City attorney Jan Goldsmith is asking the San Diego City Council for help in a lawsuit over his refusal to turn over private emails he sent to reporters and lobbyists from multiple email accounts. His case might be better if none of the emails discussed city business, but that is not the case.
However, because attorneys have already been retained by the city attorney, councilmembers will have little choice but to approve the contract.
Late last Friday, July 25, city-council president Todd Gloria, in charge of docketing agenda items, posted a supplemental agenda item for this Tuesday's council hearing.
"Declaring by the Council of the City of San Diego, that the Council grants City Attorney Jan I. Goldsmith’s defense request under Government Code Section 995, as statutorily required, to the civil action entitled San Diegans for Open Government v. Jan I. Goldsmith."
The request is a few weeks late. Goldsmith, with special authorization from chief operating officer Scott Chadwick, hired Jacqueline Vinaccia from law firm Lounsberry Ferguson Altona and Peak on June 26 to represent him in the lawsuit from San Diegans for Open Government.
But reporters weren't the only ones allowed unfettered access to Goldsmith. In fact, the city attorney made sure numerous people had access by using at least three private email accounts. According to emails released during the court case, lobbyists and others knew exactly which addresses to use when contacting the city attorney.
The emails date as far back as 2009. Examples include a lunch invitation that Neighborhood Market Association president Mark Arabo sent to two of Goldsmith's personal accounts "jgcityattorney" on Gmail and Yahoo. Around that same time, business-improvement district guru Marco Li Mandri requested a lunch date using the same email accounts.
Despite his frequent use of private email, Goldsmith denied San Diegans for Open Government attorney Cory Briggs’s request in a 2013 public records request. The refusal led to the current lawsuit, which in turn led to the hiring of the outside firm.
Shortly after being retained, Goldsmith's private attorney went on the attack. On July 10, Vinaccia sent an email to attorney Briggs demanding that he retract comments he made to the Reader, accusing the city attorney of misusing public money.
And then there's the issue of the Goldsmith's decision to hire Lounsberry Ferguson Altona and Peak without city-council approval. That decision, in fact, directly contradicts memos his office issued on the matter, intended on limiting hiring outside counsel.
The November 2009 legal opinion relied heavily on a 1977 opinion from former city attorney John Witt, who, strangely enough, happens to work as an attorney for Lounsberry Ferguson Altona and Peak.
The memo stated, in part, that the council has "limited authority" to hire outside attorneys and must occur only when there aren't any qualified attorneys at the city to handle the case. And while council has limited authority, according to the memo, the mayor has even less. The mayor can enter into outside contracts, including with attorneys, if the cost does not exceed $250,000 per year. Despite this, the city attorney went forward with retaining Vinaccia in a private lawsuit.
"I worry about possible violations of the Conflict of Interest law Section 1090," former city attorney Mike Aguirre told the Reader on July 14. "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."
Other potential issues have also been raised.
Currently, an attorney from Lounsberry Ferguson Altona and Peak is representing Suncoast Botanicals, which sued the city in 2013 for breach of contract.
Several attempts to contact the city attorney were made inquiring about the potential conflict of interest. The city attorney's office declined to comment on each occasion.
City councilmembers will discuss the item during the morning council session on July 29.