It was an open but mostly shut case from the beginning.
The proposed ballot measure — brought forth by councilmember David Alvarez; former councilmember now serving as president of the open-government advocacy group Californians Aware, Donna Frye; and the group’s lead counsel, Terry Francke — would have guaranteed public access to all emails, memos, and text messages from elected officials, making San Diego one of the most accessible and transparent cities in the state.
The measure was, for all intents and purposes, dead on arrival. And while the city council had the final say, Frye and others feel city attorney Jan Goldsmith was largely to blame for the ballot’s defeat. During the process, Goldsmith’s lawyers often refused to meet with the proponents to work through any outstanding issues. The office raised objections and threats of litigation to avoid placing it on the June 3 ballot.
“I don’t think there was a good faith commitment from the City Attorney’s Office to allow the ballot measure to move forward for voter consideration, and that is unfortunate for the citizens of San Diego,” said councilmember David Alvarez in a February 28 email, three days after the council rejected the proposal.
Alvarez, along with councilmember Marti Emerald, have since adopted a new tack. Instead of a ballot measure, they hope to amend the city charter to include many of the same changes proposed in the earlier initiative. It is unclear how the city attorney will respond. A council subcommittee is expected to discuss the item sometime before August.
Opposition to opening city government was anything but a surprise. “Open” and “transparent” aren’t words used often to describe city politics. Still, many observers were troubled by the fact that it is the city attorney’s office where the most recent attempts at closing off government have occurred. Since 2013, the former politician-turned-judge-turned–city attorney has been criticized for playing politics in what should be an apolitical office. And, he has been accused of failing to abide by California’s Public Records Act in two separate lawsuits.
During that time, Goldsmith has cozied up to reporters from U-T San Diego, sending tips from his private email address, suggesting edits to stories, and expediting public records requests. At one point, in what some say was an attempt to embarrass former mayor Bob Filner, he approved the same-day release of transcripts to a closed-session meeting.
New evidence obtained by the Reader shows that Goldsmith and his top attorneys denied requests from media outlets to see his correspondence with the same U-T reporters. In another instance, his office kept emails hidden.
The lawsuits in addition to other complaints were among the reasons Frye, Alvarez, and Californians Aware teamed up to bring forward the city-charter amendment.
“This is the city that I grew up in, live in, and one that I love and care about,” said Frye during a March interview. “This is also the city that has ignored and abused the public process. The public has a right to information about their city, and a right to expect that the processes they have set up for their government will be respected and followed. When they are not, it is almost impossible for me to sit back and remain silent, because the consequences of doing nothing means nothing will change and it will only get worse.”
Work toward the open-government initiative began in November 2013. Three months later, on January 15, the ballot measure was before the council committee on intergovernmental affairs.
Resistance from Goldsmith’s office was felt from the outset.
A January 14 report, delivered one day before the committee’s hearing, questioned the need for additional regulations. “[T]he Public Records Act already requires the City to ‘justify withholding any record by demonstrating that the records in question is exempt under express provisions…” Forcing new regulations, the report stated, could open the city to unnecessary and costly litigation.
In what appeared to be a victory for open-government advocates, on January 15 committee members forwarded the ballot measure to the city council for final approval and directed the city attorney’s office to work with Alvarez and Californians Aware to work out any kinks.
The victory was short-lived. Within eight days, Californians Aware had submitted two revisions but had received nothing from Goldsmith or his attorneys.
The first blow came on January 27, when Frye discovered the ballot measure did not make it on the council’s agenda along with the other measures discussed at the prior committee meeting.
During non-agenda public comment, Frye informed the council that Californians Aware was waiting for a response from Goldsmith’s office as to their January 20 and 23 revisions. She feared the city attorney was stalling in order to miss the deadline to put it on the ballot.
The ballot measure was then docketed for the February 10 meeting. Oddly enough, unlike the previous ballot measures, the item was listed as an “information” item only, meaning council was not allowed to act on the issue.
But from January 27 until the February 10 meeting, Goldsmith’s office did not respond to the suggested revisions, at least not until an hour before the council hearing began. Their response again raised the issue of potential litigation.
“It just got worse and worse, with a faction on the city council insisting that the city attorney must be satisfied and with that office raising the ‘invites litigation’ bogeyman at each opportunity,” recalled Francke from Californians Aware. “After repeated attempts to tamp down that concern with language changes and definition of terms, we finally ran into what seemed like a gratuitous stall pretext just to make the process miss the deadline for the June ballot.”
At the February 10 meeting, Frye’s frustration began to boil over. “This must be negotiated in good faith. Not games. Not delays. But to make sure that you understand that we want to make open government and open data something that this city can be proud of. We followed a process. We began this in November and we worked hard on it.”