Don Bauder 4:30 p.m., Dec. 9
City Attorney says Mayor's questions about port appointment process "lacks merit"
City Attorney says Mayor's reasons for vetoing council's appointments to port commission lacked legal footing
Mayor Bob Filner was wrong to say that the process of appointing commissioners to the Port commission was "flawed," states a memo from City Attorney Jan Goldsmith.
On January 18, Filner vetoed the council's decision to appoint Marshall Merrifield and Raphael Castellanos to fill the spots vacated by newly elected congressman Scott Peters and outgoing commissioner Lee Burdick. One reason for Finer's veto; the process was flawed because both appointments were approved by a single resolution.
City Attorney Jan Goldsmith refuted that point in his January 30 memo. Lumping the appointments into one action has been the standard process, historically speaking, wrote Goldsmith.
"The Council historically has voted to fill vacancies on the Port District Board as one action item. Consistent with this practice, the Council proceeded to make the appointments with one resolution used to fill the two vacancies. The two appointments to the Port District Board were joined together and noticed as one action on the Council’s docket."
Also consistent with past practice, this Office prepared one resolution to reflect the two appointments. The resolution was part of the backup materials provided to the Council and the public prior to the meeting. During the Council meeting, Council President Gloria confirmed that there was only one resolution for the two appointments."
The City Attorney didn't stop there. Goldsmith then wrote that the legislative body has the right to establish the procedure for appointments. The council, he writes, was only following the letter of the law as interpreted by the City Attorney's office.
"A legislative body’s actions are generally presumed to be valid. Municipal Law Handbook...The City Council is empowered to choose the rules it uses for its meetings. For the recent Port District Board appointments, the Council was provided with an interpretation of the amended Council Policy by the City Attorney’s Office, and also told it could waive the policy and adopt a procedure of its choice to fill the appointments...This choice was within the Council’s inherent powers, set forth in the City Charter and Municipal Code, to set its own rules for the conduct of its meetings. As a majority of the Council voted to choose a method to fill the appointments, it acted in accordance with its governing rules."
Driving his legal argument home, Goldsmith said Filner's questions about the process lacked "merit."
The council has thirty days, as of January 18, to reconsider the item and if they choose, vote to override the veto.
Read Goldsmith's opinion here.
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