By Geneviéve Jones-Wright and Paul Pfingst
Last week, San Diego City Attorney Mara Elliott threatened to prosecute a reporter after he asked her to comment on information in allegedly confidential reports provided to the City Council for a secret meeting.
Less than 24 hours later, after being caught and receiving an avalanche of legitimate criticism from the media and open-government advocates, she retracted the threat and admitted the threat “never should have been sent.” Her obvious disregard of the First Amendment left many people asking: “What was she thinking?” Here is the likely answer:
On July 23, NBC San Diego published an extensive expose about all the ways the city screwed up its purchase of the 101 Ash Street building and put taxpayers on the hook for costly renovations. The asbestos-riddled, functionally obsolete downtown high-rise was purchased despite the many red flags staring Elliot in the face.
On July 28, Elliott went into a closed-session meeting with the Mayor and City Council to discuss what the city’s outside lawyers had concluded through their audit. One day later, another NBC investigation revealed the contents of confidential audit reports written by outside lawyers hired by the city.
According to NBC, “(t)he reports found the City Attorney’s office failed to spot what were clear, ‘exculpatory’ signs that let both (sellers) off the hook for much needed repairs,” adding that “the terms of the lease agreement were, in fact, disproportionately unfavorable to the city, on the specific issue of the exculpatory provisions in favor of (sellers).” In short, the city purchased a money pit.
After an NBC reporter asked Elliott to comment on the reports, she sent the reporter the letter threatening a criminal investigation of him.
Elliott has gone to extraordinary lengths to keep the Mayor, City Council, and public in the dark about being called out for incompetence on the Ash Street transaction (and others) by her opponent, taxpayer advocate Cory Briggs. Obviously, her first instinct, to use criminal prosecution as a tool to command NBC’s silence, didn’t work.
Her threatened misuse of her prosecutorial powers was bad enough, but then Elliot started another witch hunt. As Voice of San Diego recently reported, this is the third she has launched into people leaking information critical of her performance. The latest step to avoid disclosure of her office’s incompetence revealed something more troubling about her commitment to transparency and ethics.
On the same day Elliott threatened the reporter, she also threatened the Mayor, his staff, and members of the City Council in case they were involved in the leak. Her lengthy memo about the legal consequences of leaking the outside lawyers’ allegedly confidential reports, which she admitted were e-mailed to the recipients, began with this startling revelation: “The email could only be opened by the person to whom the email was addressed. Similarly, the confidential Closed Session materials attached to the email were restricted: the recipient could not print, forward, or save the confidential materials, and the recipient lost access to these materials immediately following Closed Session.”
This approach to informing the decision-makers is apparently new, having been started by Elliott earlier this year, around the time of the primary election. For decades before, the City Attorney’s office provided hard copies of reports to decision-makers for their closed-session meetings. Those hard copies could be retained or at least duplicated by recipients so that they could be referred to later for implementing sound city policies.
This new policy of information-hoarding is unacceptable on many levels. It means Elliott is unilaterally requiring her client, the City Council, to make important choices about critical municipal issues based on written information given to them for minutes and then quickly taken away. The motive for Elliot to give her clients materials without any ability to retain a copy seems to be to allow Elliot to later escape responsibility for the materials’ contents, or to hide information from the public.
In short, the reason to do this is to avoid being later held to account for bad advice. It is no wonder that a super-majority of the City Council has argued for the elimination of an elected City Attorney who serves as a legal advisor to the city for the day-to-day business of local government. Elliot has united both Republicans and Democrats on this issue — a rare event indeed.
It can’t be determined how NBC got the outside attorney’s report documenting her office’s failure in the Ash Street building purchase. If it’s true that nobody on the council had a hard copy or the ability to make a copy of the outside lawyers’ reports, then the only people who could have given NBC a copy are the outside lawyers or lawyers in Elliott’s office.
It is highly unlikely that any lawyer would risk losing his or her license by sharing allegedly confidential reports with the press in violation of the attorney-client privilege; that tends to rule out the outside counsel as the leak. There are a few exceptions to the privilege, but the one that is best understood by lawyers is this: there is no privilege when the client seeks the lawyer’s assistance to carry out or plan a crime or a fraud.
So, it is possible that a conscientious lawyer working for Ms. Elliott, either inside or outside her office, believes that a cover-up is being planned or has been carried out and thus shared the reports with the press. We may never know. But it appears clear that great efforts have been taken to conceal a terrible waste of taxpayer funds.
The City Attorney threatened the NBC reporter because she did not want voters to know about the outside audit and its documentation of bad lawyering by her. That would make her look bad during re-election season. The voters deserve better. They can decide in November how much openness and government transparency we are entitled to, especially when taxpayer funds are wasted.
Geneviéve Jones-Wright is a former public defender and is now the Executive Director of Community Advocates for Just and Moral Governance (MoGo). Paul Pfingst is the former San Diego County District Attorney and is now a partner at Higgs Fletcher & Mack LLP.
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