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Citizens Plan For San Diego Brings 'Significant Risk,' City Attorney Says

San Diego City Attorney Jan Goldsmith at council meeting February 25, 2014.
Milan Kovacevic
San Diego City Attorney Jan Goldsmith at council meeting February 25, 2014.

Citizens Plan For San Diego Brings 'Significant Risk,' City Attorney Says
Citizens Plan For San Diego Brings 'Significant Risk,' City Attorney Says GUEST:Jan Goldsmith, San Diego city attorney KPBS invited attorney Cory Briggs to participate in this interview and he declined.

You are listening to KPBS midday edition I'm Tom fudge. The citizens plan is a proposed San Diego ballot measure now Ginny signatures that would raise the hotel tax to pay for an expansion of the convention center downtown. That's the short story. The San Diego city attorney says San Diego and could end up voting on a lot more than that and much of the initiative he says violates the law. The citizens plan is politically controversial as well as it could conflict with the plan by the Chargers to combine a convention center expansion with the new football stadium also the expansion proposing this initiative would not be connected to the existing convention center on the bayfront as many people think it should be. The official name of this initiative we are talking about is the citizens plan for the responsible management of major tourism and entertainment resources. Quite a mouthful. The author of the memo is citing legal concern about the citizens plan was written by San Diego city attorney Jan Goldsmith joins me now on the phone. Mr. Goldsmith think you very much. It's a pleasure. One editorial note we invited attorney Cory Briggs the man behind the citizens plan to join us on the program and he turned us down. We will hear some excerpts from what he said at a news conference this morning. Starting with you Mr. Goldsmith tell us why you think this initiative is legally flawed. I know you have a lot of points to make it give us a couple of key examples. Well there is a provision in this initiative that is very unique and I've never seen it in 40 years as a lawyer. Because the poison pill provision because it says if any provision is held invalid than the whole thing is invalid. That means anyone provision is invalid the whole thing goes down. This is a tax increase it requires the city to collect taxes, tens of millions of dollars to taxes in NT is part of it to build a convention center and part of it goes into [ Indiscernible ] coffers to reimburse them for marketing. If years down the road after lawsuit one of the provisions is held invalid the city is left holding the that. The taxpayers have to make that up I don't know what we do with bonds that are issues. I don't know that we do with the taxes that have been collected and spent. It puts the city at risk. We had a similar situation with the convention center several years ago when they wanted to increase the tax on that. The lawyer came down from San Francisco and said, hey we did this in San Jose and our office is not biting. We said we don't want to sign off on it if we filed the lawsuit determine its validity and that don't collect the tax until the court says that this is valid. When I was overturned the city didn't have to pay back any taxes because it was protected. Here there is no protection and so we went through the initiative we found six basis for -- that are clearly, legally questionable. One of them is crystal clear. Two of them are clear -- cleaner. The fourth one is test the boundaries of law it will probably go to the Supreme Court. Which one is crystal clear? Which one is obviously illegal? There's a provision in the city charter as well as state law that says that all tax funds revenue must first go to the city's treasurer. Fennec is allocated. This initiative allows the hotel operators who collect tax revenue from the guests, the hotel guesses of the pocket the money and reimburse themselves for certain expenses. That's illegal under our charter and its illegal under state law. That's one is -- there really isn't any doubt you just can't do that. Is another issue that you brought up. You said that initiatives in the city should only address one issue. To this initiative not do that? It doesn't. This is something that's been brought up by other lawyers. You know how in Congress you have this Christmas tree legislation, everybody throws their stuff and piece of legislation that's because they don't have a single subject rule in the Constitution. California change that it says that you can only have one subject. The reason for that is they don't want to have trade-offs. Voter should be faced with okay you increase taxes and I will give you this or we will give you something for Mission Valley from San Diego state if you agree to have a convention center downtown away from the bay. I said that this would raise hotel taxes to build a convention center expansion. What else does it do? What are other issues? It also goes to -- let me go through them. A prohibits expansion of the convention center on its current site. It authorizes the say on such conditions for development [ Indiscernible ] it creates a new environmental law to replace SQL in a downtown area, interesting how you do that. It direct use of support district finds concrete environmental reserve funds in Mission Valley, addresses the land-use needs of San Diego State University and other UCSC and other educational institutions. I don't see where the single subject is. This goes way beyond anything I have ever seen in legislation or an initiative. This one is mind-boggling how they can throw that into one initiative. I think I already said that Cory Briggs the attorney who is behind this initiative held a press conference this morning. Let's hear one of the things he said and get you to respond. The memo is not a serious legal memo, it's a political document. It appears to me that it's the beginning of a process that the city intends to implement to prevent the voters from once again weighing in on big issues affecting the city's future. If you take a look at the memo one of the options discussed is the radical and undemocratic idea that the city would simply refuse to put the citizens plan on the ballot if we get enough signatures. That is unprecedented to my knowledge. There is Cory Briggs saying that your legal opinion under buys democracy in his opinion but also that last point he said that you were thinking of actually not putting this on the ballot even if it gets enough signatures. I think it's a nonsense statement. We issued a report that 25 pages and has 153 footnotes. Everything we say is documented. Our lawyers went through this very carefully. This is what the components of the initiative should've done in the first place you for they drafted. A good lawyer will research the legal issues before he puts something on the ballot. They were so interested in getting all the special interests together for this to support this initiative he forgot about protecting the city. I told you about what we did in the convention center several years ago. Nobody was there to protect the interest of the city. Nobody was looking out for the city and when I talked about the city on talking about the taxpayers. We pointed out how the city is at risk. Mr. Briggs in the components should say you want to do that to the city. We shared a draft of this initiative with the proponents about three weeks ago we asked them for their input. The lawyers said we hadn't really looked at this stuff we would like some time to look at it and maybe do some things to address them. We said okay we will hold off and they didn't do anything. [ Indiscernible - multiple speakers ] Our job is to look at for the interests of the cities and the taxpayer. Let me ask you specifically about the last thing he said. He said you have suggested that even if they get enough signatures the city attorney in the city might prevent this from going on the ballot. Mr. Briggs -- I would rather have Mr. Briggs respond to the legal issues we raised. Maybe you can ask and the question about each of these six basis and get a legal response with his authorities. One of the options? We discussed all of the options. One option is for the them to not submit the signatures. They can do what they want to do in this initiative in other ways. I am happy to work with them on that. I would love to see QUALCOMM for educational purposes of San Diego state any Riverwalk. There's a lot of things that could be dumb -- done with a different type of initiative. I think their goals are amicable -- are good. That's one thing copy other option is for any lawyer could file a lawsuit to prevent this from going on the ballot after the signatures are submitted. The city could do that and has in the past and one. Having to do with Petco. A could go on the ballot and then after what someone would do the honors of taking this thing out. Whatever happens you can't escape the legal issues. He can talk politics all he wants this isn't about politics. This is about a thorough, legal memo that they should have done before they decided to promote this thing. Lets me allow Cory Briggs to say one more thing. Here he's talking about why they put in the poison pill aspect. First of all the memo return -- refers this poison pill. The citizens plan because of the compromise contains language that says if any portion of this agreement is not lawful the whole thing goes away. The reason we did that is because when you have a compromise everybody needs to trust one another, they people are going to do it they say and no one is going to sandbag anybody. Numerous lawyers, numerous people who were part of the coalition are thinking about coming onto it reviewed that everybody agreed it was the right thing to do. More importantly it protects taxpayers because of any portion of the citizens plan to legal recently revert back to the way things are is now. Very quick response to that Jan -- Nobody is looking out for this -- city. The city wasn't considered. The poison pill and validates this thing the whole thing included the tax increase in a could be years down the road after litigation in the meantime it requires the city to collect the increased taxes and spend it to either the hotel operators pockets got to reimbursement for certain costs and some of it goes to the convention center, cutting. If two years down the road or 10 years down the road party initiative is found invalid the city's general fund and taxpayers will be on the hook to make up that illegal tax it was collected albeit the tax is fine except that the whole thing is now invalidated. It puts the city at risk. All the lawyers who looked at it were looking at it from the special interest coalition know be looked at it from the city's point of view. Nobody researched it. Jan Goldsmith has been my gaseous the San Diego attorney. Thank you very much. Thank you Tom for letting me have a few words on your show. The back you are look --

An initiative that would raise hotel room taxes in San Diego, prohibit a waterfront expansion of the convention center and clear the way for San Diego State University to expand onto Qualcomm Stadium property is flawed and brings "significant risk" to the city, City Attorney Jan Goldsmith said Monday.

Among other things, Goldsmith pointed to what he called a "poison pill" provision in the Citizens Plan for San Diego that says if a section is ruled invalid in court and appeals are exhausted, the rest of the initiative will be invalid. He said a poison pill was unusual and could bring financial risk to the city in the event of litigation.

Goldsmith identified six areas of the Citizens Plan that could be legally questionable.

The initiative was put forth by former City Councilwoman Donna Frye and lawyer Cory Briggs, who have been collecting signatures for several months, but haven't submitted petitions to get it on the ballot. They need at least 66,447 valid names to force the City Council to adopt their proposal or place it before voters.

In his 25-page opinion, Goldsmith also said the initiative could violate the single-subject rule, which limits ballot measures and laws to one issue.

The initiative says the subject is the responsible management of the city's tourism and entertainment-related resources, but within that framework provisions involve raising taxes, the future of the San Diego Convention Center and Qualcomm Stadium property, and direction to the Port of San Diego on using funds, he said.

About Goldsmith's assessment, Briggs told City News Service that "he is wrong, period."

Mayor Kevin Faulconer, who asked for Goldsmith's opinion, called the Citizens Plan "well intentioned," but that "the city attorney's analysis shows that this appears to be a plan that could tie up the city in court for years at great cost to taxpayers."

The Chargers plan to begin collecting signatures later this month on an initiative for the proposed downtown stadium project that is similar to the Citizens Plan in some respects. Team representatives met today with Citizens Plan supporters and, on Twitter, Briggs called the talks "productive" and said they would meet again.