diego was issue a declaration that homeless people have civil rights,” said Castellanos. “I think [the way San Diego treats its homeless people] is a disgrace. I would be a very vocal spokesperson for the rights of homeless people. Moving people around and taking their possessions is a crime. One hundred people have died as a result.”
Cabrera said one of the recommendations he made as a Convention Center board member was increasing the number of Homeless Response Teams (HOT’s) and Psychological Response Teams. These combine police officers, social workers and, when available, trained therapists to try to get homeless people off the streets and into services where they can deal with mental illness, alcohol or drug abuse, or other issues that may be keeping them from getting off the streets. “The City Attorney needs to recognize that these people are human beings,” he said. “We need to make sure the city doesn’t treat them as criminals.”
“As City Attorney, I will inform the Mayor and police chief that it is illegal to take homeless people’s possessions and put rocks up so they can’t sleep under bridges,” said Pease. “We have a homeless problem because developers are evading their responsibility to build low-income housing.”
“I see the homeless as one of our most voiceless populations,” said Elliott. “We need someone in government who can be a spokesperson.” Like Cabrera, she said that homeless people need help dealing with mental-health and substance-abuse issues, and the city should do what it can to provide it.
New Chargers’ Stadium
The candidates also got asked about the City Attorney’s role in the San Diego Chargers’ demand for a new football stadium downtown to be paid for by an increase in the Transit Occupancy Tax (TOT) paid by people who stay in San Diego hotels. The candidates present at the May 14 forum all seemed skeptical about the plan and whether a new stadium would be good for San Diego economically. They also used it to discuss a previous effort by the hotel owners to assess themselves and charge a private add-on to the TOT to market San Diego as a tourist destination and fund a plan to expand the San Diego Convention Center — a plan that’s already been declared illegal by a judge, who ruled that the money collected from that tax can’t be spent until the case is completed.
Cabrera conceded that the City Attorney “should not be driving policy whether to build a stadium,” but he was committed to being “the last line of defense for the taxpayers” in any stadium financing scheme. He also made it clear that his personal opinion is stadia are money-losers for the cities that build them. “According to an article in the Atlantic, the number of NFL stadium deals that have been good for taxpayers is ‘zero,’” he said.
“I said the hotel tax deal was illegal,” Pease commented. “The city is now years behind on expanding the Convention Center. The city is leaving money on the table. I’d like to see the TOT raised and the money go to the city’s general fund.”
Like Cabrera, Elliott said, “Our job is to get the best deal for the taxpayers. We have had bad deals in the past, like the Chargers’ ticket guarantee [by which the city agreed to pay for however many Chargers’ tickets the team didn’t sell]. We can give the decision-makers all the information, but we can’t stop a bad deal unless there’s a legal issue.”
“We’ve had a lack of experience at the City Attorney’s office in development and land-use issues, and that’s my area of expertise,” said Castellanos. “The city has been asleep at the wheel on these deals.”
Unequal Law Enforcement
A question from Martin Eder raised what he called the “national soul-searching” that resulted from the shooting of Michael Brown in Ferguson, Missouri two years ago and the other cases of unarmed African-Americans being shot and killed by police. But Eder claimed that there are other, less extreme but more constant ways police in San Diego and elsewhere go after people of color and low-income people than by shooting them. Among them, he said, are unequal enforcement of traffic laws, including parking fees, which led him to suspect the city is balancing its budget on the backs of poor people. He said this had happened to him personally: “When I moved to City Heights, I got hundreds of dollars’ worth of parking tickets — including a $65 ticket for parking in front of my own driveway — and towing fees I’d never experienced in other parts of San Diego.” He asked the candidates what they would do to make enforcement more equal throughout the city.
“I actually worked on this issue in the city of Escondido a number of years ago, when I was the president of La Raza Lawyers,” said Castellanos. “The Escondido Police Department was setting up these ‘sobriety checkpoints’ around schools in the morning, that were actually immigration sweeps. They were ticketing folks and they had an ICE [Immigration and Customs Enforcement] officer inside the police department. They were impounding vehicles, separating families, and filling the city coffers on the backs of these individuals. An ACLU report was issued as a result of our work, and there was a state audit that was threatened and that exposed corruption. That will not occur in the city of San Diego if I am City Attorney.”
“I dealt with this as a judge pro tem when people were coming up with fines they couldn’t pay, and I have reduced these fines where appropriate,” said Cabrera. “As a city, we should report on where those tickets are being issued and where the money is going. Transparency is the best solution.”
“Excessive parking tickets and towing fees are a tax on the poor,” said Pease. “A former San Diego police officer is suing the city and alleging he was told to be aggressive in City Heights and Ocean Beach, and be easier in Rancho Bernardo.”
“It’s important to me that our office is perceived as being independent and following the laws,” said Elliott. “We need people in the neighborhoods to help us figure out where the problems are and where the violations are occurring. As the City Attorney, I would work to make sure we operate in a fair manner and don’t discriminate.”
The candidates were also asked about the city’s attempts to limit public protests to specific times and places, and ban free-speech actions outside those officially approved venues. “I’m not sure I really like that idea,” said Elliott. “Most of us would like to express ourselves, and that seems like an overreach by government.”
“I would be willing to brief the city on the Constitution,” said Castellanos.
“I would not be doing that,” said Cabrera. “The concept of doing that ahead of time is silly and takes the city’s reasonable time-and-place power beyond the pale.”
“I’ve represented people who’ve been arrested for passing out flyers on public property and, in one case, for registering people to vote,” said Pease. “As long as you’re not blocking ingress or egress, you have a right to be politically active in places like public sidewalks or Civic Center Plaza.”
San Diego City Attorney job description: https://www.sandiego.gov/cityattorney/role
Gil Cabrera: http://gilcabrera.com/#sthash.x08ffMFP.dpbs
Rafael Castellanos: http://www.rafaelforsandiego.com/meet-rafael/
Mara Elliott: http://www.maraelliott.com/
Robert Hickey: http://www.hickeyforcityattorney.com/about-robert/
Bryan Pease: http://bryanpeaselaw.com/about.html