City attorney Jan Goldsmith is spending taxpayer money on lawyers to represent him in a lawsuit from San Diegans for Open Government, which challenges his refusal to turn over private emails that he sent to reporters.
On July 10, the firm representing Goldsmith's office delivered a letter to the group's attorney, Cory Briggs, accusing him of defamation of character. The letter, written by Jacqueline Vinaccia, whose law firm Lounsberry Ferguson Altona and Peak also employs former city attorney John Witt, ordered Briggs to retract a July 7 statement he made to the Reader that questioned Goldsmith's decision on hiring an outside attorney without city-council approval.
"On July 7, 2014, the San Diego Reader published an article written by Dorian Hargrove that quoted you stating that the lawsuit that you filed on behalf of San Diegans for Open Government seeks 'return of public money that Goldsmith has illegally spent,'" Vinaccia wrote.
"This statement is a public accusation of the commission of a crime by Mr. Goldsmith and is defamatory. Mr. Goldsmith demands immediate retraction of the defamatory language in the article."
The demand fell on defiant ears.
"Tell your client to sue me if he thinks he has a defamation case against me," Briggs responded. "Just be sure he pays his attorneys with his own money this time, not with public money. He should also plan in such lawsuit to sit for a deposition about his expenditures of public funds, which not surprisingly he has refused to do in the taxpayer-waste case.
"I will be happy to accept service of process when I return to the country on July 28. If you need to serve me before then, my attorney, Marco Gonzalez, is authorized to accept on my behalf."
Briggs wasn't the only attorney to take a shot at Goldsmith.
Attorney Marco Gonzalez, who is representing Briggs while he is out of the country, also responded to Vinaccia's threat of a potential defamation lawsuit.
"...Mr. Goldsmith should not expect a retraction of the allegedly defamatory statement, immediately or otherwise. As noted, my office is more than happy to accept service of Mr. Goldsmith’s complaint should he desire to pursue a defamation action.
"However, as you must expect, should such action be brought we will immediately file a motion under California’s Anti-SLAPP statute, and Mr. Goldsmith will be personally responsible for paying attorneys’ fees when that motion is granted and the case is dismissed. Knowing [Goldsmith], I sincerely believe there will be nothing more painful to him than having to write me a check for a lawsuit he personally filed against [Briggs]. Have a close read of CCP 425.16 and Civil Code 47 and case law interpreting them, and I’m certain you will advise Mr. Goldsmith such action would indeed by unadvisable."
And while the exchange may amount to little more than legal gamesmanship, the city attorney's decision to hire a private attorney for what is a private matter, paid for by public money, without council approval, has drawn criticism and raises potential legal issues for the city.
"I was not aware the City Attorney hired outside counsel to represent him in the lawsuit over his use of private emails to communicate with reporters," reads a statement from councilmember David Alvarez. "I assumed outside attorneys paid for with tax dollars required council approval."
Former city attorney Mike Aguirre, whose client city auditor Eduardo Luna was denied reimbursement of legal funds he spent trying to stave off an investigation into his response of a workplace injury launched by then mayor Jerry Sanders, says there could be other legal ramifications.
"I worry about possible violations of the Conflict of Interest law Section 1090. Participating in the making of a contract for the use of city funds for a private litigation purpose may be found to transgress Government Code Section 1090’s prohibitions. I would urge the Mayor and City Attorney to proceed with caution."
According to a July 3 email from the city attorney's office, outside counsel was needed immediately.
"The Lounsbery law firm was retained on the Mayor’s office independent authority to contract pending City Council approval. There was not sufficient time to seek and obtain approval given the need to file an answer," wrote assistant city attorney Daniel Bamberg in a July 3 email.
A spokesperson for mayor Kevin Faulconer says the city attorney's office is now filing an official request to council.
"At this point, no contract with outside legal counsel exists until the City Council authorizes it," says Faulconer spokesperson Matt Awbry. "To date, what has occurred is that the Office of the Chief Operating Officer has identified a funding source. Should the City Council authorize the contract, the amount will be not-to-exceed $150,000."
In the past, Goldsmith relied on the use of private emails to communicate with reporters. As reported by the Reader, not only had he had dozens of communications with reporters from the U-T San Diego, he also offered his services to other outlets, such as 10News.
"I would like to periodically comment on the mayoral campaign as we get closer to the election. Would you folks have interest?" He asked senior investigative producer JW August in a September 14 email sent from his private Yahoo! account.
The city attorney's office has not yet commented on whether they plan to file a defamation lawsuit against Briggs. We are waiting to hear back on if the city attorney's office filed a formal request to the mayor's office for independent hiring authority.