April 13 2016 01:11 PM

Goldsmith, Briggs bicker about legal path to a stadium vote

City Attorney Jan Goldsmith and Mayor Kevin Faulconer assess the leaker damage
Photo illustration by John R. Lamb

A government is the only known vessel that leaks from the top.

—James Reston

When it comes to making big decisions, San Diego frequently seems to walk into a wall. The battle over whether, where and how to build a new stadium for the Chargers is a classic example of this phenomenon.

As Spin Cycle types away Tuesday morning, activist attorney and Citizens Plan author Cory Briggs is holding court with reporters to detail the latest municipal slam into an immovable object, which he has attributed to a “vacuum of political leadership.”

This is a direct smack to the forehead of Mayor Kevin Faulconer, with whom Briggs has clashed frequently and publicly. And it’s a sock to the gut of City Attorney Jan Goldsmith, who issued a sky-is-falling rebuke to the Briggs hotel-tax-hike ballot measure late Monday before heading off to warm up the crowd gathering in Mission Valley to cheer on the presidential prospects of Sen. Ted Cruz of Texas.

While Faulconer—who initially preferred Marco Rubio—now claims he’s a John Kasich guy, there is little other light separating the mayor and Goldsmith, particularly in their quest to crush November ballot measures that would revamp how hotel taxes are administered and spent.

“This riff is a long time in the making,” Briggs told Spin Cycle Monday. “It’s anything to try to fuck things up, gain more leverage over us.”

Briggs maintains that the panic attack from City Hall was hastened by a unanimous closed-session decision recently by the Tourism Marketing District board to settle a long-standing legal fight with Briggs over the validity of the TMD’s very existence. (A settlement has not been confirmed by the TMD.) Briggs, on behalf of his client San Diegans for Open Government, has sued the TMD and the city, arguing a 2 percent surcharge approved by hotel owners for tourism promotion that’s tacked on to the city’s 10.5 percent hotel tax is illegal.

Goldsmith’s memo, requested by the mayor, claims that the Briggs measure is so fraught with legal risks that the San Diego City Council might even want to consider declining to put it on the November ballot.

“If a legislative body refuses to place an initiative on the ballot, even though it qualified with sufficient signatures, that refusal may be validated by a judicial declaration that the measure should not be submitted to voters,” the memo states.

Briggs said such “advocacy” statements indicate that the intent of the memo is to head off an initiative the mayor would prefer to dodge while he’s running for re-election.

“This all shook out when it became clear the TMD was prepared to settle, including an endorsement of the Citizens Plan,” Briggs said. “I’m told that was a unanimous decision, pending sign-off from the mayor. Instead, he requests the city attorney to issue this memo, which is a conscious effort to torpedo our initiative. But it turned out to be a dud.”

In the memo, Goldsmith refers to what he calls a “poison pill” provision in the measure, which would “void the entire initiative if any substantive provision is successfully challenged in court.”

“This is a very unusual provision,” Goldsmith noted. “An initiative would typically state just the opposite to ensure that all of its terms are not jeopardized by one legal issue.”

To which Briggs responded, “I agree! It is totally unusual. This is a compromise, where I was trying to make sure everybody was happy and nobody thought they’d get double-crossed. All parties have to hang together to make this work. We didn’t want someone turning around and suing over a portion of the measure. This was actually designed to protect taxpayers.”

Briggs said he believes the outcome the mayor seeks is quelling both the Citizens Plan—which would raise the hotel tax to 15.5 percent and create incentives for hoteliers to voluntarily pay for a convention center expansion while forging a path for a new stadium downtown without use of taxpayer money—and a competing Chargers initiative that would boost the hotel tax to 16.5 percent but mandates use of the visitor-tax increase to help pay for a hybrid stadium/convention center annex.

On Monday, Faulconer issued a statement calling the Briggs measure “well intentioned,” but gloomily added 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.”

Of course, the same could be said of the hoteliers’ decision to add the tourism promotion surcharge to customer bills, which is teetering on the brink of legal extinction. Goldsmith has spoken publicly in the past about those concerns, and yet the city continues to defend that practice in court. Tuesday afternoon, Goldsmith issued a statement claiming his office had requested a copy of the settlement but had only received “an agenda of topics” for an upcoming meeting.

Briggs noted that the memo Goldsmith issued Monday actually had been leaked to the media last month but was retracted when it was pointed out that it made no mention of recent court developments suggesting such initiatives would not require two-thirds passage by voters. Briggs contends his measure, as a general tax hike, requires only majority approval. The Chargers, meanwhile, are reportedly assuming theirs—a special tax for specifically laid out purposes—will require two-thirds to pass.

Goldsmith in his Tuesday statement said a draft of the memo was shared with “proponents about three weeks ago” seeking a response to legal issues. “We have not heard from them since,” he said.

“It’s been quite clear for some time that the NFL is not coming to Mission Valley,” Briggs said, “so what’s the outcome if Mission Valley no longer has the Chargers but the city still has $25 million to $30 million in bond debt for Qualcomm Stadium? The mayor wants to sell the property to his developer friends so they can build condos.

“The goal is to keep voters from voting,” he adds. “The mayor knows the TMD board wants to settle, and all he’s saying is ‘Let’s get together on April 15.’ He’s just kicking the can down the road, hoping neither measure makes it on the ballot.”

Maybe that explains why the mayor has agreed to only three televised debates with his two opponents—city lifeguard sergeant Ed Harris and former state Assemblywomen Lori Saldaña— leading up to the June 7 primary.

As Harris poked on Twitter, “Crime’s up, infrastructure crumbling, no leadership on convadium. I wouldn’t want to debate either…”


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