Kevin Faulconer has ripped the cover of gentility from the obscure practice of tax-fueled mayoral favor-giving in exchange for city council votes, employed over the years to boost the political careers of council members, including the mayor himself when he represented Point Loma's District 6 on the council.
But did Faulconer violate state initiative laws in a way that could ultimately void the November electoral victory hoped for by his big money backers?
That's the megamillion-dollar question being asked by city hall insiders in the wake of Republican Faulconer's move to cut off public money for city projects favored by two Democratic council opponents of a $5-million special November election being sought by advocates of so-called SoccerCity, the venture seeking to privatize 166 acres of public real estate in Mission Valley currently occupied by Qualcomm Stadium.
After a June 2, 8-to-1 council vote to defund a $5-million special election this November for SoccerCity's privatization initiative, Faulconer struck back late Friday, June 9 by strippping a total of $580,780 in "unallocated discretionary funding"for the districts of council members Barbara Bry and Chris Ward, according to his website.
To reinforce his message, the mayor also removed $413,000 that had been previously budgeted to pay for a new roof for the Bay Bridge Community Center in Barrio Logan, in the eighth council district of Democrat David Alvarez, another opponent of Faulconer's special election plan. In addition, the mayor cut "$66,086 for a consultant for the newly-formed Homeless Committee as this temporary group is only scheduled to meet four times and sunset in 2018." The committee is a pet project of Democrat Ward.
“This City Council can stand in the way of progress or give voters the chance to create more jobs, fix our roads, reduce homelessness and build a world-class development that will generate millions of dollars for neighborhood services and public safety," says the online statement by Faulconer in favor of the SoccerCity plan and an unrelated hotel tax increase measure being pushed by the mayor for the same ballot.
But Faulconer and his top staffers — who hail from the world of public relations, not the law — may have misread their hand, say those familiar with the complex jumble of state initiative law by which SoccerCity proponents hope to end-run the city council and gain control of the lucrative Qualcomm property for a massive commercial and residential development project.
The key to the project’s ultimate legality, if it is ever approved by voters, will lie in whether the costly petition drive organized and paid for by SoccerCity's Mike Stone and his wealthy associates was really a project of private citizens — as required by state law — or instead was actually a measure propelled by the mayor's office through the back-door use of city staff time and tax money, including the mayor's threats and blandishments.
"It would be considered campaigning for City staff to provide input intended to make a voter initiative more or less appealing to voters or use City resources to the advantage of the proponent. Using public resources to provide an advantage to the proponent of a voter initiative is campaigning because it amounts to 'taking sides,' even when the activity is not directed at voters," opines a March 31 legal opinion from the office of Democratic city attorney Mara Elliott.
"If City input gives proponents of a voter initiative an advantage over opponents or other measures, a court may decide that the process is no longer neutral. Opponents could challenge a voter initiative, arguing that it was really a City measure and therefore invalid for not complying with procedures like [the California Environmental Quality Act]. There is no case, to date, that has so ruled, but the courts have not given clear guidance."
As first reported here in February, Faulconer held a string of closed-door meetings with Stone and his backers, including the mayor's campaign funder-in-chief, downtown developer Morgan Dene Oliver, regarding the SoccerCity initiative.
After Stone and fellow SoccerCity proponents went public with their controversial initiative bid in late January, Faulconer showed up at an endorsement rally, saying, "It’s so much more than an opportunity for a new sports team. It’s an opportunity to create jobs, to revitalize Mission Valley and see it become an economic driver.”
As the city attorney's memo notes, the mayor's words in favor of the project alone don't break the law, with an important caveat. "City staff can campaign as private citizens, but no City resources can be used to campaign for a voter initiative."
In addition to Faulconer's use of public money to incentivize the city council to call for a costly snap special election widely believed to favor the electoral chances of SoccerCity developers, there may be another rub.
Emails retrieved from the city following a request under the California Public Records Act show that representatives of the SoccerCity project were given an inside track and city staff time by Faulconer and his staff to gather information from city offices during preparation of the initiative.
"I would like to include a review of the City Real Estate Assets documents to make sure that we have any off-record encumbrances that may have been filed with the city clerk’s office but not recorded." FS consultant Gary Hus wrote city real estate assets chief Cybele Thompson last December 1, a day after Faulconer's meeting with SoccerCity representatives.
Notes Elliott in her legal opinion, "City staff must always be careful to preserve a neutral process in executing official City processes, such as compliance with City rules and regulations."
If the SoccerCity plan ever passes muster with voters, it is considered likely that the measure’s well-heeled opponents, who have already anted up more than $1 million to defeat it, will use the city attorney's rationale regarding Faulconer's well-documented use of city money for the measure to ultimately torpedo it in court.