Roundtable: Filner, Goldsmith, Chalk, Yoga
SAUER: Joining me are Dave Rolland, Dorian Hargrove of the San Diego Reader, and Tony Perry. Let's start with what some have called a shakedown by mayor Bob Filner of the developer, Sunroad enterprises. They wanted to get easements on public land adjacent to a project it's building in Kearny Mesa. The key words are Filner, $100,000, developer, gift, investigation. But the story is more complicated and nuanced. Dave Rolland, you and CityBeat offer a pretty thorough look at the holistic view of this thing. Start us at the beginning. Why did you call it a shakedown in quotes? ROLLAND: Well, that's just the term that's being thrown around, that's just the term that I used to start the conversation, I guess. We put it in quotes because we're not sure what it is. It was either a donation from a developer out of the goodness of its heart to the City of San Diego. SAUER: And the mayor characterized it that way. ROLLAND: Yeah, or it was a direct payment for favorable action by the mayor. And it started -- I'm not sure where you want to begin. It could begin with some something called a permit plan check, a bureaucratic step in a development process where they make sure all the Ts are crossed and the Is are dotted. SAUER: We should say this is a residential complex they're building in Kearny Mesa, and they built the first phase, right? So they had a problem with the second face. They wanted to encroach on this park a little bit. ROLLAND: There's two right now under construction, two large apartment buildings on either side of a 2-acre park, called Centrum Park. They're to the north and south. And during this routine check of the permit, Sunroad says it was discovered by city staff that they needed 15 feet between each of these buildings and the park for fire safety reasons. SAUER: And that's state building code. ROLLAND: Yes. And they only had 6 feet on either side. So Sunroad needed more space, needed to encroach on the public park, which is public property. So they needed the city to give them permission, and 9-foot easements to get that 6 feet to 15 feet. SAUER: So to continue with the cob instruction, they needed the city to give them a little bit of land. PERRY: I love a good City Hall scandal as much as anybody else, but isn't this the kind of thing that happens every day? People who own property come in and say I'd like to do this or that. Property has rights and responsibilities. How about donating to the school or setting back or building less dense development? ROLLAND: The problem is that's usually handled on the front-end. And this was handled on the back-end. PERRY: Yes, indeed. ROLLAND: That is the problem. SAUER: So we're in council member Lorie Zapf's district. And she gets a call saying we've got this problem. ROLLAND: And he wasn't getting anything from parks and rec or city services. There were also some conversations early on in March with the mayor's office. They weren't getting anywhere, so they went to the council member's office. And Lorie Zapf is a pro-business council member. So she basically took the request. It was basically in two parts. It was grant this easement, which is essentially a gift of public property, 18 feet of public property. And also to waive the council property that would make this gift legal. PERRY: Where is the mayor's good friend the city attorney in all of this? Did he look this over or is this a problem that's come up because of the estrangement between those two worthies? ROLLAND: I'm not sure. SAUER: And he looked it over later. He issued a letter in June. HARGROVE: He didn't focus on the giving away of the easement or the fact that that was their proposal. SAUER: Normally you would go to city development services and say what are the rules. They're asking for a variance. But we got to Lorie Zapf's committee, and she didn't do all of that. ROLLAND: The land use and housing committee, which she chairs, and this is in her district, she brings it to her own committee, and there was no staff present, no city staff to answer questions or give feedback or talk about the rules and what you might want to ask for something in return if you're going to give over public property. There was none of that. And in fact this was Sherri Lightner, City Council member Sherri Lightner, who said I would be delighted to make the motion to give you this easement that you want. They were really bending over backward for the developer. SAUER: And that wasn't the final word. It had to go to the full council, and when it got there, the council says unanimously, let's go ahead with this deal. ROLLAND: It did. But it was interesting. Marti Emerald and David Alvarez were questioning it a little bit. Marti Emerald said I don't like this giveaway of public land, and we ought to get something in return for it. She said directly to Tom Story the vice president of development for Sunroad, you should go to the mayor's office and real estate management department and negotiate some kind of price! SAUER: Talk about a deal. So how do we get from there, and the mayor vetoed this saying this isn't in the public interest. And then the story shifts where, jeez, we're going to sell the override of this veto, or sell him going along with overriding the veto, and there's $100,000 that's going to come in. Not to the mayor, but to a couple pet projects that he had. ROLLAND: This is Filner's story. Tom Story from Sunroad contacts the mayor's office, and at this point he's talking to Allen Jones who is the then deputy chief of staff for the mayor's office and says, look, I've got the votes in the City Council to override a mayoral veto. This is in the bag. It's mine. But if you want to get something out of this to make it square, to make it better for the public, sure, we can do that, I suppose. And Bob Filner then says basically it turned into an offer for a donation. And from Allen Jones' telling of the story, it was just $100,000 to the city's general fund. And he recommended that it be put to use somewhere in Kearny Mesa, close to the development. Somehow, I don't know how this happened, but basically Bob Filner turned it into as you say, $100,000 for a couple of his pet projects. SAUER: What should he have done? What could we have done here differently to make this a little more seamless? HARGROVE: It seems to me like going through the actual process would have been the safest route to go, as far as if you're using city land and you have to unfortunately go through the real estate department. PERRY: Bob is doing all sort was things, reaching down in things that should be done at other levels. Bob charges in and makes it better for all of us! ROLLAND: And he could have had somebody staff that. PERRY: Sure. He's worrying about an easement in a city park? ROLLAND: His office knew that it was coming up to the council committee. But he didn't staff it. And Lorie Zapf didn't make any effort to ask for city staff. SAUER: It's very complicated. And I'm sure we haven't heard the end of this story. [[[NEW SEGMENT]]]. SAUER: Another story involving the mayor and city attorney, Jan Goldsmith. If the seas have been rough lately for Bob Filner, the city attorney has been out there tossing about as well. The feud between the mayor and the city attorney crested last week when the mayor objected to the presence of a gone city attorney in a closed meeting. Dorian, you wrote this story in the Reader. Why didn't Filner want this attorney in, and tell us about their history. HARGROVE: Well, it goes back to the tourism and marketing district squabble. Andrew Jones, the consecutive assistant to Jan Goldsmith was present at those meetings, and apparently it didn't go good. The following day or two days after one closed session meeting, Mr. Jones came out and basically said that he was disrespected. At one point he mentioned that he was ordered to the back of the room, likened it to the Rosa Parking back of the bus issue. SAUER: Which is a sore issue with the mayor because he goes back to the civil rights movement in the 60s. HARGROVE: At that time, there were positions identified in the budget to be cut, and one of those just happened to be the consecutive assistant, Andrew Jones. So I think that was -- SAUER: The kindling was in place. [ LAUGHTER ] SAUER: Tell us about this particular closed session. HARGROVE: There was a closed session meeting -- SAUER: And they have these closed sessions so they can talk freely about legal strategies and negotiations and lawsuits, etc. It's not keeping the public out. It's part of how they operate. HARGROVE: And it was on June 18th. And it got off to a rough start for mayor Filner. It starts at 9:00, he's not there. ROLLAND: Which is typical, by the way. [ LAUGHTER ] HARGROVE: Todd Gloria started the meeting. I'm not sure why, but there was a court reporter present at the meeting. The consecutive assistant was also there. So mayor Filner first objects to the meeting was started without him. Then he objects to Mr. Jones being present. So there comes a back and forth. And it ended up where mayor Filner had Mr. Jones escorted out of the meeting. PERRY: And Goldsmith now says none of these closed sessions until Bob learns to play well with others? ROLLAND: Not Harris his employees or something. PERRY: So what does that mean? They can't meet blind closed doors? ROLLAND: As far as any lawsuits or anything pressing, yeah. They have to be discussed behind closed doors. HARGROVE: The labor deals are done because that all gets hashed out in closed session. SAUER: As you noted, they had a court reporter there. So they released notes of this meeting, but they're redacted. That means some parts are blacked out. HARGROVE: That's where it gets interesting. Some of the statements, and this was just from council members and other people present, were absent. And from what you can tell by reading the transcript, they all have to do with this fiasco going on in this meeting. So two days later, June 20th, Jan Goldsmith releases these transcripts. His office said it was in response to a public recordings request, which I think all of us know, if you submit a public records request, you're lucky to get -- PERRY: You grow old waiting. [ LAUGHTER ] ROLLAND: And you're lucky to get a response within two days. And the attorney tory Briggs followed a lawsuit and in it he said hearing a response in two days is rare. PERRY: He's still trying to find out how the police chief decided over the line drinking is going on. SAUER: That's a whole different show. [ LAUGHTER ] HARGROVE: And Cory does like to throw wrenches into the machine. SAUER: So you asked to have all of these notes released. Not the edited versions. HARGROVE: There have been lawsuits before which say basically if portions of nonagenda items discussed on the closed session, during the closed session meetings are released, then that means all of the nonagenda discussions are also open to be viewed by the public. The city attorney disagrees. I think that's where it comes into a legal argument there. Obviously this could be a Brown Act violation. SAUER: The open records act. HARGROVE: Yes. SAUER: And you said Cory Briggs, are the attorney is going to take this up and file lawsuit and try to get these released. HARGROVE: He filed suit already, and it's in the works. SAUER: Now, Todd Gloria released a statement, he's the president of the City Council. What did he say on Wednesday? HARGROVE: One of the reasons why -- I guess the response to Briggs' request for more of the closed session transcript from the city attorney's office was that it's got to be released by legislative authority. Which means obviously a vote would have to be taken. I asked Todd Gloria if any vote had been taken, and the office said there has been no such vote, and that was it. So that kind of brings into question, how did the records get released in the first place if the City Council did not vote on them? SAUER: In terms of the council's role, are they commenting on this? Release the full version? Don't release the full version? It was the entire council that was party to this meeting, right? HARGROVE: So far everyone has been pretty quiet about the whole thing. Gloria's response was the only thing I've seen. I don't know if anyone else has asked any of the other council members. But him being the council president as well, he's the one docketing items and would initiate the vote. PERRY: Do you get the sense that the council members are afraid to oppose Bob Filner? Afraid to be in the same room? To have their name 2-3 paragraphs away from his? HARGROVE: Judging by some of the transcript, some of them want to -- they're not afraid. They actually probably want it. ROLLAND: And some council members like Scott Sherman and Kevin Faulconer have been very, very vocal. There are three Democrats on the council that are allies with Bob Filner and were before he was elected. PERRY: And fill in line on not overriding the veto on the city attorney's budget, right? ROLLAND: Say again? PERRY: They fell in line, the Democrats refused to back up the Republicans in overriding what even Todd Gloria said was a punitive action in the mayor trying to cut the city attorney's budget. ROLLAND: Yeah! You've got people like David Alvarez and Myrtle Cole who's just been seated, you need six votes to override a veto, so they're close. If they get one more vote. HARGROVE: During the meeting, Scott Sherman walked out. I don't have the exact quote. But he was pretty much appalled by what was going on. PERRY: Well, he's making a little rep for himself as the anti-Filner. HARGROVE: Yes. ROLLAND: And there's also Kevin Faulconer who I believe released the telephone voicemail from Tom Story on the Sunroad thing we just talked about that basically makes Bob look bad. SAUER: There's some real palace intrigue going on here. And stepping back to the voicemail, I don't know how that gets to Kevin Faulconer's office when the council member involved was Lorie Zapf! HARGROVE: I submitted a public records request for that. I received it one day after the UT did. ROLLAND: Imagine that. HARGROVE: Coincidence, probably. [ LAUGHTER ] HARGROVE: So I got the same message the next day. And my public records request was to all City Council members if they had any correspondence with Tom Story or Sunroad. I'm still waiting to hear Lorie Zapf's response to that. ROLLAND: It does appear, going back to the Sunroad thing, it does appear like some people are leaving trails, leaving bred crumbs for anybody who might be investigating to take a look. SAUER: We'll leave it there on this episode. [[[NEW SEGMENT]]]. SAUER: So many controversies, so little time! We've covered Sunroad-gate, now let's turn to chalk-gate! A man named Jeff Olson is among the legions of Americans fed up with the antics of bank of America. He repeatedly wrote messages in water-soluble chalk in front of the bank's branches. They got upset and leaned on the city attorney to do something. Tony, what was he writing and where? PERRY: This is a Navy town. Of the Navy has a very strong rule that it teaches officers, particularly senior officers, you can delegate authority, you can never delegate responsibility! I don't think Jan Goldschmidt had any idea this case, one of hundreds, thousands that moved through out of his office, had any idea till it exploded. They filed misdemeanor charges against Mr. Olson claiming that he was a vandal, and they were backed up by some videos and laws that said even chalk messages on the sidewalk can be construed as graffiti! His messages were bad bank! Bad bank, bank of America! Kind of clever, I suppose. He's from the Occupy San Diego movement. And he fought. And once it got out, it just looked foolish, and it made Jan Goldsmith look foolish. Though he knew nothing about the case until it arrived in court. SAUER: I wonder about that. At least he's guilty of being tone deaf. PERRY: Well, he's a busy man, and they've got what? 300 attorney over there? They're moving stuff through. It's "let's make a deal time." They offered him a deal. Plead out. SAUER: Tell us about that PERRY: The second deal was plead out, please! We'll give you an infraction. SAUER: But the bank wanted $1,600 in restitution! Let me stop. We've got plenty of kids out there, 17 year-olds who's like to take a hose and a scrub bush, and take some soluble chalk, how does it take this bank $1,600? PERRY: They were trying to send a message, Mr. Protestor, go to somebody else's bank. And I suppose they could have bargained it down further. But they went to court. And the jurors looked at that and said no, no, I don't think so. And found him innocent. Quickly innocent! And the mayor, of course, had the old 1960s activist was calling this a stupid case, a waste of money. He refused to abide by the judge's gag order. So score one in chalk, I guess, for the mayor in this battle of the titans against the city attorney. SAUER: Let me ask you something. On the gag order. PERRY: In a misdemeanor suitcase! [ LAUGHTER ] SAUER: He being the defendant wanted to raise a 1st amendment issue. A civil liberties case. I have the right to -- PERRY: That's the kind of thing you raise at sentencing time. I did it, but really -- the angels were on my side. ROLLAND: Not only did the judge say we're not going to allow you to use the 1st amendment -- invoke the 1st amendment as part of your defense, he muzzles everybody and says you can't talk about it! PERRY: I think in a different context, this would be called jury nullification. The man did leave these messages on the sidewalk. There is law that says that is graffiti. You can be convicted, and there was pictures of him doing this, and they said no, let's fight again another day on something important. So the jury had the last laugh on this, I think. ROLLAND: I'm interested where this is going to go. It brings up some interesting issues, like somebody on Twitter on saw who said something like, what if it was a restaurant writing mean messages about a rival restaurant in chalk in front? Is that okay? What's allowed? PERRY: Slander and libel. There are laws. ROLLAND: And I think the jury basically says come on! Don't give us this. PERRY: If it had been something other than a bank, maybe, an old folks' home or -- banks are not real popular these days. SAUER: Especially bank of America, with a poor reputation. PERRY: And the bank contacted the city attorney. This great, big, enormous rich bank found time to call the city attorney's office of the City of San Diego about this case. HARGROVE: It was interesting when you said the restitution, during the testimony, the vice president of global security for bank of America actually said it took seven or eight employees to first of all just report the fact that there was graffiti left outside on the sidewalk. And then they would have to call an outfit in Santa Fe Springs to actually contract the work out. So they were saying basically it was anywhere from $200 to $500 for each, what? 3-foot chalk drawing? SAUER: So you can't get that kid out there with a hose and a scrub brush? PERRY: They could have sent out a message to their mortgage holders, come over, help us clean this, and we'll ratchet down your mortgage. [ LAUGHTER ] HARGROVE: There's a lot of questions as well. Jeff Olson was also pickets before he decided to start drawing chalk slogans. And the vice president of global security had a runin with him. And it was written about by a writer for the Reader. And I don't think Mr. Freeman really appreciated it. PERRY: And the Occupy San Diego folks, who were busted, are a whole bunch of them, the city attorney hasn't been real hard on them. Process the cases, plead out. Let's not worry about this one. So this one was sort of very atypical that they appeared to take this hard-nosed -- and I think that plays into the mayor's annoyance, why did you decide to grind Mr. Olson into dust on this thing? HARGROVE: Well, they did have a previous case where it was an occupy activist. Mr. Olson wasn't really part of the movement, he agreed with it, and yeah. There was an 18-year-old girl, And she had written occupy Wall Street in the civic center and filmed it. And she got arrested, and she was in jail for three days. And they pressed charges. They offered her a plea deal a few days before. And she denied it. She rejected it. And the day before trial, they decided to dismiss all the charges. The attorney for that case, Jeremy Warren actually said that the city attorney Goldsmith was very, very involved in all Occupy activism cases. SAUER: All right. We're going to have to leave it there.
Mayor Filner's Own Sunroad Controversy
In April, San Diego City Council Member Lorie Zapf brought a request to the council's Land Use and Housing Committee for easements related to a project in Kearny Mesa, in her district.
The development project by Sunroad Enterprises was to have a park, and Sunroad wanted nine-foot easements on two sides of the park. The City Council waived its own policies to give Sunroad the easements.
When the easement agreement landed on the mayor's desk, he vetoed it because, he said, it bypassed the city’s Development Services Department and gave away city land with nothing in return.
With encouragement from Council Member Marti Emerald, Sunroad offered the city a donation through the mayor's office of $100,000 for a cycling event and a veterans plaza in Ocean Beach with the understanding that the mayor wouldn't fight the council's attempt to override his veto.
Filner accepted the donation. Then he gave it back because, he said, there was a quid pro quo.
10 News and U-T San Diego obtained a voicemail from Sunroad’s Tom Story to Council member Kevin Faulconer reporting the money was delivered and the mayor would support the veto override.
Investigations are ensuing and questions abound, including whether the mayor engaged in a pay-to-play scheme and whether the whole thing was a set-up.
Goldsmith's Brown Act Controversy
Also a complicated story.
Last month, Mayor Filner had police remove Deputy City Attorney Andrew Jones for disrupting a closed-session meeting and accused him of leaking information.
Two days later, City Attorney Jan Goldsmith released redacted notes from the meeting in response to a public records request (CPRA) from the press, an unusually rapid city response.
Now, Goldsmith is refusing to release the entire transcript, which is a problem, both for the press, who would like to know exactly what happened and what was said by all parties, including members of the San Diego City Council, and for Goldsmith.
Goldsmith's problem is attorney Cory Briggs. He says that under the Brown Act, Goldsmith’s office can’t release a transcript of a closed session to unauthorized persons. without a vote of the city council. Todd Gloria has stated there was no such vote. Therefore, Goldsmith was not allowed to release the redacted portions to the press, either.
Briggs filed suit against the City Attorney's office on Wednesday for violating the Brown Act. Goldsmith has announced he will suspend closed-session meetings until Filner stops throwing his people out of meetings.
Chalkgate and Yoga Controversies
The City Attorney’s prosecution of Jeff Olson on 13 counts of vandalism for writing in water-soluble chalk on a Bank of America sidewalk and parking lot has been washed away.
The jury acquitted Olson on all counts in spite of Judge Howard Shore's refusal to allow a first amendment defense. After it lost the case, the City Attorney’s office blamed Olson for going to trial instead of accepting the pre-trial offer.
The offer included 32-hours of community service, attending an 8-hour seminar by the "Corrective Behavior Institute," paying Bank of America $6,299 for having to wash off the chalk, waiving all Fourth Amendment rights against search and seizure and surrendering his driver's license for a three-year period.
Olson’s attorney, Tom Tosdal, said on KPBS Midday Edition that Goldsmith’s office prosecuted the misdemeanor because Goldsmith was doing the bidding of Bank of America. Goldsmith's office said chalk drawing was graffiti and graffiti is vandalism, even if it washes off.
The failed prosecution also fanned the flames of the feud between Mayor Filner, who derided the prosecution as a waste of time and money, and the city attorney.
Finally, Judge John S. Meyer ruled this week that, while yoga itself is based on religion, the yoga classes currently taught in Encinitas elementary schools have been stripped of religious meaning and language and are therefore compliant with the First Amendment.
Dean Broyles of the Christian National Center for Law and Policy had sued the school district on First Amendment grounds, saying yoga is religious expression. He says he will appeal.
Producer's Note: Time ran out, so the panel did not get to the yoga story.