Last Tuesday, July 29, San Diego City Council members retroactively approved city attorney Jan Goldsmith's decision to hire outside attorneys to represent him in a lawsuit. The lawsuit was filed after he refused to turn over emails he sent to reporters and lobbyists from one of three private email accounts. Councilmembers agreed to spend up to $150,000 for the legal defense, in addition to the hundreds of staff hours already spent on the case.
On Saturday, August 2, the attorney who filed the suit, Cory Briggs, offered Goldsmith, council president Todd Gloria (currently defending a similar lawsuit), and the city a way out. He will drop the lawsuits in exchange for four things: Goldsmith and Gloria must admit they were wrong to withhold emails from personal accounts about city business; change the municipal code so public-business communications such as emails kept on personal devices are considered public if they meet the threshold definition of “record”; and $100,000 in legal costs. The last stipulation is that city attorney Goldsmith retract statements he made to the U-T, which, according to Briggs, misrepresented his demands.
In the proposed settlement agreement, Briggs couldn't resist an opportunity to take a few swipes at Goldsmith.
"Mr. Goldsmith's office first claimed his communications with the media via personal e‐mail are outside the scope of his authority…. You can see on page 10 of the attached demurrer brief the following statement: 'THE PRIVATE EMAILS ARE NOT NECESSARY OR CONVENIENT TO THE DISCHARGE OF THE CITY ATTORNEY’S OFFICIAL DUTIES UNDER THE CITY CHARTER' (emphasis his). [San Diegans for Open Government] now possesses reams of e‐mails to/from Mr. Goldsmith’s private account concerning public business, which by his reasoning means that he has spent a lot of time doing something that is outside the scope of his legal authority as City Attorney. Again, these were his words, not mine.”
The revision to the municipal code would include "any record that is received, transmitted, or stored by a City official or employee on a device or equipment or in a medium or account that is not owned, operated, or controlled by the City."
As for attorney's fees, Briggs says he is asking for less than what San Diegans for Open Government are entitled to; simultaneously, the city is saved from having to pay the $150,000 to outside attorneys.
"[M]y client is willing to accept $100k to resolve all claims for fees and costs. The fees and costs incurred thus far by [my client] are well in excess of $150k and will continue to increase as the litigation continues; keep in mind that attorney fees are mandatory under the California Public Records Act. Thus, there is a settlement opportunity that will cost the City less than it is already willing to pay just to defend Mr. Goldsmith; rejecting it means you would risk losing both cases, spending the $150k you’ve approved for Mr. Goldsmith’s defense (probably more), and ultimately paying [my client's] fees and costs on top of it all."
The proviso for Goldsmith to retract statements he made to the U-T applies to an article published last week.
"In your July 31, 2014, article by Jeff McDonald entitled 'City to defend Goldsmith over records,' the following statement [by Jan Goldsmith] is attributed to me: '[Cory] Briggs filed an amended complaint seeking an injunction preventing me from communicating with the media and providing certain legal advice to the City Council. That is a ridiculous cause of action and the judge will be given an opportunity to dismiss it in late August, but as long as it remains pending, there is a likelihood that many city employees, including attorneys and others in my office, will become witnesses.’”
"In fact, no complaint filed by Mr. Briggs against the City of San Diego or me has ever sought an injunction to prevent me from communicating with themedia or providing legal advice to the City Council. The complaint he filed against me sought an injunction against illegal expenditures of public money, which I deny having made. I would appreciate it if you would print a correction of the statement about Mr. Briggs."
The city has until Friday, August 8, to agree to the terms or the lawsuits will continue.
Click here to read the entire settlement proposal.