David Alvarez

On July 11, San Diego city councilmembers firmly shut the door on the open-government ballot measure which, if passed, would have designated communications sent by city officials and non-union employees on their personal electronic devices as public records.

The 7-2 vote to leave the item off the ballot is the latest defeat for the measure proposed by former councilmember and current president of Californians Aware Donna Frye.

Donna Frye

As reported by the Reader, Frye and Californians Aware, with support from councilmember David Alvarez, first proposed a ballot measure in 2013. The goal was to try and link old public records laws with new technology, thus preventing city officials and city employees from turning to private electronic devices to conduct city business.

But shortly before proposing the measure, Frye, who spoke to the Reader in 2014, says she began to feel resistance from some elected officials, namely city attorney Jan Goldsmith. According to Frye and councilmember Alvarez, the city attorney's office delayed meetings and advised councilmembers against placing a measure on the ballot over concerns that labor unions had failed to sign off on the plan. The measure ultimately failed to make it onto the ballot in 2014.

Jan Goldsmith

There were other reasons as well. The arrival of the ballot proposal in 2014 coincided with a lawsuit against the city and Goldsmith for using personal electronic devices and private email addresses to conduct city business. A judge ruled against Goldsmith in that case and the parties are now settling attorneys' fees.

Earlier this year, Frye and Californians Aware, again with the help of District 8 councilmember Alvarez, returned with a new, streamlined measure.

At the time the measure appeared to have momentum. In a letter from San Diego's chapter of the Society of Professional Journalists, Union-Tribune editorial editor Matt Hall endorsed the reform.

"[San Diego's Society of Professional Journalists] believes that the public's business should be done in public and that every citizen has the right to use open-record laws to track what government does in our name. [I]t's been argued that if a politician or a government bureaucrat uses a personal device, even to conduct the public's business, then it should be private. In other words, it's none of the public's business. This is nonsense."

Despite the refined ballot language and the support from outside groups, the majority of city councilmembers weren't willing to place the measure on the ballot.

“The action taken today by the city council was a devious ploy to ensure that this open government measure never reaches the voters,” Councilmember Alvarez said in a July 11 statement.

“I am disappointed that the rest of the council chose not to take this opportunity to make San Diego a leader in open government and transparency.

"I look forward to the day when the City takes open government seriously and I will continue to fight until that happens."

Additional stories on Goldsmith's lawsuit:

More money for city attorney's attorneys

A matter bigger than the city attorney

UPDATE 7/13, 4:50 p.m.

Donna Frye contacted the Reader following this report stating city attorney Goldsmith was instrumental in getting the measure docketed on the agenda. According to Frye, councilmember Sherri Lightner had planned on focusing the discussion about whether a meet-and-confer session needed to occur with city employee unions before a hearing on placing the measure on the ballot could take place.

Said Frye, “Without Jan Goldsmith, this item would not have been docketed for anything other than a discussion about meet-and-confer. Since January of this year, Jan has been a huge help and I am am very appreciative of his work on this."

According to Frye, Lightner had sent an email stating that the city attorney had advised her that a meet-and-confer was necessary. Frye sent the email to Goldsmith who then responded to Lightner.

"I understand your position that the committee decided to recommend that the matter move to meet and confer before taking action as to unrepresented employees,” wrote Goldsmith. "That recommendation, however, should not preclude the Council from taking a different action on the proposal.

"A recommendation is just that. The full council gets to decide. A recommendation from a committee, staff, or city attorney should never — through limited noticing or otherwise — preclude the full Council from disagreeing with that recommendation and deciding to take a different approach. We never limit the Council's choice only to the recommended course of action.

"Thus, my advice is to place the matter on the July 12 agenda as discussion and direction to staff and city attorney. The committee recommendation should be in the committee report, but should not limit the Council's options due to the manner in which the matter is noticed."