Ex-councilmember Frye sniffs conflict, sues city

In a newly filed lawsuit, former San Diego city councilmember Donna Frye says the city has paved the way for large law firms to represent the city and its opponents in court without the public's awareness.

At issue is San Diego's "Council Policy on Conflict of Interest Waivers."

In the past, law firms that have represented the city have been required to obtain a waiver from the city to represent parties that are also suing the city. While the firms are still required to obtain the waivers, a new council policy adopted in August allows those waivers to be issued without council approval and without public notification.

According to the new policy, the city council would vote on the waiver if the city attorney's office approaches them with the potential conflict or if four or more councilmembers request a hearing.

In July of this year, one month before the council adopted the policy, Frye submitted a public records request asking to view the conflict-of-interest waivers.

The city responded to that request but left out certain waivers that Frye knew could present problems.

She alerted the city attorney's office prior to the council hearing the matter.

In a July 26 email to city attorney Mara Elliott, Frye wrote "there is no reason that the authority to review and approve should be delegated…. I am requesting that any and all conflict of interest waivers be heard by the full council and that the authority to do so not be delegated to the office of the mayor.

"The council as a legislative body represents the public and when you delegate your authority, the public’s right to know what our elected officials are doing and why you are doing it is also delegated. In other words, you are limiting our ability to participate and have shown no reason why this is necessary."

Frye did not receive a response. On August 25 she wrote another letter. Elliott called her a few days later. In an August 30 email, Elliott agreed to look into other options.

"I think we discussed some good potential solutions," wrote Elliott. "I’ll do some research on my end and circle back as soon as possible. In the meantime, the City agrees to toll the statute of limitations through October 31, 2017, so that we can continue to work together on this."

Frye and Elliott were unable to reach an agreement. In her lawsuit, Frye included examples of large firms that have asked for waivers publicly in the past. Among the firms to have asked to waiver potential conflicts of interest include Colantuono Highsmith and Whatley.

The city has awarded that firm numerous contracts in recent years. Most recently, on October 24, the council awarded Colantuono Highsmith and Whatley $300,000 to defend it in a lawsuit that San Diego Unified filed against the city and county for failing to allocate redevelopment funds.

Other firms to have asked for waivers include Procopio; also, Cory, Hargreaves, and Savitch, the second-largest law firm in the city and now employer of former city attorney Jan Goldsmith.

Latham and Watkins, another firm to obtain waivers, has represented the city in the past and now represents SoccerCity developers who want to redevelop the former Qualcomm Stadium site to include a new soccer stadium.

Said Frye via email, "I believe the action taken by the city council majority (with Alvarez, Gomez and Ward opposed) violates City Charter Section 216.1 because they made no findings stating the interest to be protected by delegating the authority to the mayor and city attorney to execute future waivers on the City’s behalf.

"The new policy ignores the will of the voters when they approved City Charter Section 216.1 in 2004 that says in part: 'A statute, court rule or other authority adopted after the effective date of this Section that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.'

"Public disclosure of who is receiving waivers to the City’s conflict of interest laws is important and necessary because the public has a right to hear, be informed and participate in decisions about why a conflict of interest waiver is justified. That would be satisfied by public deliberation of the issues involved."