Earlier this week, San Diego Newsroom presented part 1 of its interview with City Attorney Jan Goldsmith.This second installment compares his previous relationship with former Mayor Jerry Sanders to that with current Mayor Bob Filner and discusses the Port Commission controversy, the Balboa Park flap and whether Goldsmith plans to challenge Filner three years from now.
Michael Rosen (MR): It’s not as if Mayor Filner is the first mayor you’ve interacted with. Can you compare and contrast your relationship with Mayor Filner to your relationship with Mayor Jerry Sanders?
City Attorney Jan Goldsmith (JG): With Jerry Sanders, we were still very independent, we said no and issued guidance. But the difference is, Sanders consulted with us beforehand and tried to get our guidance on how to do what he wanted to do. When we raised legal issues that he or his staff didn’t agree with, they’d come to us and they would say, “You’ve got this wrong because you haven’t considered these facts, you haven’t considered this, that or the other thing.” We’d take a look at them. They worked with us. We looked at it and tried to get it right. But if we said, “No, you can’t do that,” or “You can’t do it that way,” Sanders respected that. I’ve been practicing law for 37 years, and I’ve had many clients over the years. There’s not a client out there who likes to be told “no.” Clients want you to just bless what they want to do. It’s natural. Jerry Sanders had it, Bob Filner has it. In the final analysis, when we decide we’ve considered everything you guys have submitted to us, but we still don’t think it can be done that way legally, they would accept it. They understood that we had an independent obligation to make the final decision on the law. Filner does not recognize that, nor does he consult with us up front. And so there’s a huge difference.
MR: What’s been going on with the Port Commission? What can you say about the opinion about the controversy that your office just issued, which reversed several years of precedent and held that the mayor cannot veto Port Commission appointments?
JG: I wrote this opinion. The City Attorney’s Office’s initial opinion was in 2006, that there was a [mayoral] veto. There was not much analysis. It was just listed. And since 2006, the mayor has been given a veto right on every appointment. Our office issued an opinion earlier this year which continued with that legal opinion. I took a second look at it when the legislative counsel opinion came in. I do not agree with our January 17 opinion or the opinion since 2006. And so I reversed it. I’m very, very comfortable with the opinion I wrote. I’ve written hundreds, if not thousands, of opinions as a judge. I viewed it the same way I would view it if I were sitting as a judge on the issue. I’m very comfortable and confident of my position. But, I changed it, no question about it.
MR: What kind of backlash do you expect to result?
JG: I don’t know, and I really don’t care. My job and my lawyers’ job is to try to get it right, and that’s what we’ve done. This is a tough environment, and it’s been tough since the beginning of the year. It’s the kind of environment that almost invites mistakes, not only by our office but by the executive branch. It is a very difficult environment, and so my job is to try to get it right and try to focus on quality and let the chips fall where they may. It’s a solid opinion, and there’s not much I can say more than that I got it right and I exercised my authority as the city attorney and overruled the six years of opinions that were not correct.
MR: Your office has recently indicated a possible resolution to the Balboa Park remake plan, and specifically the Plaza de Panama issue. Can you explain what’s going on there?
JG: We had raised the issue of a project-specific ordinance that would allow the City Council to amend its ordinance to allow the Jacobs plan to move forward. We were asked by Council President Todd Gloria to provide a memo as to how that would happen, and that’s what we did. People need to understand that this is a quasi-judicial matter, approval of a project. Quasi-judicial means that you rely on the applicant to submit an application, and then you as the City Council have to consider both sides and you act almost as a judge. It’s different from other areas when the Council might approve a road or something like that when there’s an application. The applicant in this case was a group known as the Plaza de Panama Committee, the committee that was working with Irwin Jacobs. In order for the Council to consider this project-specific ordinance, the Plaza de Panama Committee would have to amend their application to ask for an amendment of the ordinance. So that’s the only way. The City Council can’t do that. My office can’t do that. It has to come from a third party, otherwise you’re not acting in a quasi-judicial manner because you’ve got to remain unbiased, sort of like a judge doesn’t act like a plaintiff or a defendant. You have to detach yourself from that, and it’s got to be the applicant. The PDP Committee decided not to include a project-specific ordinance, and they considered it, but decided not to. And they’re not going to do it now, from what I hear. So it’s nice to submit the memo about how you do it, but it’s probably not going to happen because they would have to file their application and amend their current application.
MR: Do you have any sense of why they wouldn’t want to do that?
JG: Well, Irwin Jacobs has said he’s kind of finished with it, and that’s probably the reason. Keep in mind what this is about. There is a city municipal code ordinance which essentially says in layman’s terms, you can’t alter a historical structure unless you can show that essentially there’s no real usefulness of your property without doing that—reasonably useful. The original application for PDP could have said, “We’re going to exempt this project from this ordinance.” They chose not to, and instead said it’s not reasonable. They said, “We have to touch the Cabrillo Bridge, which is a historical structure. The reason why we believe we can change this bridge is because Balboa Park’s core at the Plaza de Panama is at a level of service ‘F’ traffic-wise, just too much traffic congestion. And the reasonable use of Balboa Park requires a better traffic flow and pedestrian access to the Plaza de Panama exclusive of cars.” So they said, “We can meet that standard because we need to change the bridge to have a reasonable use of Balboa Park.” Judge Taylor said, “You know something, I’m not even going to consider that this is Balboa Park. I’m going to consider this the same way I consider anything else, and you have to show a very high standard, and I don’t think that’s the standard. I don’t think a level of service ‘F’ is enough to show the impact on Balboa Park.” What they could have done [was] submit an application saying, “We’re not going to meet the standard. We want to change the ordinance.” They chose not to. That’s just strategy. Maybe it’s because it’s harder to amend an ordinance than to get an exemption. So what I’m saying is they can still do that. They’d have to amend their application. And then the City Council would determine that based upon a quasi-judicial approach.
MR: You have said at times that we have a mayor who acts like he wants to be city attorney, as opposed to former City Attorney Michael Aguirre, who sometimes acted like he wanted to be mayor. But what about you? Have you given any thought to challenging Mayor Filner in three and a half years?
JG: I’ve said many times I don’t want the job. I’ve already been a mayor. I was mayor of Poway. I don’t want the job, so no. I know people are talking about it, but no, I’m not going to run for an office I don’t want to serve in. It’s nothing against the City of San Diego. It’s just that I like the law. My passion has been the law. Even when I was in the legislature, I served on the Judiciary Committee and loved it. My passion is the law, and that’s what I want to do, and I don’t really want to be mayor. So no, it’s not going to happen.