Mara Elliott warns city council on Brown Act

Illegal secrecy

San Diego city council members are at risk of breaking the state’s so-called open meeting law if they ask too many questions during closed-door sessions with mayor Kevin Faulconer about his behind-the-scenes dealings to sell the former Qualcomm Stadium to San Diego State University. That word comes via an April 4 memo to the council from city attorney Mara Elliott regarding the Brown Act, which constrains what topics can taken up at non-public council meetings. Some council members are said to fear that Faulconer might take a dive owing to campaign cash he got from employees of the law and influence peddling firm of Sheppard Mullin, retained by the state university system to lobby the mayor for a sweetheart deal with the city. Others want to wheel and deal over downsizing a public park for the riverfront site to make more room for real estate development. But that kind of activity is verboten per the opinion.

A Brown Act exception allows the council to shut out the public from its deliberations concerning real estate deals, but the exemption must be “narrowly construed,” Elliott opines, citing a 2002 appeals court ruling in a Brown Act case brought by San Diego civic whistle-blower Mel Shapiro over subsidies for mega-millionaire John Moores to build downtown’s Padres ballpark. “The allegations of the complaint now before us are that the City Council, between December 1998 and October 1999, carried out a number of closed session meetings dealing with negotiations for real estate acquisitions pursuant to the redevelopment plan, and that such meetings were inadequately noticed and exceeded the scope of the notice given,” the court held. “We do not denigrate the important consideration of confidentiality in negotiations. However, we believe that in this case, the City Council is attempting to use the Brown Act as a shield against public disclosure of its consideration of important public policy issues, of the type that are inevitably raised whenever such a large public redevelopment real estate based transaction is contemplated.”

City Hall’s bad guys

San Diego interim city auditor Kyle Elser is out with his fraud hotline report for the first quarter of 2019, including a lengthy list of misdeeds by unidentified city workers. “An allegation of theft of time through excessive personal internet use was investigated and determined to be substantiated,” the document says. “The department took the appropriate corrective action with respect to the identified City employee. In addition, staff was reminded of City policy and supervisors will increase monitoring activities.”

Another hotline complaint charged that an unidentified civil servant “appears to take long breaks and may be underworked.” Following an investigation, the charges were “substantiated regarding unreported outside employment.”

A case “regarding abuse and hostility from a group of employees was investigated and resulted in appropriate corrective action,” and “an allegation regarding unsafe driving by a City employee in a City vehicle was investigated and resulted in corrective action.”

A raft of other suspicious cases are still pending, including charges of “fraudulent contract and billing practices,” which auditors “referred to a department for additional investigation based on our preliminary findings on 9/12/18.” Other cases marked “Open/Unresolved” by the report include that of “a City employee frequently sleeping in a City vehicle for over an hour at a time,” and “a supervisor who approves eight hours of work for employees who only work two to three hours.”

SDGE’s terminal franchise problem

With the future cloudier than ever for San Diego Gas and Electric’s role in San Diego’s energy future, the big power utility faces new uncertainty negotiating a soon-to-expire franchise agreement with the city. But ratepayers may also have plenty to lose, and taxpayers are set to fork over millions of dollars to retain a negotiating team reporting to mayor Kevin Faulconer. “The City of San Diego is looking to engage a consultant/professional to serve as the City’s lead in the development of the City’s strategic pathway and negotiation approach on the next Gas and Electric Franchise Agreement,” says an April 12 request for proposals for what the mayor’s office calls a Strategic Pathway and Negotiation Consultant. “This lead will assemble a team, depending on the City’s planned and agreed upon approach, to assist in the execution of this scope of work. The City anticipates that the process will commence as soon as possible and continue through the end of 2020. During this period of engagement, the lead consultant will be responsible for various deliverables and will be working closely with a cross-functional team represented by City staff designated by the City’s Chief Operating Officer under the direction of Mayor Kevin L. Faulconer.”

The costs only start there, as the new consultant will “advise the City in its efforts to select other consultants and professional services who will conduct a valuation of existing electric and gas infrastructure owned by SDG&E which services the City.”