SDSU, fed up with Elliott’s obstructionism, decided it could wait no longer and opted instead to submit its own Purchase and Sale Agreement (PSA) for the City Council’s consideration.
City Attorney Mara Elliott and the Union-Tribune‘s editorial board have teamed up to block the City of San Diego from implementing the voter-approved plan for San Diego State University (SDSU) to expand in Mission Valley. After providing some background, I’ll explain the play they’re running together.
Approved in November 2018 by nearly 22 points over rival SoccerCity, the “SDSU West” plan authorized the City to sell the Qualcomm Stadium site to SDSU in exchange for construction of the San Diego River Park at no cost to municipal taxpayers, restoration of a contiguous portion of the San Diego River, and limiting future development on the site to educational purposes.
Elliott filed two frivolous lawsuits in an attempt to prevent voters from having a say – costing taxpayers nearly $600,000 to cover the winners’ legal bills – and criticized the SDSU West proposal extensively in the run-up to election day. The editorial board urged voters to reject SDSU West.
Even after a decisive “yes” from voters, Elliott remained undeterred in her efforts to derail SDSU West’s vision for Mission Valley. For example, she insisted that all negotiations between the Mayor’s staff and SDSU be conducted with her in secret, despite the fact that the parameters of the relationship had already been publicly spelled out in the ballot measure. She also refused, without a legal basis, to allow any member of the City Council to observe the negotiations. Council members complained for months about being kept the dark.
In November 2019, one year after the vote, the City Council took charge and directed Elliott to take the substantive deal points negotiated by the City’s and SDSU’s representatives and put them into a formal contract with all the necessary legal language. It was supposed to take a couple months. To help speed things up, the Council authorized Elliott to hire outside expert lawyers initially costing $250,000, but now costing up to $400,000 due to overruns.
There’s one intervening event I should mention: I filed papers to run against Elliott last July; we will face each other in the general election later this year. I got into the race not merely because she has proven herself to be incompetent as the top municipal attorney, but because she has so politicized and misused the office that it no longer functions as a government law office should.
Elliott’s tool of choice is chief of staff Gerry Braun, who used to work for the Union-Tribune, has never gone to law school, and has no law license to lose when he does things that would get licensed lawyers hauled into disciplinary proceedings before the state bar. Members of the City Council are so frustrated by Elliott’s ineptitude and politicization of the office that they have initiated the process for asking voters to eliminate her position; that did not happen with any of her predecessors.
Despite having been involved in the first 12 months of secret negotiations; despite having the benefit of top-dollar outside lawyers to assist with the finishing touches; despite having considerable additional time to get the job done, Elliott still had not delivered a contract to the City Council by this past Cinco de Mayo. That’s when SDSU, fed up with Elliott’s obstructionism, decided it could wait no longer and opted instead to submit its own Purchase and Sale Agreement (PSA) for the City Council’s consideration.
The Mayor and the Council President realized they had to distance themselves from Elliott, lest they be branded as co-conspirators, and called a special meeting for May 2
Elliott responded by attacking SDSU, and by refusing to turn over any legal documents as a way of preventing the City Council from promptly putting the matter on its agenda (due to City rules requiring documents to be ready when the agenda is published).
SDSU responded by attacking Elliott for acting in bad faith and persisting in her efforts to derail what the voters put in motion. It became crystal clear on May 19 that SDSU was right and that Elliott’s refusal was petulant and political, for that’s when one of her deputies admitted to the City Council that the legal work had already been completed (though still under wraps). By May 21, the Mayor and the Council President realized they had to distance themselves from Elliott, lest they be branded as co-conspirators, and called a special meeting for May 29 so the City Council could consider SDSU’s PSA (i.e., even without the contract they requested from Elliott).
Enter the Union-Tribune‘s editorial board.
On May 22 at 6:34 p.m., the board published an editorial titled, “With its track record, San Diego shouldn’t rush into the SDSU West deal.” The editorial pointed out that SDSU’s PSA had been put on the agenda despite numerous “warnings” from Elliott. The board claimed it was unfair to accuse Elliott of bad faith “absent any indication she is not just doing her job,” adding that “there’s nothing showing Elliott has ulterior motives.”
The board is keenly aware of the mountain of evidence that Elliott is not doing her job and in fact has ulterior motives. The editorial is disingenuous.
First, the “warnings” mentioned in the editorial were spelled out in two memos totaling 106 pages released to the Mayor and City Council well after 5:00 p.m. on May 22. How could the editorial board have digested the memos’ contents and written such a lengthy editorial just 90 minutes later?
The answer is obvious: Elliott had leaked the memos to the board in advance, even before she gave them to the Mayor and City Council. By giving the board a sneak peek in order to get a supportive editorial, Elliott is not “doing her job” and is instead acting with the “ulterior motive” of self-promotion.
Second, Elliott had Braun working the phones to the board days before it published its editorial. Why is her chief of staff calling former colleagues and urging them to side with his boss? Since it’s illegal for lawyers to undermine their clients, Braun was tapped for the task because he has no law license to lose, because he has friends on the board, and because Elliott desperately needs a positive press story to counter her many reported failures. To wit: approving the purchase of the unfit-for-occupancy 101 Ash building without the proper ownership disclosures or due diligence ($100 million and counting); approving the purchase of a sky-diving facility without the proper appraisal ($7 million and counting); approving the secret streetlight-surveillance contract with General Electric while owning its stock ($30 million and counting); approving an illegal, no-bid contract for tracking short-term vacation rentals ($2.9 million); trying to gut the law that requires the government to disclose public records and then having Braun try to destroy evidence of her doing so; not investigating child-abuse allegations; and so on.
Lawyers put their malpractice insurance on the line when they sign off on the final product. The City’s outside lawyers are not signing off because they know Elliott’s politically motivated work product would not withstand legal scrutiny and they are not prepared to vouch for it.
Third, the only organized opposition to the SDSU West proposal comes from labor unions who want the City Council to impose contractual requirements on SDSU so that construction workers are paid prevailing wages on everything SDSU builds in Mission Valley, including student and faculty housing that is subject to different state laws. These unions have endorsed Elliott for re-election, which explains why she has objected: to give them leverage to extract from SDSU concessions to which they’re not legally entitled. This, of course, is part of Elliott’s broader pattern of soliciting endorsements from unions while they are negotiating with the City. After she lands their endorsements, she publicly pretends to be looking out for taxpayers but secretly advocates in favor of the unions when they demand more money; several such negotiations have wrapped up under her watch, while others remain under way, posing a huge conflict of interest. Given Elliott’s track record, it’s no stretch to think she’d withdraw her objections to SDSU West if the unions endorsing her likewise withdrew their objections.
Lastly, even though Elliott has been aided by $400,000 worth of outside lawyers with expertise in development agreements, not one of them has signed off on the legal memos Elliott released. That’s a red flag because lawyers put their malpractice insurance on the line when they sign off on the final product. The City’s outside lawyers are not signing off because they know Elliott’s politically motivated work product would not withstand legal scrutiny and they are not prepared to vouch for it.
None of this is news to the editorial board. In fact, the board appears so committed to covering up for Elliott that it misrepresented the facts. For instance, it recommended slowing down the process on account of the City’s “long and costly history of major mistakes because it hasn’t sweated the details.” The City definitely continues to make big mistakes, but that’s because of Elliott’s bad lawyering. The first two mistakes cited in the editorial – i.e., the sky-diving facility and the 101 Ash building – actually happened on Elliott’s watch, which the board conveniently neglected to mention; the others occurred between 1996 and 2002. Overall, the board preposterously implied that the 18-month process since voter approval has been a “rush.” The public deserved a reasoned editorial, but thanks to Braun, it got a whitewash.
With or without the SDUT editorial board’s assistance, it is wrong for Elliott to try to derail a process that voters put in motion and even worse for her to use Braun to surreptitiously do what she cannot lawfully do herself. It’s time to let the City Council decide – one way or the other – whether SDSU’s proposal is fair, equitable, and in the public’s best interest. Lawyers don’t always agree with their clients’ goals, but ethical lawyers set aside their personal views and do everything they can lawfully do to help clients achieve their goals.