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Bruce Henderson— stadium prophet

The most hated man in San Diego

Bruce Henderson: "I’ve had councilmembers rise up out of their chairs, screaming at me at the top of their voice." - Image by Joe Klein
Bruce Henderson: "I’ve had councilmembers rise up out of their chairs, screaming at me at the top of their voice."

Two years ago this December, Bruce Henderson, Richard Rider, and Steven Green went to court to answer a so-called “validation suit” filed by the city of San Diego. What the city council thought would be a pro forma legal action to clear the way for expansion of the stadium turned into an epic battle over whether San Diego voters had the right to decide the fate of the multimillion-dollar construction project and its accompanying 60,000-seat guarantee for the Chargers. Two court fights and a referendum signature drive later, the city council prevailed and the Chargers deal was done. Late last week, in light of the Chargers’ disastrous home season opener and its television blackout, Henderson was asked to look back on the fight over the stadium and what lessons it may hold for the city’s future.

Charger fans, August 9, 1997

Q. It seems as though all of your predictions of gloom and doom on this thing are coming true.

A. Well, certainly we have a wake-up call. We, and when I say “we,” I’m talking about tens of thousands of people who signed the referendum petition and said, we’re concerned about the stadium expansion, and |we’d] like to vote on it. When you went out to talk to people, they were upset about the idea of a cost-plus contract for the Chargers. During times of war, the government enters into a cost-plus contract, or if you have an earthquake and you want to rebuild a freeway, you enter into a cost-plus contract with somebody. But to enter into a cost-plus contract where you guarantee the sale of football tickets for ten seasons at any price the team puts on the tickets is something the public doesn’t agree with.

Golding, Alex Spanos, Dean Spanos, Paul Tagliabue. "Unless they’re fools, the Spanos family is going to start shopping this team in 2003."

They tried to issue a wake-up call to the city council, to say, just step back, put this on the ballot, let’s renegotiate this deal. There’s a problem here. And to a person, the members of the San Diego City Council said, “Buzz off. Buzz off. We’re in complete control. You’ve elected us to make these decisions, and we’re not interested, having been elected, in hearing your opinions on this, and we don't think your concerns are worth our attention.”

First home game with expanded seating (Sept. 14, 1997); attendance deficit led to TV blackout.

In the last nine or ten months — they signed the deal with the Chargers about two and a half years ago, and we did our referendum last December — the city council has done absolutely nothing to make any inquiry of the Chargers or the manager’s office or this Sports Council that we hear about but can’t quite figure out what its role is. They’ve made no inquiry of the most simple sort, just saying, “What sort of marketing program do you have, what are you doing to minimize the city’s exposure?” Nothing.

Barbara Warden, Valerie Stallings. Stallings celebrated that the people didn’t get to vote on it.

Q. What are the key issues?

A. There are three key issues here when you’re looking at this subject, that is, the City of San Diego’s relationship with the San Diego Chargers. Number one: This is not an infant industry; this is an industry that is making hundreds of millions of dollars, billions of dollars, off TV revenues alone. This isn’t a business that requires public subsidy to make a profit. Pure and simple.

John Witt, Jack McGrory, Harry Mathis. "McGrory went to the council and they told him, 'Roll the bulldozers.'"

So the first issue is, should the City of San Diego be building facilities for a professional football team? And bound up in that issue is the fact — obvious to anyone who attends one of these games — that it is very expensive to go to a football game. This isn’t like building Mission Bay, where access is essentially free. If you can afford the price of the gas, you can drive your family up to Mission Bay and have a wonderful time there, have a picnic, and you don’t have to spend any more money, you don’t have to pay anything to anybody, and you can use that facility free. That’s what a public facility is all about.

But the stadium and the Chargers have quite a different relationship with people in this city. There, you go to the game, it’s a stadium you paid for, you underwrote, and the ticket prices and the cost of some food — and by the way, you’re not even permitted to bring food in; they actually search your bags to make sure you don’t bring anything in that they can sell to you — the bottom line is that it’s become so expensive to go to a football game that very few San Diegans can afford to do that. That’s why ticket sales are so low and we are so concerned about these guarantees.

The guarantee creates this perverse economic relationship in which the Chargers can continue to raise ticket prices as they claim they need more and more money to pay football players higher and higher salaries and because they have, you know, more and more corporate jets to fly their executives around the country because they’re engaged in all these big-league business deals. They keep raising the prices, and we guarantee them, and fewer and fewer San Diegans can afford to go. So the first issue is, should we, as a local government, be building a facility for a professional football team? The answer to that, I think, is quite clear: no.

That’s why the city council was so desperate that this item not go on the ballot, because they knew there wasn’t a chance of it passing in San Diego. San Diegans think the money ought to be going into a lot of other things, but certainly not an expanded football stadium for the Chargers. That raises the second issue.

Back in the 1960s when we built this stadium and then added on to it, we created a stadium that was optimized for football and baseball, both together. It wasn’t perfect for each, but it accommodated both professional football and professional baseball, and the Chargers and the Padres were pretty happy at Jack Murphy Stadium, although there were always problems in accommodating the two schedules.

Well, now the city council has altered the design of the stadium to idealize it for football — at least that’s the report, and that’s how it appears. They did that full knowing that they didn’t have an agreement with the Padres, creating a situation where the Padres either have to play in a stadium that’s been idealized for ftxrtball as opposed to baseball, or they ask for a brand-new stadium, under circumstances in which it’s unlikely the public’s willing to grant that request. Therefore. the council, by doing what they did for the Spanos family, has jeopardized the continuing presence in San Diego of the Padres, so that’s issue number two.

Issue number three is that the city council, in 1995, entered into its agreement with the Chargers that apparently was not reviewed by the San Diego City Attorney’s office. The city attorney is a separately elected official in the City of San Diego, in order that the city attorney have considerable independence and oversight of the legality of any deals the city gets into. But somehow the politics of this were worked in such a way that the city attorney’s office was not substantively involved in this contract, and I think any contract attorney who reads the contract will see that no one really bargained on behalf of the city’s best interest in connection with this agreement.

Apparently a document that was drafted by the Chargers’ attorney was accepted as is, and the question is, how could that have happened? It doesn’t make sense. Former City Attorney John Witt published a long essay about this and how disappointed he was about the terms of this contract. He said something to the effect that he wasn’t in on the drafting of it. Somehow he had been left out of the loop, and maybe somebody in his office had been involved, but that person in his office never came forward and explained his involvement, so there’s truly a mystery there.

Q. There's been a lot of controversy about who is supposed to sell the tickets. The mayor says it’s the team's responsibility, but the contract with the city says the city guarantees that the seats be sold or the city makes up the difference. What’s your take on that?

A. The ticket guarantee essentially says that we guarantee that 60,000 general admission tickets will be sold for each game for ten games a season for ten years. So that’s a lot of tickets. That’s six million tickets. If you assume that the average price over ten years for tickets at about $50, counting in inflation — it’s rfow about $40 for the Chargers — that’s a $300 million liability that the city took on. A tremendous liability. Plus the liability under the bonds, which are about $200 million. So that’s about a $500 million liability that the city assumed.

That brings us to the next issue. Having assumed that liability, the city council provided over the last two and a half years no oversight over the liability. So far as I know — and we’re making inquiry now to find out exactly what occurred — the city council never requested the manager’s office to come to them and report to them about ticket sales; never required the city manager or the Chargers to ever indicate what marketing plan was in place; never asked about what contingencies might be developed; never requested that [because the city was going to buy all the tickets anyway] the Chargers and the NFL agree first that there never be a blackout at any guaranteed game, so that San Diegans who couldn’t afford these tickets — because the Chargers are encouraged to put any price they wish on them — could watch the game at home and maximize the involvement of the Chargers in the San Diego community. After all, if we’re going to pay for all of this, the team better play a major role in our lives. The long and short of it is, it wasn’t an oversight on the part of the city council, it was absolute silence.

Q. The mayor is quoted as saying that it is her belief that the city doesn't have any role.

A. It could be true that the city doesn’t have any role other than to write a check if tickets don’t sell. But that is narrowly focused on the question of. Does the city have a duty or a role in selling the tickets? That has nothing to do with oversight. The reason we elect a city council is to provide oversight. That is its fundamental job. If you look at the city motto, it’s “Ever Vigilant.” The whole idea is that you elect nine people, pay them lots of money — councilpeople get the equivalent of about, with their benefits, $70,(XX) per year. The mayor gets $80,000, and they have a staff and overhead support of at least $500,000 each, the mayor $1 million or more, so they’ve got lots of staff — and they’ve got the wherewithal to do exactly what they’re supposed to do.

They’re supposed to provide oversight and make policy decisions. In this case, oversight means that you make sure that there’s a plan in place, whether it’s a city plan or the Chargers’ plan, to sell those tickets so that you minimize the chance that there’s any liability in regards to that ticket guarantee. No such oversight was provided by the city cou n -cil, so far as we can tell by the record.

Q. Doesn't the contract with the Chargers spell out who is to do what with respect to selling the tickets?

A. There are two statements in the contract with the Chargers. One is that the Chargers will make their "best efforts” to fill the stadium. “Best efforts.” So far as I know, no one in the city attorney’s office or the city council has ever tried to figure out what that means. We’re asking that question right now, to find out whether anybody’s looked at that question.

That’s part of the oversight issue, and the profound failure on the part of the council to provide oversight on this issue. The second provision of the contract is quite interesting. It has to do with the ticket guarantee. At the very end of the provision on the ticket guarantee, where it says that the city will guarantee the sale of six million tickets over ten seasons at any price the Chargers puts on them, the city makes reference to the fact that it’s relying on the San Diego International Sports Council to fulfill that obligation, but the agreement goes on to say that although the Chargers recognize that it’s the Sports Council that’s going to guarantee those ticket sales, ultimately it’s the city who is on the hook. That’s another thing we’re making an inquiry about.

When you go back to the city manager’s report, on May 10 of 1995, 15 days before the council voted for the agreement with the Chargers, the manager’s report says that there is an agreement with the Sports Council to guarantee the sale of the tickets, those six million tickets. At least guarantee the sale, to write the check if the sale doesn’t occur.

There is no record, as far as we can tell, of any request by the city council to see any documentation of this relationship with the Sports Council, any indication that the city council ever asked if the Sports Council has the financial wherewithal to guarantee $300 million worth of ticket sales. Any evidence that the city council ever, in the last two and a half years, asked for a report from the Sports Council on how things were going.

In fact, there’s no evidence that the Sports Council even knows that they’re responsible for these sales, as the city manager and the city has asserted. This is one of the reasons that I filed a formal request with a San Diego County Grand Jury to do an investigation. What’s going on here? Who is providing oversight?

Q. Is it possible to point the finger specifically at anybody — McGrory, Golding, the council?

A. You always have to point your finger at the city council; they arc ultimately in control; they hire and fire the city manager. And they like to point the finger at the city manager. If they ask the manager, for example, to give a report on how ticket sales are going or a report on the ability of the Sports Council to fulfill its obligation to guarantee the sale ofithese tickets, and give us a copy of any agreement with the Sports Council, and the manager doesn’t do that or makes mistakes on the report, then they can point a finger.

But if the council never asks the question, the council sends a clear message to the manager that they don’t want to know. Just like the mystery of whether the city attorney was ever involved in the negotiating. The city attorney is separately elected, and it’s pretty shocking to hear the city attorney say he was cut out of the process, even if somebody in his office was doing “something.”

So, it’s the city council, and the two people on the city council who are especially responsible... for one, the mayor. She was very involved with Mr. Spanos; the record of that is quite clear. Mr. Spanos was very helpful, I understand, with the Republican Convention, and the question is, did the mayor do him a favor and get him a contract that essentially cut out the Padres and created this unprecedented cost-plus contract? But she’s only one vote.

Q. Didn’t then-City Attorney John Witt later claim that the mayor and Mc-Crory were in charge of negotiations?

A. Yeah, he claims that she actually had all these ex parte contacts and other councilmembers. Harry Mathis in particular claims he was involved in negotiations, which raises some other issues about ex parte contacts and what went on here.

Q. What do you mean by ex parte contacts?

A. That means that there were contacts outside of noticed council meetings. We have in California what is called the Brown Act, which codifies the rule that council people shouldn’t do council business with specific individuals except in a public meeting that’s been duly noticed, so that you can see what they’re saying, what agreements are being made, what the negotiations are.

The question here is, what were councilmembers doing in private negotiating aspects of this contract outside public meetings? Were there violations of law? That’s something the grand jury needs to look into.

The other person on the council, interestingly enough, who has particular responsibility, is the councilmember who has for years served on the Stadium Authority. That councilperson is Valerie Stallings. She has served on that committee, as far as I know, since 1991, so her colleagues on the city council would look to her for leadership, she and the mayor. One of the things we’re making inquiry of Stallings’s office is, What warnings did you provide your council colleagues? What concerns did you express? What oversight did you provide, because you were specifically delegated with the authority to provide the oversight over this Chargers’ agreement? Did you do that? What relationship do you have with the Sports Council? Did you look into this agreement? What did you ask from the manager in the way of reports? What reports did you issue to your council colleagues? Those are all questions that we need to have answers to and the grand jury should look into.

Q. The record shows that Stallings voted against the various aspects of the project, and the other day she maintained, in a U-T interview, that she had these fears about problems with the Chargers all along.

A. She definitely voted against the Chargers’ agreement, and that put her in an excellent position to criticize. But so far as we can tell — and I’m talking about hundreds of thousands of people who have been trying to follow this issue, and many of us have tried to look at the record — she never articulated any of the problems, beyond her concern that expansion of the stadium would increase traffic.

She has said she’s had many concerns. I don’t see how any knowledgeable human being could fail to have many concerns. We went down and had many public meetings with the council, where we alerted them to many concerns, so she should have, if she was listening, had many concerns. Her job, very specifically as the council representative to the Stadium Authority, was to bring those concerns to the council, to alert them to the problem, and take steps to address her concerns.

We’re trying to find out what she did; as far as we know, she didn’t do anything. And that’s another question; why did she remain silent? Maybe what we need to do is to look at her campaign contribution list and find out why she remained silent, because there are only two possible reasons why she would remain silent. One is because she made some sort of promise to campaign contributors that she wouldn’t involve herself in this, just keep her mouth shut while we went down this path to disaster. Or she wasn’t doing her job — utter, complete malfeasance and dereliction of duty. I don’t know which, maybe a little of both.

Q. You mentioned the Brown Act. Wasn't there an issue where the council held many closed-session meetings on this issue, and they gave the reason because there was the litigation pending?

A. There were a variety of meetings that the council held concerning negotiations on the Chargers’ contract and subsequent issues regarding the Chargers’ contract, and the Brown Act does allow for closed meetings.

The real question is, did individual councilmembcrs engage in negotiation outside noticed meetings? It’s hard to find out what happens in closed session, but ultimately the Brown Act says you’re to come forward after the closed meeting and explain what happened.

Councilmembers don’t tend to provide very much detail about what happened. It’s a different issue whether or not you have meetings or negotiating sessions outside that. That’s something only the grand jury can look into.

Q. What about the role of the local judiciary in all of this? There were two San Diego superior court judges that ruled on these stadium issues, one in the validation case and the second one in the referendum case, and both ruled against you and let the project and the deal with the Chargers proceed. Were they mistaken?

A. Well, we wouldn’t have gone to court if we hadn’t believed that the judiciary had an opportunity to step in and look at some very important issues here, whether or not these sorts of long-term liabilities — like the ticket guarantee, which is a ten-year liability, potentially costing $300 million, depending on how the Chargers price the tickets — should have gone on the ballot.

The point is that there is a long-term liability there, and the city charter and the state constitution are both clear that if there are multiyear liabilities, the people are supposed to vote. The judiciary could have stepped in and looked carefully at this. The supreme court has said over the years that the superior courts are supposed to make the best effort to protect the people’s right to vote, and unfortunately the two judges we encountered here in San Diego didn’t find any means that made them comfortable to do that.

Two things, however, happened in connection with the lawsuit that we brought on the stadium construction that were particularly disappointing. One of those things had to do with the judge. We had argued certain points; we’d argued point A, and the city had argued point Z. We were pretty far apart in our two arguments. We walk into court the day of the hearing on February 20, and without any notice to us and without any opportunity for us to respond, the judge makes argument M, right in the middle. A different argument than we’d ever made, a different argument than the city had made. We never had any chance to respond to that.

Q. Why didn't you appeal the ruling, then?

A. We did have a right under the law to appeal that ruling. The problem we had was that Qualcomm had come into the city and offered $18 million for naming rights to Jack Murphy Stadium. Qualcomm made that $18 million payment to the city conditioned upon the fact that I not appeal Judge Anthony Joseph’s opinion. The agreement between Qualcomm and the city said very specifically that if Bruce Henderson appeals Judge Joseph’s decision, and the stadium goes on the ballot, we’ll take the $18 million away. The implication was that Bruce Henderson would be responsible for the loss of that $18 million plus the interest. As a practical matter, it was impossible to fight that kind of pressure, and I don't think that is a sign of good citizenship on Qualcomm’s part. I’m very critical of Qualcomm because of that.

Q. From Qualcomm’s standpoint wouldn't that be a sensible condition, though?

A. I can understand why they did it; I don’t think it’s indicative of an A-plus in citizenship. The people’s right to vote is the most important issue of all in a democracy. For them to put this gigantic barrier in the way of my trying to enforce the people’s right to vote... I mean, after all, I had gone out and gotten 60,000 signatures of people saying they wanted to vote on this deal, and that’s why we were in court, in part.

Q. From the city council's point of view, didn't the Chargers' threat to leave town also play a role in the decision not to put the stadium issue on the ballot? That and the desire to host the Super Bowl here?

A. The Chargers were saying they were going to leave, but the truth was that we had an agreement with the Chargers until the year 2003. The Chargers were already here until 2003, so we had a lot of time to negotiate a settlement with the Chargers. The other thing as far as the Super Bowl goes is that the last time we did a Super Bowl, we put in temporary seating, and this time the NFL said we could put in temporary seating again, so it isn’t as though we couldn’t have handled the Super Bowl absent of the city tearing down the stadium.

Q. Still, the Chargers were threatening to leave town if the stadium wasn't done on time, and the city had already rolled the bulldozers.

A. That goes back to the fact that...a couple of things precipitated all of this. One was that not only did the city enter into an agreement with the Chargers, but then they went out and tried to issue the bonds to build the stadium improvements without a vote of the people. That was to be the first time in the history of this city that stadium improvements would be built without the people’s vote. A number of us, Dick Rider and I, stepped in and said we don’t think that should happen, we think the people should have a vote on this.

We lost in court; the supreme court refused to consider that particular case. Nevertheless, it was the council’s decision not to go to the people for a vote that precipitated this whole controversy. They could have easily gone to the people.

It would have cost about $40,000 for them to have gone for a vote in March or November 1996; it could have been real simple for them to do.

The only reason the council doesn’t want to take these bond issues to a vote is not because they personally care whether this thing gets built or not; it doesn’t make a difference in their own personal lives; it’s because their campaign contributors want this to happen.

The building industry, the Spanos family, the baseball owners, engineering companies, hotel/motel people want this stuff built. There’s nothing wrong with that; they have legitimate reasons why they want that done.

When they do get it built, the contractors make money and all sorts of people benefit from construction contracts; there’s nothing wrong with that. What’s wrong is not the Spanos family wanting a free stadium. What’s wrong is not the hotel/motel people wanting sweetheart deals on leases in Mission Bay. I don’t fault the campaign contributors; I fault the city council for not resisting those pressures.

Q. Jack McGrory, who was then city manager, ordered the demolition at the stadium after you turned in your petition signatures. So isn't that McGrory's fault?

A. After doing our referendum and filing almost all of our signatures, certainly more than enough to qualify the referendum, we went down and talked to Jack McGrory last December and said we thought this should go on the ballot. Clearly the public agreed with that because, in this incredibly short period of time, only ten days, we had gotten all of these signatures because people wanted to vote on this. He went to the council and they told him, “Roll the bulldozers.”

Q. That must have been in closed session because there is no public record of the council voting on that.

A. No public record that we’re aware of; maybe phone conversations or something. What we know is that the manager doesn’t make those decisions on his own. We also know that not one councilmember criticized him, and when it was all over with, every single councilmember celebrated the fact that the public was beaten and they were able to do this construction without a public vote. Every councilmember celebrated this fact. That’s a shame. Even Valerie Stallings, who supposedly voted against the project, celebrated that the people didn’t get to vote on it. She was there drinking champagne, assuming champagne was served.

Q. Realistically, is there anything that the city council can do now to make the deal any better for taxpayers? The deal has been done, hasn’t it?

A. There’s a lot that can be done. We’ve got a very interesting question here of whether or not the Chargers have made their best effort to sell tickets to the games. If they haven’t, is that a material breach of the contract? Would that allow us to renegotiate and get rid of this whole ticket guarantee? That’s on the table right now. We know from the public record that the city council is not even thinking about that issue yet, but we’ve raised that issue and we’re going to compel them to start thinking about it.

The second thing is that since it’s five and a half years off, the city council and the San Diego Union-Tribune haven’t alerted the people yet that in the year 2003 [the year the old agreement would have come to an end], the Chargers can go out and shop this team to other cities. Then in 2006, the very year the ticket guarantee ends, the Chargers can bring the first offer back from another city. When you look at that agreement, you start to cry. To think that our city council put our city in this position. It is so obvious why this provision is in there; it’s because the Chargers want to be able to raise ticket prices as high as they can get away with under the ticket guarantee.

Every time they raise ticket prices it gives them more and more money to do what? To buy what they hope is a better and better team. The council will have to extend the ticket guarantee, give them $100 million to stay here, or they’re going to leave. The fact is that we haven’t locked this team in at all! 'The Chargers can start shopping the team in 2003 and get to come back and ask the city of San Diego to match the offer of any other city. If we match it the first time, they can come back a second and third and fourth and fifth time to make us match it again. It’s the most unbelievable contract I have ever read in all my years of practicing law, and I’ve done a lot of contract review.

And then last Monday, the San Diego Union-Tribune prints this editorial that one thing we know is that it is absolutely guaranteed that the Chargers will be here through 2020, and that’s what really counts. Well, it isn’t guaranteed at all! What’s absolutely guaranteed under this contract is that, unless they’re fools, the Spanos family is going to start shopping this team in 2003!

Q. The city says Spanos can’t shop the team unless certain conditions are met.

A. The contract says you can only go out and shop the team if the money you pay your players exceeds the NFL salary cap. That’s like a snap of the fingers; that’s completely in the control of the Chargers to exceed their salary cap. They can do that anytime they want, particularly because they have a cost-plus contract!

As long as they can reflect the cost of a $25 million contract with a player in their ticket prices, and the city guarantees the sale of the tickets, it doesn’t cost them anything to pay a player any amount. If you want to raise your ticket prices as the Spanos family, you have to show that the new ticket prices are reasonably related to your costs. You can go to any player in the NFL and say, “I’ll pay you anything.” They can put together the most expensive team in NFL history, bar none, and they pass it on in ticket prices. If the public says, sorry, the prices are too high, the San Diego City Council steps in with public money and buys all those tickets the public says they can’t afford. The Spanos family has this cost-plus contract plus this incredible financial incentive to go out and shop the team starting in 2006.

It’s almost as though in 1995, Mayor Golding and the other members of the city council said, “What can we do to maximize the chance that the public will get the shaft in 2006? Won’t that be funny when we watch the Chargers come back with this $ 100 million-plus offer and watch the city council that is serving then squirm?”

Rut this isn’t an isolated example. This is one of almost innumerable examples of malfeasance and dereliction of duty on the part of the nine members of the San Piego City Council.

This idea of the San Piego City Council to pervert, literally pervert the concept of reclamation by taking treated sewage and putting it directly into our drinking water makes what the public’s looking at with the Chargers just pale in comparison. Our streets—all you have to do is drive around on San Piego streets and see another problem the council isn’t addressing. One of the most fundamental jobs the city is supposed to do isn’t particularly sexy, but they’re supposed to do it. Issue after issue after issue evidences the same utter failure on the part of the council to be doing its essential job; to be vigilant, to provide oversight, to provide policy leadership. It isn’t doing it.

Q. Do you think the city council's plan to use treated sewage as drinking water should go before voters?

A. Yes. Again, we’re issuing bonds on something that isn’t a vital public service. Thank fully there are some representatives up in Sacramento who have said, hey, something seriously wrong is occurring in this so-called reclamation program. What we should be doing is conserving water, and it’s quite clear that conservation can provide all of our urban needs for hundreds of years in California.

With the Chargers, you can choose not to go to the game and even if it’s shown on TV, it will have a negligible effect on the quality of your life. You’ll get over it. Rut when your sewer and water bill comes in, you can’t say no to the sewer and water bill. You don’t have an alternative; you can’t turn off the sewer and water.

And the truth is, the members of the San Piego City Council don’t care. When people go down and talk to them about the ridiculous cost of putting treated sewage in our drinking water in comparison to conservation and getting our drinking water that way, the city council won’t even listen; they won’t even consider the alternative. Somehow they’re excited about being the first city in California to put treated sewage directly into our drinking water.

Why do I call it perverted? Recause the whole idea of reclamation was to reclaim for irrigation purposes. We were supposed to be using it to water the freeway landscaping, not to be in our drinking water. It’s perverted in another sense, and this goes hack to the issue of the Chargers again. Huge numbers of San Diegans have been priced out of a public facility. In the case of the Chargers, it’s the stadium. In the case of sewer to-tap, it’s clean, disease-free drinking water.

The council doesn’t care because they get paid $70,000 plus. They can buy a bottle of water and drink it every day. They don’t have to drink San Diego water if they don’t feel comfortable with it. But ordinary San Diegans, people on fixed incomes, can’t afford that.

Q. So what do you do about it?

A. You go to the grand jury and ask for an investigation. You encourage people to run for city council who do show common sense and replace all of these people. You go down to the city council and try to wake them up to the issue.Ten years from now, if we’re not careful, there’s a substantial portion of the population in San Diego today who will have to move out; they won’t be able to afford to live here. Try going to a public library at 8 o’clock at night, anywhere, any night. One of the reasons that so seldom is the library open when you need it is because the money in the city budget is going to Charger ticket guarantees and sewer and water programs.

Q. At one point during the stadium controversy, the mayor said she was in favor of putting large obligations on the ballot. Apparently that hasn't made any progress.

A. Last February, the mayor held a press conference in which she said she was going to make the most important and momentous announcement in the history of the city. Her announcement was that she was going to take the steps necessary to make sure that all public projects in excess of $50 million would be placed on the ballot. Well, first, the charter says that already, but the good news was that the mayor was saying some loopholes would be closed. The bad news is that, as far as we can tell, the mayor has done nothing since the day she made, in her words, “the most momentous announcement of the city’s history.” We’re not sure quite what’s going on. We’ll have lots of opportunities to find out. We have a new public library coming up; will that go to a vote? We have “big, new improvements” to the water-reclamation system that will get us to the point that we will put treated sewage directly into our drinking water; will that come to a vote? We’ve got a request from the Padres’ owners for a new Padres-only baseball stadium; will that come to a vote? We’ve got the convention center expansion, now tied up in the courts; is she going to put that on the June ballot next year? We’re going to find out; we have the June ballot and the November ballot coming up. The mayor will have plenty of opportunity to put these big public projects on the ballot.

But there appears to be a grim determination on the part of councilmembers not to come to the public for a vote, and I say “grim” advisedly, because when you go down and talk to them about it in a public hearing, they are grim. They really get angry. I remember on the Chargers’ deal, the first time I went to the council on this matter was December of 1995.I came out of that meeting and said to people, if this was Argentina we’d disappear at this point; in other words, they’d take us out and kill us; that’s how angry they get. I’ve had councilmembers rise up out of their chairs, screaming at me at the top of their voice, livid, because I’ve taken the position that the public should vote on these issues. If it weren’t for the fact that there was a crowd around, they would physically attack you.

Q. What’s your position on a new baseball stadium?

A. If the Padres owners and the fans say we need a new stadium, I have no basis to second-guess them. There are only two things, I think, as a member of the public that you can respond to. One is, as our former city manager said, that Qualcomm is a perfectly adequate stadium for baseball. Granted, it’s now been designed as an idealized stadium for football, but it’s a perfectly adequate stadium for baseball. It’s not as though the Padres don’t have a place to play. The second issue is, if the owners and the fans want a new stadium, then they should pay for it. After all, baseball is a very lucrative business, and like Hollywood, they have an accounting system that gives them huge tax write-offs that make them look like they’re losing money, but as far as we know, nobody has sold a baseball team in the last 25 years, maybe the last 50 years, at a loss.

If somebody wants to suggest that the public ought to pay for a new baseball-only stadium, the thing to do is to put it on the ballot and make that argument, and if the people accept it, so be it; there will be a new baseball stadium built by the people.

If the people reject it, and the fans and the owners want a new baseball stadium, the answer is simple — build it. One thing the city can do is certainly help them find a location that makes sense, and again, it’s the fans and the owners that have the best information.

As far as whether public money is well spent on a baseball stadium, if there was unlimited public money — and there isn’t — if you were to spend $200 million on a new baseball stadium or you were to spend $200 million on improvements to Fiesta Island on Mission Bay, there’s no question in my mind that the money spent on Fiesta Island would have a far greater impact on the quality of life and the tourist industry than anything spent on a baseball stadium. If you really want to make a public investment for the sake of our tourist business, there’s no question in my mind that there are many, many more things that that money could be spent on that would enhance the quality of San Diegans’ lives as well as enhance the tourist business, above and beyond a baseball stadium.

There is no indication that a baseball stadium, if vou’re going to spend that money anyway, particularly enhances the local economy. It’s nice to have baseball here, but economically speaking, the city can get along fine without a baseball team. As Los Angeles has demonstrated, a city can do extraordinarily well without a baseball team. It doesn’t mean that, all things being equal, we’d all like to have top-notch hockey, basketball, baseball, and football teams here. We'd like to have it all.

Q. At one time, a lot of people thought you were pretty far out on these issues, but now it appears that some, if not all, of your direst predictions are coming true. You took a lot of abuse from that sports radio station that put up empty seats for you on a billboard, and somebody who anonymously printed up the “Screw Henderson" bumper stickers.

A. The ones my wife wouldn’t let me pass out at singles’ bars!

Q. Looking back on it, is that just the price of being out in front?

A. It goes back to the old saving of Harry Truman’s: “If you can’t stand the heat, get out of the kitchen.’’ That’s inevitable. You're going to step forward and people are going to take a lot of potshots at you, and the more controversial the issue, the more people are going to disagree with you. You can’t let that bother you.

Q. This seemed to be a little harsher than that, since it was attached to this threat to pull the team out of town. A lot of people said they hated you.

A. The NFL owners are very good at manipulating the public. They’ve made huge amounts of money doing that, and they do it as a profession. 'That’s why they get billions of dollars for the TV rights; it’s a media event, and they know how to use the media. The Chargers owners knew how to whip up an element of the population here in San Diego, and some of the businesses, radio stations felt if the teams moved, they’d have substantial financial loss. They knew how to whip those people up, and more power to them. That’s what vigorous debate is all about.

Q. So that goes with the territory?

A. It not only goes with the territory, but it is, in a sense. On the one hand I don’t like it, but on the other hand it’s been beneficial. It raises the public consciousness about the debate, it causes the debate to occur, it causes people to talk about the issue. It’s like the question of putting treated sewage directly into our drinking water. There’s no question in my mind that if San Diegans knew the facts about that program, 99 percent of them or more would vote against it. It’s really dumb if you look at it: it’s bad for the environment, it’s bad for economics, it’s bad for people who can’t afford bottled water, it’s bad and stupid. Hut to get the public to talk about that issue is something a single individual can’t do.

What has to happen is the public has to get excited about that issue, and with the Chargers’ deal, there wasn’t any question the public was excited, and the Chargers got them excited. When the Chargers did that, they took the risk that the closer the public came to the facts, the closer they were able to scrutinize the transaction, the less they would like it, not the more.

That’s really what’s happened; as time has gone on and all of this publicity has occurred, people have come to the conclusion that there’s something wrong here. If I take some hits in the course of that process occurring, so be it. The really interesting question here is—and this is one of the reasons that the city councilmembers have over the last few years been so very careful to avoid controversy — that controversy means people are going to look at what you say. They’re going to examine and test it. If you’re wrong, you’re going to look like a fool, so you’d better have done your homework.

I did my homework, and so I wasn’t worried. I was worried for San Diego, and I’m sad to see things go wrong. I hope that with all this publicity maybe they’ll get all these seats sold and we won’t lose $4 million this year, but the fact is that councilmembers know they don’t do their homework, they know they don’t know the issues, they know they’re not aware of the facts, and so they won’t go out and publicly debate these issues.

They desperately avoid controversy, because they know that when these transactions are closely scrutinized, they’ll look the fool, and it’s sad. It’s a sad commentary. We pay these people a lot of money, and I don’t know if they don’t have the background to do the work or they’re just not doing it, but my impression is that they don’t read the documents, they’re not interested in finding out the facts, and they don’t even ask the obvious questions.

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Bruce Henderson: "I’ve had councilmembers rise up out of their chairs, screaming at me at the top of their voice." - Image by Joe Klein
Bruce Henderson: "I’ve had councilmembers rise up out of their chairs, screaming at me at the top of their voice."

Two years ago this December, Bruce Henderson, Richard Rider, and Steven Green went to court to answer a so-called “validation suit” filed by the city of San Diego. What the city council thought would be a pro forma legal action to clear the way for expansion of the stadium turned into an epic battle over whether San Diego voters had the right to decide the fate of the multimillion-dollar construction project and its accompanying 60,000-seat guarantee for the Chargers. Two court fights and a referendum signature drive later, the city council prevailed and the Chargers deal was done. Late last week, in light of the Chargers’ disastrous home season opener and its television blackout, Henderson was asked to look back on the fight over the stadium and what lessons it may hold for the city’s future.

Charger fans, August 9, 1997

Q. It seems as though all of your predictions of gloom and doom on this thing are coming true.

A. Well, certainly we have a wake-up call. We, and when I say “we,” I’m talking about tens of thousands of people who signed the referendum petition and said, we’re concerned about the stadium expansion, and |we’d] like to vote on it. When you went out to talk to people, they were upset about the idea of a cost-plus contract for the Chargers. During times of war, the government enters into a cost-plus contract, or if you have an earthquake and you want to rebuild a freeway, you enter into a cost-plus contract with somebody. But to enter into a cost-plus contract where you guarantee the sale of football tickets for ten seasons at any price the team puts on the tickets is something the public doesn’t agree with.

Golding, Alex Spanos, Dean Spanos, Paul Tagliabue. "Unless they’re fools, the Spanos family is going to start shopping this team in 2003."

They tried to issue a wake-up call to the city council, to say, just step back, put this on the ballot, let’s renegotiate this deal. There’s a problem here. And to a person, the members of the San Diego City Council said, “Buzz off. Buzz off. We’re in complete control. You’ve elected us to make these decisions, and we’re not interested, having been elected, in hearing your opinions on this, and we don't think your concerns are worth our attention.”

First home game with expanded seating (Sept. 14, 1997); attendance deficit led to TV blackout.

In the last nine or ten months — they signed the deal with the Chargers about two and a half years ago, and we did our referendum last December — the city council has done absolutely nothing to make any inquiry of the Chargers or the manager’s office or this Sports Council that we hear about but can’t quite figure out what its role is. They’ve made no inquiry of the most simple sort, just saying, “What sort of marketing program do you have, what are you doing to minimize the city’s exposure?” Nothing.

Barbara Warden, Valerie Stallings. Stallings celebrated that the people didn’t get to vote on it.

Q. What are the key issues?

A. There are three key issues here when you’re looking at this subject, that is, the City of San Diego’s relationship with the San Diego Chargers. Number one: This is not an infant industry; this is an industry that is making hundreds of millions of dollars, billions of dollars, off TV revenues alone. This isn’t a business that requires public subsidy to make a profit. Pure and simple.

John Witt, Jack McGrory, Harry Mathis. "McGrory went to the council and they told him, 'Roll the bulldozers.'"

So the first issue is, should the City of San Diego be building facilities for a professional football team? And bound up in that issue is the fact — obvious to anyone who attends one of these games — that it is very expensive to go to a football game. This isn’t like building Mission Bay, where access is essentially free. If you can afford the price of the gas, you can drive your family up to Mission Bay and have a wonderful time there, have a picnic, and you don’t have to spend any more money, you don’t have to pay anything to anybody, and you can use that facility free. That’s what a public facility is all about.

But the stadium and the Chargers have quite a different relationship with people in this city. There, you go to the game, it’s a stadium you paid for, you underwrote, and the ticket prices and the cost of some food — and by the way, you’re not even permitted to bring food in; they actually search your bags to make sure you don’t bring anything in that they can sell to you — the bottom line is that it’s become so expensive to go to a football game that very few San Diegans can afford to do that. That’s why ticket sales are so low and we are so concerned about these guarantees.

The guarantee creates this perverse economic relationship in which the Chargers can continue to raise ticket prices as they claim they need more and more money to pay football players higher and higher salaries and because they have, you know, more and more corporate jets to fly their executives around the country because they’re engaged in all these big-league business deals. They keep raising the prices, and we guarantee them, and fewer and fewer San Diegans can afford to go. So the first issue is, should we, as a local government, be building a facility for a professional football team? The answer to that, I think, is quite clear: no.

That’s why the city council was so desperate that this item not go on the ballot, because they knew there wasn’t a chance of it passing in San Diego. San Diegans think the money ought to be going into a lot of other things, but certainly not an expanded football stadium for the Chargers. That raises the second issue.

Back in the 1960s when we built this stadium and then added on to it, we created a stadium that was optimized for football and baseball, both together. It wasn’t perfect for each, but it accommodated both professional football and professional baseball, and the Chargers and the Padres were pretty happy at Jack Murphy Stadium, although there were always problems in accommodating the two schedules.

Well, now the city council has altered the design of the stadium to idealize it for football — at least that’s the report, and that’s how it appears. They did that full knowing that they didn’t have an agreement with the Padres, creating a situation where the Padres either have to play in a stadium that’s been idealized for ftxrtball as opposed to baseball, or they ask for a brand-new stadium, under circumstances in which it’s unlikely the public’s willing to grant that request. Therefore. the council, by doing what they did for the Spanos family, has jeopardized the continuing presence in San Diego of the Padres, so that’s issue number two.

Issue number three is that the city council, in 1995, entered into its agreement with the Chargers that apparently was not reviewed by the San Diego City Attorney’s office. The city attorney is a separately elected official in the City of San Diego, in order that the city attorney have considerable independence and oversight of the legality of any deals the city gets into. But somehow the politics of this were worked in such a way that the city attorney’s office was not substantively involved in this contract, and I think any contract attorney who reads the contract will see that no one really bargained on behalf of the city’s best interest in connection with this agreement.

Apparently a document that was drafted by the Chargers’ attorney was accepted as is, and the question is, how could that have happened? It doesn’t make sense. Former City Attorney John Witt published a long essay about this and how disappointed he was about the terms of this contract. He said something to the effect that he wasn’t in on the drafting of it. Somehow he had been left out of the loop, and maybe somebody in his office had been involved, but that person in his office never came forward and explained his involvement, so there’s truly a mystery there.

Q. There's been a lot of controversy about who is supposed to sell the tickets. The mayor says it’s the team's responsibility, but the contract with the city says the city guarantees that the seats be sold or the city makes up the difference. What’s your take on that?

A. The ticket guarantee essentially says that we guarantee that 60,000 general admission tickets will be sold for each game for ten games a season for ten years. So that’s a lot of tickets. That’s six million tickets. If you assume that the average price over ten years for tickets at about $50, counting in inflation — it’s rfow about $40 for the Chargers — that’s a $300 million liability that the city took on. A tremendous liability. Plus the liability under the bonds, which are about $200 million. So that’s about a $500 million liability that the city assumed.

That brings us to the next issue. Having assumed that liability, the city council provided over the last two and a half years no oversight over the liability. So far as I know — and we’re making inquiry now to find out exactly what occurred — the city council never requested the manager’s office to come to them and report to them about ticket sales; never required the city manager or the Chargers to ever indicate what marketing plan was in place; never asked about what contingencies might be developed; never requested that [because the city was going to buy all the tickets anyway] the Chargers and the NFL agree first that there never be a blackout at any guaranteed game, so that San Diegans who couldn’t afford these tickets — because the Chargers are encouraged to put any price they wish on them — could watch the game at home and maximize the involvement of the Chargers in the San Diego community. After all, if we’re going to pay for all of this, the team better play a major role in our lives. The long and short of it is, it wasn’t an oversight on the part of the city council, it was absolute silence.

Q. The mayor is quoted as saying that it is her belief that the city doesn't have any role.

A. It could be true that the city doesn’t have any role other than to write a check if tickets don’t sell. But that is narrowly focused on the question of. Does the city have a duty or a role in selling the tickets? That has nothing to do with oversight. The reason we elect a city council is to provide oversight. That is its fundamental job. If you look at the city motto, it’s “Ever Vigilant.” The whole idea is that you elect nine people, pay them lots of money — councilpeople get the equivalent of about, with their benefits, $70,(XX) per year. The mayor gets $80,000, and they have a staff and overhead support of at least $500,000 each, the mayor $1 million or more, so they’ve got lots of staff — and they’ve got the wherewithal to do exactly what they’re supposed to do.

They’re supposed to provide oversight and make policy decisions. In this case, oversight means that you make sure that there’s a plan in place, whether it’s a city plan or the Chargers’ plan, to sell those tickets so that you minimize the chance that there’s any liability in regards to that ticket guarantee. No such oversight was provided by the city cou n -cil, so far as we can tell by the record.

Q. Doesn't the contract with the Chargers spell out who is to do what with respect to selling the tickets?

A. There are two statements in the contract with the Chargers. One is that the Chargers will make their "best efforts” to fill the stadium. “Best efforts.” So far as I know, no one in the city attorney’s office or the city council has ever tried to figure out what that means. We’re asking that question right now, to find out whether anybody’s looked at that question.

That’s part of the oversight issue, and the profound failure on the part of the council to provide oversight on this issue. The second provision of the contract is quite interesting. It has to do with the ticket guarantee. At the very end of the provision on the ticket guarantee, where it says that the city will guarantee the sale of six million tickets over ten seasons at any price the Chargers puts on them, the city makes reference to the fact that it’s relying on the San Diego International Sports Council to fulfill that obligation, but the agreement goes on to say that although the Chargers recognize that it’s the Sports Council that’s going to guarantee those ticket sales, ultimately it’s the city who is on the hook. That’s another thing we’re making an inquiry about.

When you go back to the city manager’s report, on May 10 of 1995, 15 days before the council voted for the agreement with the Chargers, the manager’s report says that there is an agreement with the Sports Council to guarantee the sale of the tickets, those six million tickets. At least guarantee the sale, to write the check if the sale doesn’t occur.

There is no record, as far as we can tell, of any request by the city council to see any documentation of this relationship with the Sports Council, any indication that the city council ever asked if the Sports Council has the financial wherewithal to guarantee $300 million worth of ticket sales. Any evidence that the city council ever, in the last two and a half years, asked for a report from the Sports Council on how things were going.

In fact, there’s no evidence that the Sports Council even knows that they’re responsible for these sales, as the city manager and the city has asserted. This is one of the reasons that I filed a formal request with a San Diego County Grand Jury to do an investigation. What’s going on here? Who is providing oversight?

Q. Is it possible to point the finger specifically at anybody — McGrory, Golding, the council?

A. You always have to point your finger at the city council; they arc ultimately in control; they hire and fire the city manager. And they like to point the finger at the city manager. If they ask the manager, for example, to give a report on how ticket sales are going or a report on the ability of the Sports Council to fulfill its obligation to guarantee the sale ofithese tickets, and give us a copy of any agreement with the Sports Council, and the manager doesn’t do that or makes mistakes on the report, then they can point a finger.

But if the council never asks the question, the council sends a clear message to the manager that they don’t want to know. Just like the mystery of whether the city attorney was ever involved in the negotiating. The city attorney is separately elected, and it’s pretty shocking to hear the city attorney say he was cut out of the process, even if somebody in his office was doing “something.”

So, it’s the city council, and the two people on the city council who are especially responsible... for one, the mayor. She was very involved with Mr. Spanos; the record of that is quite clear. Mr. Spanos was very helpful, I understand, with the Republican Convention, and the question is, did the mayor do him a favor and get him a contract that essentially cut out the Padres and created this unprecedented cost-plus contract? But she’s only one vote.

Q. Didn’t then-City Attorney John Witt later claim that the mayor and Mc-Crory were in charge of negotiations?

A. Yeah, he claims that she actually had all these ex parte contacts and other councilmembers. Harry Mathis in particular claims he was involved in negotiations, which raises some other issues about ex parte contacts and what went on here.

Q. What do you mean by ex parte contacts?

A. That means that there were contacts outside of noticed council meetings. We have in California what is called the Brown Act, which codifies the rule that council people shouldn’t do council business with specific individuals except in a public meeting that’s been duly noticed, so that you can see what they’re saying, what agreements are being made, what the negotiations are.

The question here is, what were councilmembers doing in private negotiating aspects of this contract outside public meetings? Were there violations of law? That’s something the grand jury needs to look into.

The other person on the council, interestingly enough, who has particular responsibility, is the councilmember who has for years served on the Stadium Authority. That councilperson is Valerie Stallings. She has served on that committee, as far as I know, since 1991, so her colleagues on the city council would look to her for leadership, she and the mayor. One of the things we’re making inquiry of Stallings’s office is, What warnings did you provide your council colleagues? What concerns did you express? What oversight did you provide, because you were specifically delegated with the authority to provide the oversight over this Chargers’ agreement? Did you do that? What relationship do you have with the Sports Council? Did you look into this agreement? What did you ask from the manager in the way of reports? What reports did you issue to your council colleagues? Those are all questions that we need to have answers to and the grand jury should look into.

Q. The record shows that Stallings voted against the various aspects of the project, and the other day she maintained, in a U-T interview, that she had these fears about problems with the Chargers all along.

A. She definitely voted against the Chargers’ agreement, and that put her in an excellent position to criticize. But so far as we can tell — and I’m talking about hundreds of thousands of people who have been trying to follow this issue, and many of us have tried to look at the record — she never articulated any of the problems, beyond her concern that expansion of the stadium would increase traffic.

She has said she’s had many concerns. I don’t see how any knowledgeable human being could fail to have many concerns. We went down and had many public meetings with the council, where we alerted them to many concerns, so she should have, if she was listening, had many concerns. Her job, very specifically as the council representative to the Stadium Authority, was to bring those concerns to the council, to alert them to the problem, and take steps to address her concerns.

We’re trying to find out what she did; as far as we know, she didn’t do anything. And that’s another question; why did she remain silent? Maybe what we need to do is to look at her campaign contribution list and find out why she remained silent, because there are only two possible reasons why she would remain silent. One is because she made some sort of promise to campaign contributors that she wouldn’t involve herself in this, just keep her mouth shut while we went down this path to disaster. Or she wasn’t doing her job — utter, complete malfeasance and dereliction of duty. I don’t know which, maybe a little of both.

Q. You mentioned the Brown Act. Wasn't there an issue where the council held many closed-session meetings on this issue, and they gave the reason because there was the litigation pending?

A. There were a variety of meetings that the council held concerning negotiations on the Chargers’ contract and subsequent issues regarding the Chargers’ contract, and the Brown Act does allow for closed meetings.

The real question is, did individual councilmembcrs engage in negotiation outside noticed meetings? It’s hard to find out what happens in closed session, but ultimately the Brown Act says you’re to come forward after the closed meeting and explain what happened.

Councilmembers don’t tend to provide very much detail about what happened. It’s a different issue whether or not you have meetings or negotiating sessions outside that. That’s something only the grand jury can look into.

Q. What about the role of the local judiciary in all of this? There were two San Diego superior court judges that ruled on these stadium issues, one in the validation case and the second one in the referendum case, and both ruled against you and let the project and the deal with the Chargers proceed. Were they mistaken?

A. Well, we wouldn’t have gone to court if we hadn’t believed that the judiciary had an opportunity to step in and look at some very important issues here, whether or not these sorts of long-term liabilities — like the ticket guarantee, which is a ten-year liability, potentially costing $300 million, depending on how the Chargers price the tickets — should have gone on the ballot.

The point is that there is a long-term liability there, and the city charter and the state constitution are both clear that if there are multiyear liabilities, the people are supposed to vote. The judiciary could have stepped in and looked carefully at this. The supreme court has said over the years that the superior courts are supposed to make the best effort to protect the people’s right to vote, and unfortunately the two judges we encountered here in San Diego didn’t find any means that made them comfortable to do that.

Two things, however, happened in connection with the lawsuit that we brought on the stadium construction that were particularly disappointing. One of those things had to do with the judge. We had argued certain points; we’d argued point A, and the city had argued point Z. We were pretty far apart in our two arguments. We walk into court the day of the hearing on February 20, and without any notice to us and without any opportunity for us to respond, the judge makes argument M, right in the middle. A different argument than we’d ever made, a different argument than the city had made. We never had any chance to respond to that.

Q. Why didn't you appeal the ruling, then?

A. We did have a right under the law to appeal that ruling. The problem we had was that Qualcomm had come into the city and offered $18 million for naming rights to Jack Murphy Stadium. Qualcomm made that $18 million payment to the city conditioned upon the fact that I not appeal Judge Anthony Joseph’s opinion. The agreement between Qualcomm and the city said very specifically that if Bruce Henderson appeals Judge Joseph’s decision, and the stadium goes on the ballot, we’ll take the $18 million away. The implication was that Bruce Henderson would be responsible for the loss of that $18 million plus the interest. As a practical matter, it was impossible to fight that kind of pressure, and I don't think that is a sign of good citizenship on Qualcomm’s part. I’m very critical of Qualcomm because of that.

Q. From Qualcomm’s standpoint wouldn't that be a sensible condition, though?

A. I can understand why they did it; I don’t think it’s indicative of an A-plus in citizenship. The people’s right to vote is the most important issue of all in a democracy. For them to put this gigantic barrier in the way of my trying to enforce the people’s right to vote... I mean, after all, I had gone out and gotten 60,000 signatures of people saying they wanted to vote on this deal, and that’s why we were in court, in part.

Q. From the city council's point of view, didn't the Chargers' threat to leave town also play a role in the decision not to put the stadium issue on the ballot? That and the desire to host the Super Bowl here?

A. The Chargers were saying they were going to leave, but the truth was that we had an agreement with the Chargers until the year 2003. The Chargers were already here until 2003, so we had a lot of time to negotiate a settlement with the Chargers. The other thing as far as the Super Bowl goes is that the last time we did a Super Bowl, we put in temporary seating, and this time the NFL said we could put in temporary seating again, so it isn’t as though we couldn’t have handled the Super Bowl absent of the city tearing down the stadium.

Q. Still, the Chargers were threatening to leave town if the stadium wasn't done on time, and the city had already rolled the bulldozers.

A. That goes back to the fact that...a couple of things precipitated all of this. One was that not only did the city enter into an agreement with the Chargers, but then they went out and tried to issue the bonds to build the stadium improvements without a vote of the people. That was to be the first time in the history of this city that stadium improvements would be built without the people’s vote. A number of us, Dick Rider and I, stepped in and said we don’t think that should happen, we think the people should have a vote on this.

We lost in court; the supreme court refused to consider that particular case. Nevertheless, it was the council’s decision not to go to the people for a vote that precipitated this whole controversy. They could have easily gone to the people.

It would have cost about $40,000 for them to have gone for a vote in March or November 1996; it could have been real simple for them to do.

The only reason the council doesn’t want to take these bond issues to a vote is not because they personally care whether this thing gets built or not; it doesn’t make a difference in their own personal lives; it’s because their campaign contributors want this to happen.

The building industry, the Spanos family, the baseball owners, engineering companies, hotel/motel people want this stuff built. There’s nothing wrong with that; they have legitimate reasons why they want that done.

When they do get it built, the contractors make money and all sorts of people benefit from construction contracts; there’s nothing wrong with that. What’s wrong is not the Spanos family wanting a free stadium. What’s wrong is not the hotel/motel people wanting sweetheart deals on leases in Mission Bay. I don’t fault the campaign contributors; I fault the city council for not resisting those pressures.

Q. Jack McGrory, who was then city manager, ordered the demolition at the stadium after you turned in your petition signatures. So isn't that McGrory's fault?

A. After doing our referendum and filing almost all of our signatures, certainly more than enough to qualify the referendum, we went down and talked to Jack McGrory last December and said we thought this should go on the ballot. Clearly the public agreed with that because, in this incredibly short period of time, only ten days, we had gotten all of these signatures because people wanted to vote on this. He went to the council and they told him, “Roll the bulldozers.”

Q. That must have been in closed session because there is no public record of the council voting on that.

A. No public record that we’re aware of; maybe phone conversations or something. What we know is that the manager doesn’t make those decisions on his own. We also know that not one councilmember criticized him, and when it was all over with, every single councilmember celebrated the fact that the public was beaten and they were able to do this construction without a public vote. Every councilmember celebrated this fact. That’s a shame. Even Valerie Stallings, who supposedly voted against the project, celebrated that the people didn’t get to vote on it. She was there drinking champagne, assuming champagne was served.

Q. Realistically, is there anything that the city council can do now to make the deal any better for taxpayers? The deal has been done, hasn’t it?

A. There’s a lot that can be done. We’ve got a very interesting question here of whether or not the Chargers have made their best effort to sell tickets to the games. If they haven’t, is that a material breach of the contract? Would that allow us to renegotiate and get rid of this whole ticket guarantee? That’s on the table right now. We know from the public record that the city council is not even thinking about that issue yet, but we’ve raised that issue and we’re going to compel them to start thinking about it.

The second thing is that since it’s five and a half years off, the city council and the San Diego Union-Tribune haven’t alerted the people yet that in the year 2003 [the year the old agreement would have come to an end], the Chargers can go out and shop this team to other cities. Then in 2006, the very year the ticket guarantee ends, the Chargers can bring the first offer back from another city. When you look at that agreement, you start to cry. To think that our city council put our city in this position. It is so obvious why this provision is in there; it’s because the Chargers want to be able to raise ticket prices as high as they can get away with under the ticket guarantee.

Every time they raise ticket prices it gives them more and more money to do what? To buy what they hope is a better and better team. The council will have to extend the ticket guarantee, give them $100 million to stay here, or they’re going to leave. The fact is that we haven’t locked this team in at all! 'The Chargers can start shopping the team in 2003 and get to come back and ask the city of San Diego to match the offer of any other city. If we match it the first time, they can come back a second and third and fourth and fifth time to make us match it again. It’s the most unbelievable contract I have ever read in all my years of practicing law, and I’ve done a lot of contract review.

And then last Monday, the San Diego Union-Tribune prints this editorial that one thing we know is that it is absolutely guaranteed that the Chargers will be here through 2020, and that’s what really counts. Well, it isn’t guaranteed at all! What’s absolutely guaranteed under this contract is that, unless they’re fools, the Spanos family is going to start shopping this team in 2003!

Q. The city says Spanos can’t shop the team unless certain conditions are met.

A. The contract says you can only go out and shop the team if the money you pay your players exceeds the NFL salary cap. That’s like a snap of the fingers; that’s completely in the control of the Chargers to exceed their salary cap. They can do that anytime they want, particularly because they have a cost-plus contract!

As long as they can reflect the cost of a $25 million contract with a player in their ticket prices, and the city guarantees the sale of the tickets, it doesn’t cost them anything to pay a player any amount. If you want to raise your ticket prices as the Spanos family, you have to show that the new ticket prices are reasonably related to your costs. You can go to any player in the NFL and say, “I’ll pay you anything.” They can put together the most expensive team in NFL history, bar none, and they pass it on in ticket prices. If the public says, sorry, the prices are too high, the San Diego City Council steps in with public money and buys all those tickets the public says they can’t afford. The Spanos family has this cost-plus contract plus this incredible financial incentive to go out and shop the team starting in 2006.

It’s almost as though in 1995, Mayor Golding and the other members of the city council said, “What can we do to maximize the chance that the public will get the shaft in 2006? Won’t that be funny when we watch the Chargers come back with this $ 100 million-plus offer and watch the city council that is serving then squirm?”

Rut this isn’t an isolated example. This is one of almost innumerable examples of malfeasance and dereliction of duty on the part of the nine members of the San Piego City Council.

This idea of the San Piego City Council to pervert, literally pervert the concept of reclamation by taking treated sewage and putting it directly into our drinking water makes what the public’s looking at with the Chargers just pale in comparison. Our streets—all you have to do is drive around on San Piego streets and see another problem the council isn’t addressing. One of the most fundamental jobs the city is supposed to do isn’t particularly sexy, but they’re supposed to do it. Issue after issue after issue evidences the same utter failure on the part of the council to be doing its essential job; to be vigilant, to provide oversight, to provide policy leadership. It isn’t doing it.

Q. Do you think the city council's plan to use treated sewage as drinking water should go before voters?

A. Yes. Again, we’re issuing bonds on something that isn’t a vital public service. Thank fully there are some representatives up in Sacramento who have said, hey, something seriously wrong is occurring in this so-called reclamation program. What we should be doing is conserving water, and it’s quite clear that conservation can provide all of our urban needs for hundreds of years in California.

With the Chargers, you can choose not to go to the game and even if it’s shown on TV, it will have a negligible effect on the quality of your life. You’ll get over it. Rut when your sewer and water bill comes in, you can’t say no to the sewer and water bill. You don’t have an alternative; you can’t turn off the sewer and water.

And the truth is, the members of the San Piego City Council don’t care. When people go down and talk to them about the ridiculous cost of putting treated sewage in our drinking water in comparison to conservation and getting our drinking water that way, the city council won’t even listen; they won’t even consider the alternative. Somehow they’re excited about being the first city in California to put treated sewage directly into our drinking water.

Why do I call it perverted? Recause the whole idea of reclamation was to reclaim for irrigation purposes. We were supposed to be using it to water the freeway landscaping, not to be in our drinking water. It’s perverted in another sense, and this goes hack to the issue of the Chargers again. Huge numbers of San Diegans have been priced out of a public facility. In the case of the Chargers, it’s the stadium. In the case of sewer to-tap, it’s clean, disease-free drinking water.

The council doesn’t care because they get paid $70,000 plus. They can buy a bottle of water and drink it every day. They don’t have to drink San Diego water if they don’t feel comfortable with it. But ordinary San Diegans, people on fixed incomes, can’t afford that.

Q. So what do you do about it?

A. You go to the grand jury and ask for an investigation. You encourage people to run for city council who do show common sense and replace all of these people. You go down to the city council and try to wake them up to the issue.Ten years from now, if we’re not careful, there’s a substantial portion of the population in San Diego today who will have to move out; they won’t be able to afford to live here. Try going to a public library at 8 o’clock at night, anywhere, any night. One of the reasons that so seldom is the library open when you need it is because the money in the city budget is going to Charger ticket guarantees and sewer and water programs.

Q. At one point during the stadium controversy, the mayor said she was in favor of putting large obligations on the ballot. Apparently that hasn't made any progress.

A. Last February, the mayor held a press conference in which she said she was going to make the most important and momentous announcement in the history of the city. Her announcement was that she was going to take the steps necessary to make sure that all public projects in excess of $50 million would be placed on the ballot. Well, first, the charter says that already, but the good news was that the mayor was saying some loopholes would be closed. The bad news is that, as far as we can tell, the mayor has done nothing since the day she made, in her words, “the most momentous announcement of the city’s history.” We’re not sure quite what’s going on. We’ll have lots of opportunities to find out. We have a new public library coming up; will that go to a vote? We have “big, new improvements” to the water-reclamation system that will get us to the point that we will put treated sewage directly into our drinking water; will that come to a vote? We’ve got a request from the Padres’ owners for a new Padres-only baseball stadium; will that come to a vote? We’ve got the convention center expansion, now tied up in the courts; is she going to put that on the June ballot next year? We’re going to find out; we have the June ballot and the November ballot coming up. The mayor will have plenty of opportunity to put these big public projects on the ballot.

But there appears to be a grim determination on the part of councilmembers not to come to the public for a vote, and I say “grim” advisedly, because when you go down and talk to them about it in a public hearing, they are grim. They really get angry. I remember on the Chargers’ deal, the first time I went to the council on this matter was December of 1995.I came out of that meeting and said to people, if this was Argentina we’d disappear at this point; in other words, they’d take us out and kill us; that’s how angry they get. I’ve had councilmembers rise up out of their chairs, screaming at me at the top of their voice, livid, because I’ve taken the position that the public should vote on these issues. If it weren’t for the fact that there was a crowd around, they would physically attack you.

Q. What’s your position on a new baseball stadium?

A. If the Padres owners and the fans say we need a new stadium, I have no basis to second-guess them. There are only two things, I think, as a member of the public that you can respond to. One is, as our former city manager said, that Qualcomm is a perfectly adequate stadium for baseball. Granted, it’s now been designed as an idealized stadium for football, but it’s a perfectly adequate stadium for baseball. It’s not as though the Padres don’t have a place to play. The second issue is, if the owners and the fans want a new stadium, then they should pay for it. After all, baseball is a very lucrative business, and like Hollywood, they have an accounting system that gives them huge tax write-offs that make them look like they’re losing money, but as far as we know, nobody has sold a baseball team in the last 25 years, maybe the last 50 years, at a loss.

If somebody wants to suggest that the public ought to pay for a new baseball-only stadium, the thing to do is to put it on the ballot and make that argument, and if the people accept it, so be it; there will be a new baseball stadium built by the people.

If the people reject it, and the fans and the owners want a new baseball stadium, the answer is simple — build it. One thing the city can do is certainly help them find a location that makes sense, and again, it’s the fans and the owners that have the best information.

As far as whether public money is well spent on a baseball stadium, if there was unlimited public money — and there isn’t — if you were to spend $200 million on a new baseball stadium or you were to spend $200 million on improvements to Fiesta Island on Mission Bay, there’s no question in my mind that the money spent on Fiesta Island would have a far greater impact on the quality of life and the tourist industry than anything spent on a baseball stadium. If you really want to make a public investment for the sake of our tourist business, there’s no question in my mind that there are many, many more things that that money could be spent on that would enhance the quality of San Diegans’ lives as well as enhance the tourist business, above and beyond a baseball stadium.

There is no indication that a baseball stadium, if vou’re going to spend that money anyway, particularly enhances the local economy. It’s nice to have baseball here, but economically speaking, the city can get along fine without a baseball team. As Los Angeles has demonstrated, a city can do extraordinarily well without a baseball team. It doesn’t mean that, all things being equal, we’d all like to have top-notch hockey, basketball, baseball, and football teams here. We'd like to have it all.

Q. At one time, a lot of people thought you were pretty far out on these issues, but now it appears that some, if not all, of your direst predictions are coming true. You took a lot of abuse from that sports radio station that put up empty seats for you on a billboard, and somebody who anonymously printed up the “Screw Henderson" bumper stickers.

A. The ones my wife wouldn’t let me pass out at singles’ bars!

Q. Looking back on it, is that just the price of being out in front?

A. It goes back to the old saving of Harry Truman’s: “If you can’t stand the heat, get out of the kitchen.’’ That’s inevitable. You're going to step forward and people are going to take a lot of potshots at you, and the more controversial the issue, the more people are going to disagree with you. You can’t let that bother you.

Q. This seemed to be a little harsher than that, since it was attached to this threat to pull the team out of town. A lot of people said they hated you.

A. The NFL owners are very good at manipulating the public. They’ve made huge amounts of money doing that, and they do it as a profession. 'That’s why they get billions of dollars for the TV rights; it’s a media event, and they know how to use the media. The Chargers owners knew how to whip up an element of the population here in San Diego, and some of the businesses, radio stations felt if the teams moved, they’d have substantial financial loss. They knew how to whip those people up, and more power to them. That’s what vigorous debate is all about.

Q. So that goes with the territory?

A. It not only goes with the territory, but it is, in a sense. On the one hand I don’t like it, but on the other hand it’s been beneficial. It raises the public consciousness about the debate, it causes the debate to occur, it causes people to talk about the issue. It’s like the question of putting treated sewage directly into our drinking water. There’s no question in my mind that if San Diegans knew the facts about that program, 99 percent of them or more would vote against it. It’s really dumb if you look at it: it’s bad for the environment, it’s bad for economics, it’s bad for people who can’t afford bottled water, it’s bad and stupid. Hut to get the public to talk about that issue is something a single individual can’t do.

What has to happen is the public has to get excited about that issue, and with the Chargers’ deal, there wasn’t any question the public was excited, and the Chargers got them excited. When the Chargers did that, they took the risk that the closer the public came to the facts, the closer they were able to scrutinize the transaction, the less they would like it, not the more.

That’s really what’s happened; as time has gone on and all of this publicity has occurred, people have come to the conclusion that there’s something wrong here. If I take some hits in the course of that process occurring, so be it. The really interesting question here is—and this is one of the reasons that the city councilmembers have over the last few years been so very careful to avoid controversy — that controversy means people are going to look at what you say. They’re going to examine and test it. If you’re wrong, you’re going to look like a fool, so you’d better have done your homework.

I did my homework, and so I wasn’t worried. I was worried for San Diego, and I’m sad to see things go wrong. I hope that with all this publicity maybe they’ll get all these seats sold and we won’t lose $4 million this year, but the fact is that councilmembers know they don’t do their homework, they know they don’t know the issues, they know they’re not aware of the facts, and so they won’t go out and publicly debate these issues.

They desperately avoid controversy, because they know that when these transactions are closely scrutinized, they’ll look the fool, and it’s sad. It’s a sad commentary. We pay these people a lot of money, and I don’t know if they don’t have the background to do the work or they’re just not doing it, but my impression is that they don’t read the documents, they’re not interested in finding out the facts, and they don’t even ask the obvious questions.

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