Bad government policies can have serious consequences. They can cost taxpayers money, and frustrate citizens who want access to public information that tells us why those policies failed and the price of those failures.
That’s happening now with the city of San Diego’s trash fee.
Instead of designing a budget for the new trash program that stayed within the estimated $29 monthly fee, a City Council majority last year added unnecessary new services and additional employees that increased the fee to $43.60.
Taxpayers revolted. Facing both a ballot measure and a lawsuit that could have invalidated any trash service fee, the council in May approved a compromise that significantly reduced both the fee and the scope of service.
But the road to compromise has been expensive. It required thousands of hours of staff time, and the legal settlement includes a $1 million payment to plaintiffs’ attorneys Mike Aguirre and Mia Severson.
Taxpayers will also shoulder the cost of an outside law firm that assisted the city attorney’s defense of that legal challenge.
Getting even basic information about those payments has been a frustrating exercise. Like too many other city officials, City Attorney Heather Ferbert routinely erects roadblocks to avoid disclosing public records that should be available for the asking.
On June 4, I made an informal request to the city attorney’s office for the amount paid to the Jarvis Fay law firm and other outside consultants who helped defend the city in the trash fee lawsuit.
My request for information was made after the City Council settled the trash fee lawsuit. But Ferbert declined to provide any information about those payments.
Instead, her office told me to file a Public Records Act request — the default reply for any resident who requests even the most basic and readily available information.
In response to my formal request, the city attorney’s office produced two documents. The first shows that the City Council approved a five-year, $500,000 contract with Jarvis Fay in September 2023, one year after voters approved the trash fee. The second shows the council approved an additional $1 million for Jarvis Fay in April of this year, increasing the contract amount to $1.5 million.
The documents note that the $1 million increase “is necessary to allow (Jarvis Fay) to continue to represent the city in ongoing litigations specific to Proposition 218,” which is the state law that governed the trash fee ballot measure and provided a framework for legal challenges to its implementation.
That information was incomplete. It didn’t include pertinent details about how much of that available $1.5 million has been paid to the law firm, or how much Jarvis Fay has received specifically for work done on the trash fee lawsuit. The documents also don’t reveal if more fees and costs are due to Jarvis Fay that would exceed the $1.5 million.
But we can safely surmise that taxpayers have spent about $2.5 million in fees and costs for attorneys on both sides of the trash fee litigation. That’s five times the $546,000 cost of keeping open the 13 public restrooms the mayor closed to help balance the general fund budget.
Ferbert’s decision to withhold detailed billing and payment information to outside legal counsel cites exemptions in the state government code for “confidential legal communications,” “attorney work product” and “pending litigation.”
I’m familiar with the Public Records Act and I’ve talked with an attorney who specializes in public records law. I think the city attorney should have released more information, and that the legal settlement and the judge’s pending dismissal of the lawsuit render those exemptions moot.
I see no good reason for Ferbert to withhold information about the amount paid to date to outside legal counsel, the hourly fees charged by the Jarvis Fay lawyers, the number of hours they worked, and the cost of travel, meals and other expenses you and I have paid for.
Her refusal to disclose that information is another brick in the wall that keeps taxpayers away from information about how elected officials spend our money. And it’s the latest example of what the Union-Tribune denounced as “the bad faith of elected officials like San Diego’s mayor and city attorney to thwart our state’s transparency laws.”
When the judge formally dismisses the trash fee lawsuit — which should happen no later than Aug. 8 — I will appeal the Ferbert’s denial of my request for this information. If she stonewalls again, we’ll see what a judge has to say about it.
Krueger is a freelance journalist, community activist and Talmadge resident. He was one of 15 plaintiffs in the lawsuit challenging the trash fee. He had no role in legal strategy in that case and received no payment or benefit for his participation.
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