In response to a request by the city of San Diego's human resources director for a legal opinion, City Attorney Jan Goldsmith on Oct. 8 concluded that Mayor Jerry Sanders need not allow city departments to compete against private companies when it comes to deciding who'll perform various city services. When asked by a voiceofsandiego.org reporter for a comment on Goldsmith's opinion, local labor chief Lorena Gonzalez said it was a clear-cut case of “political bullshit.”
Tony Krvaric, chairman of the San Diego County Republican Party, quickly commented on Twitter about Gonzalez's “potty mouth.” While we wonder if Krvaric would have been so offended if it had been Gonzalez's predecessor, Jerry Butkiewitz, whose mouth was in the potty—or if it's just women that he doesn't think should say things like “bullshit”—for the moment, we'll focus our attention on whether Gonzalez was right in her assessment. Was Goldsmith's opinion “political bullshit”?
Of course, as Donald Rumsfeld might say, Goldsmith's true motive is unknowable, so proving the “political” part will be a tough task; evidence will be merely circumstantial. Analyzing the bullshittiness is much easier.
First, some background: In 2006, Sanders got behind a ballot measure, Prop. C, pushed by San Diego's business establishment, that would allow him to outsource some city functions to the private sector. Sanders and other supporters called it “managed competition” and assured voters that city workers would be allowed to compete for the right to hang on to their jobs; if they could do these tasks more cheaply than private companies, great. CityBeat and others called it what it was: “outsourcing.” We believed it was set up for city workers to lose.
Now, three years later, Human Resources Director Scott Chadwick has asked Goldsmith: “What are the legal parameters of the City's authority to outsource services currently provided by City employees under the City Charter” as amended by Prop. C?
In his legal analysis, Goldsmith takes a quick route to supporting Sanders' authority to do what he told us he wouldn't do. The city attorney essentially focuses on one sentence in the City Charter: “A City department shall be provided with an opportunity and resources to develop efficiency and effectiveness improvements in their operations as part of the department's proposal.”
“Some might argue that this sentence requires that departments be provided an opportunity to submit proposals,” Goldsmith writes. “But, the Charter does not state that a ‘City department shall be provided with an opportunity and resources to submit a proposal.' It states that departments will be given an ‘opportunity and resources to develop efficiency and effectiveness improvements in their operations.'
“The ‘opportunity and resources' requirements,” Goldsmith continues, “only applies if a proposal is submitted. The sentence begins that the City department ‘shall be provided,' but ends with the limiting phrase ‘as part of the department's proposal.' Therefore, whatever it is that ‘shall be provided' applies only if there is a department proposal. There is nothing in this sentence... that requires a department proposal [emphasis Goldsmith's].”
Well, that's one way of interpreting it. Another way to interpret it is by giving more weight than Goldsmith does to the ending phrase, “as part of the department's proposal.” One could say that language assumes there to be a department proposal. It doesn't say, “as part of the department's proposal, if there is one.”
It seems to us that the city's employee unions would have a reasonable legal case if Sanders declines to consider a bid from a city department that's in danger of losing control of a service, particularly if a judge is interested in the voters' intent when they passed Prop. C. After all, the backers of the measure went to great lengths to assure voters that this process would create healthy competition between the public and private sectors. We believe that in the absence of unambiguous language, any interpretation of the City Charter should give weight to how voters were sold on the measure. Otherwise, what we have here is a brazen bait-and-switch.
Is it political bullshit? We don't know. During his campaign for city attorney, Goldsmith said he wouldn't be a policymaker and wouldn't engage in politics. In our view, his critics have a reasonable charge of playing politics through rather shallow (bullshit?) legal analysis.
Meanwhile, what he's done is give Sanders some political cover to do precisely what he was intending to do: outsourcing jobs with decent pay and benefits to private companies that offer far less.
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