<a href="http://shawnolson.net/">Shawn Olson</a>
<a href="http://shawnolson.net/">Shawn Olson</a>
It was an open but mostly shut case from the beginning.
The proposed ballot measure — brought forth by councilmember David Alvarez; former councilmember now serving as president of the open-government advocacy group Californians Aware, Donna Frye; and the group’s lead counsel, Terry Francke — would have guaranteed public access to all emails, memos, and text messages from elected officials, making San Diego one of the most accessible and transparent cities in the state.
The measure was, for all intents and purposes, dead on arrival. And while the city council had the final say, Frye and others feel city attorney Jan Goldsmith was largely to blame for the ballot’s defeat. During the process, Goldsmith’s lawyers often refused to meet with the proponents to work through any outstanding issues. The office raised objections and threats of litigation to avoid placing it on the June 3 ballot.
“I don’t think there was a good faith commitment from the City Attorney’s Office to allow the ballot measure to move forward for voter consideration, and that is unfortunate for the citizens of San Diego,” said councilmember David Alvarez in a February 28 email, three days after the council rejected the proposal.
Alvarez, along with councilmember Marti Emerald, have since adopted a new tack. Instead of a ballot measure, they hope to amend the city charter to include many of the same changes proposed in the earlier initiative. It is unclear how the city attorney will respond. A council subcommittee is expected to discuss the item sometime before August.
Opposition to opening city government was anything but a surprise. “Open” and “transparent” aren’t words used often to describe city politics. Still, many observers were troubled by the fact that it is the city attorney’s office where the most recent attempts at closing off government have occurred. Since 2013, the former politician-turned-judge-turned–city attorney has been criticized for playing politics in what should be an apolitical office. And, he has been accused of failing to abide by California’s Public Records Act in two separate lawsuits.
During that time, Goldsmith has cozied up to reporters from U-T San Diego, sending tips from his private email address, suggesting edits to stories, and expediting public records requests. At one point, in what some say was an attempt to embarrass former mayor Bob Filner, he approved the same-day release of transcripts to a closed-session meeting.
New evidence obtained by the Reader shows that Goldsmith and his top attorneys denied requests from media outlets to see his correspondence with the same U-T reporters. In another instance, his office kept emails hidden.
The lawsuits in addition to other complaints were among the reasons Frye, Alvarez, and Californians Aware teamed up to bring forward the city-charter amendment.
“This is the city that I grew up in, live in, and one that I love and care about,” said Frye during a March interview. “This is also the city that has ignored and abused the public process. The public has a right to information about their city, and a right to expect that the processes they have set up for their government will be respected and followed. When they are not, it is almost impossible for me to sit back and remain silent, because the consequences of doing nothing means nothing will change and it will only get worse.”
Work toward the open-government initiative began in November 2013. Three months later, on January 15, the ballot measure was before the council committee on intergovernmental affairs.
Resistance from Goldsmith’s office was felt from the outset.
A January 14 report, delivered one day before the committee’s hearing, questioned the need for additional regulations. “[T]he Public Records Act already requires the City to ‘justify withholding any record by demonstrating that the records in question is exempt under express provisions…” Forcing new regulations, the report stated, could open the city to unnecessary and costly litigation.
In what appeared to be a victory for open-government advocates, on January 15 committee members forwarded the ballot measure to the city council for final approval and directed the city attorney’s office to work with Alvarez and Californians Aware to work out any kinks.
The victory was short-lived. Within eight days, Californians Aware had submitted two revisions but had received nothing from Goldsmith or his attorneys.
The first blow came on January 27, when Frye discovered the ballot measure did not make it on the council’s agenda along with the other measures discussed at the prior committee meeting.
During non-agenda public comment, Frye informed the council that Californians Aware was waiting for a response from Goldsmith’s office as to their January 20 and 23 revisions. She feared the city attorney was stalling in order to miss the deadline to put it on the ballot.
The ballot measure was then docketed for the February 10 meeting. Oddly enough, unlike the previous ballot measures, the item was listed as an “information” item only, meaning council was not allowed to act on the issue.
But from January 27 until the February 10 meeting, Goldsmith’s office did not respond to the suggested revisions, at least not until an hour before the council hearing began. Their response again raised the issue of potential litigation.
“It just got worse and worse, with a faction on the city council insisting that the city attorney must be satisfied and with that office raising the ‘invites litigation’ bogeyman at each opportunity,” recalled Francke from Californians Aware. “After repeated attempts to tamp down that concern with language changes and definition of terms, we finally ran into what seemed like a gratuitous stall pretext just to make the process miss the deadline for the June ballot.”
At the February 10 meeting, Frye’s frustration began to boil over. “This must be negotiated in good faith. Not games. Not delays. But to make sure that you understand that we want to make open government and open data something that this city can be proud of. We followed a process. We began this in November and we worked hard on it.”
To sweeten the deal, Frye, on behalf of Californians Aware, offered to donate $150,000 to pay to put the item on the ballot. No one on the council commented on the offer. The only councilmembers in support of the measure were Alvarez, who worked on the proposal, and Marti Emerald.
The rest of the council decided to give the city attorney’s office more time to look into the matter.
Frye and others spent the following two weeks addressing the city attorney’s concerns. They submitted two revisions, one on February 12 another on February 20.
On February 21, the city attorney’s office issued their final report on the matter, stating that California’s public records law already provides “comprehensive schemes to ensure that the public has access to meetings and to public records.” Additional regulations, read the report, “could repeatedly expose the City to litigation as to whether it met those additional requirements.”
Six days later, at their February 25 hearing, seven councilmembers, excluding Alvarez and Emerald, delivered the final blow, voting against placing the item on the ballot.
The process left Francke and Frye, as well as councilmember David Alvarez, convinced the city attorney knowingly derailed the proposed changes by stalling and raising unfounded objections.
“From the start of the discussion, the city attorney raised questions but did not offer much in the way of solutions,” says Alvarez. “Two of the three reports written by the city attorney were either released the day before or the day of a public hearing where the proposal was discussed, which allowed little to no time to address their ever-evolving concerns, which I think was by design.”
“I was really shocked by the opposition this proposal received from not only the city attorney, but the city council as well. At both council hearings, there was a clear effort to stop discussion on the proposal moving forward.
“Since I’ve served on the city council, I have seen that in many cases the city has not lived up to the spirit of open-government laws,” Alvarez says. “There have been many times that the media or members of the public are denied access to information without cause. I, myself, as a city councilmember, have been denied access to information as well because at times I have been at odds with positions the executive branch has taken, and the penalty for dissension was not allowing city staff to provide me with information on various issues.”
The lack of transparency in city hall, says Frye, worsened in 2004 when voters empowered the mayor’s office by bringing the so-called “strong-mayor” system back to San Diego. Soon after, then-mayor Jerry Sanders tightened his grasp on public records, creating a power struggle between the mayor and council.
“The changeover to a strong-mayor form of governance was not well thought out,” says Frye. “We are experiencing numerous consequences from that, one of which is the control over information and documents by the executive branch. For example, when I was on the city council, the ability for councilmembers to obtain even basic information was made much more difficult because it became a political game. If you did not go along with the mayor’s agenda or vote for every policy they supported, the odds of getting information became much worse.”
And while the mayor became more powerful, the city attorney’s office became more political.
“As for the city attorney being emboldened by the change to strong-mayor [government], I can only say that our current city attorney appears to see the office as a third branch of government, which of course has no basis in reality,” says Frye.
The city attorney’s office became more politically charged shortly after former congressman Bob Filner was elected mayor in 2012. It was then that Goldsmith entered into a public feud with Filner over a variety of issues.
The first blow came in June 2013, when Goldsmith issued a citywide memo questioning a $100,000 donation from Sunroad Enterprises to Filner, seemingly in exchange for his support on a development project.
“He keeps issuing these public memos,” Filner said at the time. “He could just call me up. They made some donations, a couple of checks, to important initiatives. I could have just told him that. He didn’t have to go and write a memo. He says I don’t tell him anything, but he’s the one issuing memos on hearsay. I don’t get it. He could just call and ask me.”
Not long after, the relationship between Goldsmith and U-T San Diego grew cozier. He wrote editorials for the paper. And, as evidenced in emails obtained in a public records request, he began to work closely with U-T reporters. He agreed to expedite public records requests, supplied them with stories, and oftentimes discussed city business with reporters using his private Yahoo! email address.
Then allegations of sexual harassment against Filner began to surface. As allegations turned into lawsuits, Goldsmith began orchestrating Filner’s removal from office, according to subsequent interviews with the Los Angeles Times and tweets between Voice of San Diego CEO Scott Lewis.
Since Filner’s August 30 departure, Goldsmith has apparently endeavored to keep emails between himself and the U-T far from the public eye. That can be seen in the pursuit by two media outlets to gain access to emails between Goldsmith and reporters and executives from U-T San Diego.
The first request came from senior producer at NBC San Diego Paul Krueger, on August 5, 2013. Krueger requested to see “all communications (including, but not limited to letter, memos, emails, text messages, and voicemails, calendar entries, appointments, and meetings between or involving City Attorney Jan Goldsmith, his office, and his employees and executives, employees and/or representatives of the U-T San Diego.”
Two weeks after he submitted the request, Krueger received a letter from deputy city attorney Ray Palmucci denying the request in its entirety, claiming that emails between the city attorney and U-T reporters and executives were considered “confidential attorney work-product.”
“The attorney work-product rule covers research, analysis, impressions, and conclusions of an attorney,” Palmucci wrote.
The claim that an elected city attorney’s discussions of city business with reporters were off limits to other reporters didn’t sit well with those at NBC.
In a response letter, obtained in a subsequent public records request by the Reader, Krueger’s colleague, investigative senior producer Wendy Fry accused the office of withholding information and accused Goldsmith’s deputy, Paul Cooper, of contacting Krueger and asking him why he wanted to see the emails.
“The repeated failure to respond to Mr. Krueger’s requests in a timely manner,” Fry wrote, “is in direct contravention of the Legislature’s intent. In addition, Cooper’s attempt to determine the reason the request was made, indicating it was contingent or somehow related to the office’s response to the request for public records, is precisely the type of behavior the [California Public Records Act] is intended to discourage. Further, the insinuation that staff in the city attorney’s office could barter away a request for public information is offensive and in direct conflict with the spirit of transparency and accountability intended by the state law.”
Meanwhile, as Fry and NBC went back and forth with the city attorney’s office, on December 9 this correspondent had unknowingly submitted the same request for emails to and from Goldsmith’s city email address and his private Yahoo! email to U-T reporters and executives.
On January 15, 243 pages worth of emails were ready for review. The emails showed cordial, prompt cooperation between Goldsmith and the local daily paper. He often responded to questions and requests within minutes, regardless of the hour of day, using his personal Yahoo email account on several occasions.
However, some emails were missing from the request, namely emails from former U-T “Watchdog” reporter Trent Seibert, U-T owner Doug Manchester, and Seibert’s boss, Ricky Young.
Six days later, in a response to questions about the missing emails, deputy city attorney William Gersten wrote the following message:
“In response to your expressed concern, we caused the IT search to be conducted again. The second, seemingly identical, search resulted in the revelation of several more emails that are responsive to your request in redacted form to exclude either non-responsive communications or those that are exempt and/or privileged.”
Again, missing from the batch were direct emails between Seibert and Goldsmith; this, despite several meetings between the two having taken place in that course of time, as Goldsmith’s calendar, also obtained through a public records request, noted.
Gersten stated that all other emails were considered privileged.
“As far as the lack of more emails, I can only state that we conducted two IT email searches for the names you listed and you were provided with all that were responsive, in redacted form of course. As far as the redactions, the portions redacted were communications within my office amongst attorneys that offered their thoughts and impressions on various issues. That is the very definition of work product. Additionally, those internal communications were not sent to the press individuals you identified, and thus would also not be responsive to your request.”
In early February, hoping to find the missing emails from Goldsmith’s office, the Reader asked to review public records requests submitted by other media outlets. It was then that the emails from Fry and Krueger were revealed. And, it was discovered that NBC had convinced the city attorney to turn over the emails. Within the batch were emails between Seibert and Goldsmith.
“Trent, Welcome to San Diego,” wrote Goldsmith to Seibert in a March 2013 email. “It is nice to see someone with your background joining the U-T. After you get settled, let’s get together for lunch.”
Seibert was the former editor and founder of the Texas Watchdog, an online news site that was funded largely by the Franklin Center for Government and Public Integrity, whose chief donors include billionaire conservative Charles Koch.
The only other email released, despite repeated meetings between the two, was on June 3, during Goldsmith’s contentious feud with Filner, before any allegations of sexual harassment had been made. In the email, Goldsmith explained to Seibert the impetus of the quarrel.
“Trent, The source of problems with Bob Filner is the role of the City Attorney. It goes back to the issues in the 2008 campaign for City Attorney,” wrote Goldsmith. The city attorney included an excerpt from an interview during his 2008 campaign against then–city attorney Mike Aguirre where he said that the role of San Diego’s top lawyer is “not an attack dog” and not a “lap dog” but a “watchdog.”
Regarding not including emails in the Reader’s request, deputy city attorney Gersten had the following to say. “You have previously submitted approximately 95 Public Records Act requests in the last two calendar years, some of which were very extensive. We spend a lot of time at taxpayer expense dealing with your many requests, in addition to many from other members of the community. Sometimes mistakes or miscommunications are had with you. When we discover that, we provide supplemental documents, which is what we did here.”
In a February 28 email, deputy city attorney Cooper provided his reasoning for asking Fry and Krueger what they intended to find in the public records request: “It is not uncommon in responding to requests for us to inquire what the requestor is actually seeking in order to help focus our response. Often requests are inartfully drafted and would result in unnecessary and overbroad searches often taking longer and producing documents not even sought by the requestor. So many times, especially when a request appears to be extremely broad, in order to be more efficient and responsive to requestor, we will try to narrow through such a question, that was the case in the NBC request.”
It’s not the only case when the city attorney’s office has failed to provide the public with records. That is evident in a lawsuit from attorney Cory Briggs. The complaint accuses the city attorney’s office of withholding emails stored on the city’s server from Goldsmith’s personal Yahoo! account.
According to Briggs, the city attorney’s office denied his client access to any of Goldsmith’s emails. Weeks later, the office did a 180, providing more than 100 pages of emails. Now, says Briggs, “a few days ago they said they started to look on the city’s computers — which they should have done from the start — and found at least 2600 ‘hits.’”
Goldsmith was delivered another blow on April 10, when Superior Court judge Joel Wohlfeil ordered Goldsmith to preserve any emails pertaining to city business to allow time for the case to unfold. That means not only may he be required to turn over those emails, but the city will be using taxpayer money to defend his use of private email for public business in court.
Attorney Kelly Aviles, who specializes in public-records and open-government law, says there is obvious wrongdoing. “Disclosure of public information serves an important purpose, namely to ensure transparency,” says Aviles. “Additionally, whistleblowers who release information about government wrongdoing, as well all as the media who report on such activities, are imperative to our democratic societies. And, when the city attorney refuses to disclose the information about his participation in such a scheme, or only selectively discloses that information, it violates the California Public Records Act. If the public and news media cannot verify the city attorney’s role, because of the obfuscation of the city attorney, the State Bar should.
“Furthermore, when a city attorney’s office decides to leak information to selective members of the media, from a private email account, it violates professional rules of conduct and makes us question whether there has been a breach of those duties.”
Aviles is not alone in her criticism of Goldsmith’s public records policy. “It appears to me that while the city attorney directed that information requests about other city departments coming from U-T San Diego were given the fast track, information requests about the city attorney’s own practices from U-T’s competitors were given, at best, a passive-aggressive resistance,” said Francke of Californians Aware. “Calling press contacts confidential ‘work product’ would get you flunked in a law school evidence course.”
Quick and Friendly Service for U-T San Diego
U-T San Diego op-ed editor Bill Osborne requests public records
11:44 a.m., November 21, 2013
- Hi, Jan.
- I would like to formally request that your office provide me with copies of emails and any other communications between staff in the mayor’s office and the contractor for the Convention Center expansion project regarding a project labor agreement for the expansion project.
- Thank you. Bill
City attorney Jan Goldsmith
City attorney Jan Goldsmith replies 22 minutes later
12:06 p.m., November 21, 2013
- Thanks, Bill. I have routed this to our PRA lead, Bill Gersten, with a request to expedite.
Not so much for NBC San Diego and other local media
NBC producer Paul Krueger requests public records
August 5, 2013
- Pursuant to my rights under the California Public Records Act… I ask to obtain copies of the following, which I understand to be held by your agency: All communications (including, but not limited to letters, memos, emails, text messages, and voicemails) calendar entries, appointments, and meetings between or involving City Attorney Jan Goldsmith, his office and his employees and the executives, employees and/or representatives of the UT San Diego and/or its legal entity, MLIM LLC.
Deputy city attorney Ray Palmucci refuses the request
August 21, 2013
- “Dear Mr. Krueger: The City is unable to respond to this request as it seeks information that is subject to the confidential attorney work–product privilege.”
NBC producer Wendy Fry
NBC producer Wendy Fry accuses city attorney’s office of withholding information
September 23, 2013
- “To date, KNSD has not received a response to any of the requests made that indicates the records were being gathered or any attempt is being made to make the records available and/or respond to the multiple requests, all of which are now outside the ten days required under the statute. The repeated failure to respond to Mr. Krueger’s requests in a timely manner is in direct contravention of the Legislature’s intent. In addition, [deputy city attorney] Cooper’s attempt to determine the reason the request was made, indicating it was contingent or somehow related to the office’s response to the request for public records, is precisely the type of behavior the [public records act] is intended to discourage. Further, the insinuation that staff in the city attorney’s office could barter away a request for public information is offensive and in direct conflict with the spirit of transparency and accountability intended by the state law.”
Wendy Fry continues to press city attorney’s office
January 6, 2014
- “KNSD is unsatisfied with your August 21, 2013, response to KNSD senior producer Paul Krueger’s request for records of communications between the City Attorney and his staff and/or representatives of the UT San Diego…. KNSD respectfully requests background information and documentation establishing that the documents withheld are subject to the work–product privilege and why sharing those documents with the UT San Diego (or its publisher) did not waive any such privilege.”
Deputy city attorney Paul Cooper
Deputy city attorney Paul Cooper finally agrees to NBC’s request
- Paul Cooper received a PRA request from Wendy Fry of NBC and agreed to respond within 2 weeks. Fry’s request: “Can you run a search of our office’s emails for emails FROM the following people: Jan, Paul Cooper, Andrew Jones, Mary Jo, Don Worley, Tom Mitchell, Gina Coburn and Mike Girogino TO the following people: Trent Siebert, Craig Gustafson, Doug Manchester, John Lynch, Jeff light, Bill Osborne, Chris Reed, Tom Arnold, Roger Hedgecock, Steve Breen, Jeff McDonald and Ricky Young?”