4 p.m., Jan. 22
Did interim mayor Todd Gloria have the authority to rescind stop-use order for Jack in the Box?
City charter states interim mayor does not have discretionary power.
The City Attorney's office has issued a memo detailing the powers, or lack of, held by San Diego's interim mayor Todd Gloria.
The August 29 memo explains the powers as laid out in the city charter.
“During the time when an appointment or election is pending to fill a vacancy in the Office of the Mayor.” In general, the Council President has authority to:
?(1) Supervise the staff remaining in the Office of the Mayor.
(2) Direct the City Manager in managing those affairs of the City that are under the purview of the Mayor.
(3) Exercise other powers of the Mayor when required by law, including circumstances where the expeditious approval of a legislative action is necessary to meet a legal requirement imposed by a court or another governmental agency.
The Council President’s authority is described as “limited” and does not include the power of veto or any other discretionary privilege enjoyed by the Mayor. During this time, the Council President does not lose his or her rights as a Councilmember."
It is that last paragraph that has some North Park residents up in arms.
Even before any allegations of harassment, Filner had sided with the residents of North Park in their fight against what they believe was an attempt to get around zoning laws. Later, as the mayor was buried under allegations of sexual harassment, Filner's Chief of Staff Lee Burdick expressed frustration at the fast-food chain's reluctance to obey zoning laws.
"The more we look into the processing of this application, the more frustrating it is for us and, I am sure, for you and your neighbors," reads an August 1 letter from Mayor Bob Filner's Chief of Staff, Lee Burdick.
"The Mayor directed the issuance of a stop-work order on this project precisely because the City Attorney had opined that the process used to issue the permits was inconsistent with the City’s Land Development Code (“LDC”). However, under the LDC, a stop-‐work order must be approved by the City Attorney’s Office (“CAO”) before it can issue. After the Development Service Department forwarded the Mayor’s request for a stop‐work order to the CAO for review and approval, the City Attorney advised that Jack‐in‐the‐box was too far along in the construction, the company would likely sue the City if we stopped the development, and they very well might win."
But once construction ended, Filner made a last ditch effort to resolve the issue.
That didn't fly with the interim mayor.
“While Filner was Mayor, his staff approved the permit for the renovations on Jack in the Box in North Park. Before leaving office for the final time today, Filner issued a Stop Use Order to Jack in the Box for the same project that he had approved," a statement which appears to contradict those given by Burdick as well as Development Services employee Tom Tomlinson.
But even if Gloria is correct that Filner erred by issuing the permits, he still doesn't address how he is able to use discretionary powers despite not having discretionary powers to use.
The August 29 memo from the city Attorney's Office goes into further details describing the role of interim mayor as a "caretaker" until a duly elected mayor takes office.
"Taken as a whole, by ensuring that the day-to-day administrative functions and legally necessary acts are covered but otherwise limiting the transfer of the Mayor’s veto and high-level decision-making (discretionary) powers, the Charter creates in the Council President the role of a caretaker, ensuring that the City continues to function unimpeded during the temporary vacancy. Thus, the Charter conveys broad authority to the Council President when it comes to managing the affairs of the City, but limits the authority to exercise the Mayor’s other discretionary powers to those instances when it is “required by law.”
”Said another way, under the Charter, the Council President may exercise the Mayor’s authority to approve a resolution or ordinance when the exercise of that power cannot wait because of a legal deadline."
One possible loophole for Gloria, according to the memo: "the Council President is empowered to act in place of the Mayor when the situation cannot wait for the election of the new Mayor, and when a failure to act would place the City at a legal disadvantage."
In fact, the stop-use order could result in a potential lawsuit from Jack in the Box. That disadvantage is wiped out when taking into consideration that the City is already fighting a lawsuit from residents. Of course, that logic begs the question as to why the City would prefer to fight against the residents as opposed to defending them.
I am waiting to hear back from the City Attorney's Office for an explanation. The story will be updated when that occurs.