Former councilmember Donna Frye is asking that a judge order the San Diego city clerk to correct misleading and biased statements the city attorney's office made in describing a ballot initiative that, if passed, would raise and restructure the Transient Occupancy Tax and redirect revenues from hoteliers toward the general fund as well as sell Qualcomm Stadium and use the revenues to build educational facilities and parks.

Donna Frye

The August 26 writ of mandate, filed by attorney Cory Briggs (who co-authored the ballot measure with Frye), says the city attorney wrote a misleading and inaccurate summary of the initiative in hopes of sabotaging it at the ballot box. In addition, the complaint states that the city council erred in allowing city councilmember Scott Sherman — an outspoken critic of Briggs and opponent of the Citizens' Plan — to write the argument against the initiative that will also appear on the ballot.

Cory Briggs

In November 2015, Briggs and Frye released a proposal — named the Citizens’ Initiative — to city officials. Briggs and the nonprofit advocacy he represents, San Diegans for Open Government, had sued the Tourism Marketing District for running what the group called an illegal tax scheme.

Scott Sherman

The proposal raises the current Transient Occupancy Tax by 5 percent — from 10.5 to 15.5 percent — on hotels with 30 rooms or more. The proposal would simultaneously dissolve the Tourism Marketing District, which under the current setup allows San Diego's hoteliers to spend a 2 percent room charge on marketing and promotional campaigns aimed at boosting tourism. At the same time, the plan would pave the way to turn Qualcomm Stadium into extension campuses for San Diego State or UCSD. The plan would prohibit the city from using any public money to pay for a contiguous expansion of San Diego's convention center.

City attorney Jan Goldsmith

The plan was not well received by city attorney Goldsmith.

In April 2016, not long after Briggs and Frye announced they would begin collecting signatures to get the item on the ballot, Goldsmith released a memo in which he called some provisions "legally unreliable."

Among his objections, Goldsmith said the plan illegally allowed hotel operators to keep tax revenues and that it bypassed environmental requirements.

"This Initiative similarly contains legally questionable provisions, any one of which could invalidate the entire Initiative, including the tax increase," reads the press release. "Litigation challenging the measure could take many years to conclude during which the measure requires that the new taxes be collected. The Initiative contains no protection or security for the City from having to repay taxes or rescind actions upon a court finding one provision invalid, thereby rendering the entire Initiative void."

Despite the press release and Goldsmith's concerns, Frye and Briggs obtained over 100,000 signatures, ensuring placement on the ballot.

But, as stated in the August 26 court filing, Goldsmith's legal analysis, and alleged bias toward Frye and Briggs, appeared in his office's description of the measure for the November ballot, despite provisions in the city charter that require an impartial analysis be submitted for ballot measures.

Among the allegations include a claim that the city attorney's office changed the measure's former name of "The Citizens’ Plan for the Responsible Management of Major Tourism and Entertainment Resources" to "Tax and Facilities Initiative." There are misspelled words. The ballot summary also states that the measure would prohibit an expansion of the convention center at its current location.

Frye and Briggs take issue with referring to the restructuring as a "tax," especially considering a separate ballot measure from the San Diego Chargers — which would use revenues from a proposed hotel-tax increase to build a new stadium downtown — is referred to by the city attorney's office as an "initiative." According to Frye, adding the word "tax" immediately impacts a voter's view on the measure.

Another issue, according to the lawsuit, is that in the city attorney's summary the measure would "prohibit on-site expansion" of San Diego's convention center. Instead, according to the complaint, the measure would "block" any city participation in expanding the current convention center on the waterfront without a public vote.

"It is no secret that several of the defending parties have a political axe to grind against Mrs. Frye and/or her attorney, who drafted the Citizens’ Plan on her behalf," reads a portion of the complaint.

"Mr. Sherman, for example, seems unable to discuss the Citizens’ Plan beyond personal attacks against [Briggs]. Mr. Goldsmith’s office, despite being legally obligated to render an 'impartial analysis' of the Citizens’ Plan, has been an advocate against it for months, prominently promoting the office’s opposition on its website and allowing the top deputy involved in the 'impartial analysis' to argue the office’s position in the media. All of that is perfectly acceptable for private advocates, but it is illegal when it’s being done by government officials who are themselves charged with not prejudicing the initiative process."

A judge is expected to review the writ of mandate in the coming weeks and a decision will be made as to whether any changes should be made.

UPDATE 9/8, 10:50 a.m.

In a September 7 court hearing, Superior Court judge Jay Bloom ruled in favor of Frye and the Citizens’ Plan. According to the Facebook page for the Citizens' Plan for San Diego, Bloom found that the title the city attorney’s office created, “Tax and Facilities Initiative,” was not accurate and will be changed to the “Facilities and Tourism Tax Initiative.”

"Unlike the city’s original wording, describing Measure D as a ‘tourism Tax' accurately reflects that the new revenues are not earmarked for any particular purpose, are available for any general-fund purpose, and therefore need only a simple majority to pass."

Another sticking point, ruled Bloom, was the ballot argument authored by San Diego city councilmember Scott Sherman. The argument included a claim that if approved, Measure D “could force Comic-Con to leave.”

The statement, however, failed to address Comic-Con’s own press release, which stated that the measure would “have no effect on the organization’s decision to remain in San Diego."

UPDATE 9/8, 1:10 p.m.

City attorney spokesperson Gerry Braun disagrees with the Citizens’ Plan Facebook post. In a series of tweets Braun stated that Briggs and Goldsmith worked out an agreement together and judge Bloom signed off on the order. The case is now dismissed with each side paying their own costs.