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Blog Archives - 2006 Fourth Quarter

 

The developers are counting on your apathy. 12/31/06

 
 

by Pat Flannery

The City Attorney has issued legal guidelines for the City Council's upcoming January 9th decision, regarding Navy Broadway. Here is the full MOL. It draws heavily on the Navy's Environmental Assessment (EA) dated June 2006. According to DSD this Navy document was not made available to them until November 25, 2006, more than a month after the October 19, 2006 Manis finding. That could become a key point on January 9th.

With the benefit of having read this June 2006 EA, the City Attorney's MOL clearly contradicts the Manis finding. It lists a whole range of major "changed circumstances" identified by the Navy, where Manis found none. The writer, Chief Deputy City Attorney Shirley Edwards, could not usurp the Council's authority to determine whether these changes are "substantial" or not, so she deferred to their decision on January 9th.

If you read the MOL carefully it is hard to imagine how the City Council will be able to ignore these "changed circumstances" and "new information" and uphold the Manis finding. This "new" information simply was not available to Manis on October 19, 2006 - or was it? It is very odd that Sanders' staff never saw that June 2006 Manchester seismic report or saw that June 2006 Navy EA. Both documents were "unavailable" to Manis until after he wrote his finding and until after Manchester donated $50,000 to Sanders' Prop C.


What part did the Navy play in these political shenanigans? How badly do the brass want those waterfront offices?

In a fit of patriotic fervor, after the 1914-18 World War, the people of San Diego "granted" the U.S. Navy the use of a valuable piece of public trust land on the waterfront. The Navy had urgently needed a pier and supply depot for their growing pacific operations and the San Diego people responded generously. They never imagined that the Navy would try to keep this public trust land for ever.

For millenia, long before the Romans, all river, lake and seafront land was public land. The reason: freedom of navigation was universally considered vital to commerce and defense. Nobody, not even the king, was allowed to own or control waterfront land.

Here in San Diego the U.S. Navy has broken that trust, sacred over thousands of years. By becoming a developer in its own right, the Navy has abused the power of its mission to defend us. It has taken our land for its own gain and comfort. It did so by the simple expedient of declaring that the land in question, Navy Broadway, is no longer "tidelands" because it has been "filled"!

That was the spurious argument used by the U.S. Court in its Memorandum of Decision and Order dated July 1, 1991. Read it again on page 7. It baldly states that public land ceases to be "tidelands" when it is "filled". If that flawed logic were applied everywhere "tidelands" have been "filled", there would be precious little "tidelands" left in the U.S.

Now r
ead the struggle of the people of Miami to preserve their bayfront. Note that the Navy commandeered it from the Miami people at the outbreak of WW II but gave it back to them in 1950. Quite a different story from San Diego. Look at their bayfront today:

Miami's Waterfront

 

Look at Chicago's lakefront today. Miamians and Chicagoans KNEW they deserved a waterfront park. We San Diegans are too shy to ask. So we get what we deserve.

Chicago's Waterfront

Look at San Diego's pathetic bayfront. This is the scale model proudly displayed in the downtown offices of CCDC as I write. What is wrong with us San Diegans? Why do we tolerate spineless City Councils one after the other? Where is our civic pride?

San Diego's Waterfront

The January 9th City Council session will settle the question once and for all: "do people matter in San Diego?", or is this just a "Navy town"? Is that the difference between us and Chicago and Miami?

In order to side with the Navy and its eager co-developer Doug Manchester, the City Council will have to make a highly moral choice. Each Member knows, as everybody knows, that this whole Navy Broadway affair has been rigged by the Navy. Its brass wants the best view in town. And they picked the perfect partner - Doug Manchester.

Instead of a bayfront park, Navy Broadway would become a warren of dingy offices, populated by a rabble of panhandlers, contractors who would hook a sewer pipe for a 1,000 bed Navy dorm facility to the storm drain and dump 14 million gallons of raw sewage into our bay. Anybody heard from the Navy on that? An apology maybe?

The big contractors of course will have bay views and private walkways to the Navy brass's bayfront suites. "Pappa" Doug will get what he wants: an endless stream of contractor wannabes, eager to rub shoulders with corrupt politicians in a controlled environment. Any politician worth his/her salt will want to have an office there.

So what do you San Diegans want? A nest of thieves, or a bayfront park? What does our City Council want? Assuming it is "ours". The moment of truth is on January 9, 2007.

If you wait to read about it in the newspapers, you already know the answer. The Mayor, the City Council, the CCDC, the Navy and its greedy co-developer Doug Manchester, are all counting on your apathy. On January 9th you will get the waterfront you deserve. On the other hand you could go down there and speak up. It would make a difference.
 

 
 

As far as I am concerned the people of California still own NBC. 12/26/06

 
 

by Pat Flannery

My thanks to Don Wood for sending me this U.S. District Court Memorandum of Decision and Order dated July 1, 1991. It makes interesting and timely reading.

Contrary to popular belief, that the City of San Diego freely gave "fee simple" ownership of the Navy Broadway site to the Navy in 1919, the truth is that the Navy took it by eminent domain in 1991.

The land was ours before we were the land's.
She was our land more than a hundred years
Before we were her people. She was ours
In Massachusetts, in Virginia,
But we were England's, still colonials,
Possessing what we still were unpossessed by,
Possessed by what we now no more possessed.
Something we were withholding made us weak
Until we found out that it was ourselves
We were withholding from our land of living,
And forthwith found salvation in surrender.
Such as we were we gave ourselves outright
(The deed of gift was many deeds of war)
To the land vaguely realizing westward,
But still unstoried, artless, unenhanced,
Such as she was, such as she would become

                                 Robert Frost

Here is Columbia in full flight, westwards to the Pacific. The Indians and wild animals scattering before her. In her train she brings covered wagons, stagecoaches, trains, telegraphs, homesteads and the civilizing plough.

Was "The land ours before we were the land's"?

The U.S. Judge who wrote the 1991 "Decision" certainly thought so.


For me the U.S. doctrine of Manifest Destiny ended when California became a State in 1850, on land Mexico ceded in order to end a war started by the U.S. over Texas.

"The Treaty of Guadalupe Hidalgo was the peace treaty that ended the Mexican-American War (1846–1848). The treaty provided for the Mexican Cession, in which Mexico ceded 1.36 million km (525,000 square miles) to the United States in exchange for $15 million. The United States also agreed to take over $3.25 million in debts Mexico owed to American citizens." (From Wikipedia, the free encyclopedia.)

Remember that sovereign people of states request entry into the United States, the United States does not extend its government over the people of new states. California requested entry into the U.S. but remained a sovereign State. The U.S. District Court Memorandum of Decision and Order dated July 1, 1991 was a rape of that sovereignty.

The Spanish Empire "acquired" California by conquering the Aztec Empire and various other Native American peoples.  William Lamport (1615-1659), an Irishman living in Mexico and nicknamed El Zorro, posted his Proclamation of Independence on the walls of Mexico City. He was the "author of the first declaration of independence in the Indies, a document that promised land reform, equality of opportunity, racial equality and a democratically elected monarch over a century before the French Revolution."

Like many Irish revolutionaries he met an untimely death, not at the hands of the British, but burned at the stake by the Spanish. Mexico had to wait nearly three hundred years for independence from Spain. In 1824 it became a federation of "free and sovereign states", which unfortunately was replaced in 1835 by a French-style "departments" system, centralizing national power in Mexico City under President Santa Anna.

The people of California, new Europeans and what was left of the Native Americans, finally became a sovereign State on September 9, 1850. You wouldn't think so to read the U.S. District Court's Memorandum of Decision and Order dated July 1, 1991, granting itself, the United States, "fee simple" title to the Navy Broadway site "subject only to certain utility easement rights held by the City of San Diego".

I wonder what would happen to this Irishman if he posted a Proclamation of California Sovereignty on the walls of the downtown Federal Building. Do they still burn heretics at the stake? As far as I am concerned the people of California still own Navy Broadway.
 

 
 

Don't blame KPMG - blame incompetent City staff. 12/22/06

 
 

by Pat Flannery

I thought I should republish a list of KPMG "pending" items released by City staff earlier this year, when they were trying to demonstrate how hard they were working to satisfy KPMG. It actually had the opposite effect on me. I wondered, and still wonder, how so many basic items could still be outstanding since 2003. The very questions asked by KPMG give some idea of the chaotic state of the City's bookkeeping.

Here is the audit list once again. And here is a list of auditing terms. The City staff indicated that they had "provided" each item, but because KPMG had not signed off on them, the City marked them "pending" in the KPMG column. I wonder how many of them are still "pending" as far as KPMG is concerned. Unless the standard of record keeping has vastly improved the answers "provided" are as dumb as the records were in the first place. My sympathies are with KPMG in trying to make sense of anything "provided".

Read down through the "Item" column and get a feel for the kind of basic stuff KPMG was asking for. I wonder if we will ever get a meaningful audit. I can just imagine the internal "quality control" discussion presently taking place at KPMG - "what are we going to do with these idiots at San Diego? How can anybody sign off on such garbage?" I was once an auditor myself and know how exasperating an incompetent client can be.

A good manager needs to be able to read financial statements, just as a good physician needs to be able to read X-rays and lab reports. Sanders has no training or interest in financial statements, therefore he is incapable of telling a department head that their operating statement doesn't make sense. He doesn't know!

That is the reason we have no audited accounts, no idea when we are going to get them and a zero credit rating. Sanders allows the same bunch of incompetent paper shufflers to shuffle ever more meaningless paper, because he has no idea what they are doing.

Putting a former police chief in charge of the City's finances is like putting a fireman in charge of a surgery. Sanders  may be a smiley face, but he is no administrator.

Sanders hired Jay Goldstone to neuter the one man at City Hall who knew how to prepare financial statements, John Torrel the City Auditor/Comptroller. John quit on Thursday, totally disgusted with the police state City Hall has become under Sanders,  who is more concerned with managing the City's news than the City's finances.
 

 
 

Waring and Graham have to go. 12/21/06

 
 

by Pat Flannery

In my opinion Jim Waring and Nancy Graham should be fired on the spot. They have been deliberately hiding a "large, 2-inch thick, final fault investigation report consisting of analysis and interpretation of seismic reflection surveys, Cone Penetration Test (CPT) soundings, and borings dated June 2006".

Katheryn Rhodes, finally gained access to this report yesterday, courtesy of Perry Dealy, Executive VP of Manchester Financial. She was only allowed to look at it in Mr. Dealy's presence. No copies. To his credit Dealy seemed less interested in hiding it than do Waring and Graham. What are these two up to?


Here are some quotes from Ms. Rhodes' email to the City this morning: "The developer was told by both Jim Waring and Nancy Graham that the report was not required to be submitted during plan review of the project and they could wait until building permits are issued in a few years".

Perry Dealy confirmed this to Ms. Rhodes, but added: "The developer stated that if the City of San Diego asks that the fault investigation report be turned in for review, they will comply with the request."

This means that Waring and Graham asked Manchester to sit on the June 2006 seismic fault investigation, saying they did not need to see it. These are not the kind of people we want in positions of authority in this city. They did this so their compliant underling, Bob Manis, could write his infamous finding on October 19, 2006.

Through them the City contrived not to see this report so it could issue a false CEQA finding. That is the long and the short of it. If Sanders is to retain any credibility he must immediately fire the three people most responsible for this piece of gross mal-administration. Waring and Graham are particularly unfit to serve in city government.

As for Manis, his own operating manual makes his duties abundantly clear. Rhodes writes:
"according to the City of San Diego Project Submittal Manual and Information Bulletin 515, the June 2006 fault investigation report should have been turned in before CCDC were ever allowed to look at plans for the project." Instead, he did as he was told.

Rhodes concludes:
"we insist that an independent review of the fault investigation report prepared by Geocon Incorporated dated June 2006 be conducted by the City of San Diego Geologist, the State of California Division of Mines and Geology, and concerned citizens for this billion dollar-plus project as soon as possible."

Her quick look at the report yesterday revealed that
"fault or fault-like features offset and displaced the horizontal soil layers for hundreds of feet vertically."

Very concerned, she today warns the City (she is a civil engineer):
"The north-south trending direction of the fault or fault-like features identified in the (also in June 2006) Terra Physics report would correlate well with the 2001 and 2003 fault investigations of San Diego Bay by the California Division of Mines and Geology, and the 2006 investigation for the Coronado tunnel by Kleinfelder, Inc.  Based only on a cursory review of the cross sections of the seismic reflection survey, active faulting seems to exist on the Navy Broadway Complex."

With tongue firmly in cheek she writes:
"The active Coronado fault may abruptly stop within feet of the Embarcadero and not reach land or it may trend to the east of the project site."

Sure, the Coronado fault may stop dead at the water's edge - because Nancy Graham commanded it to. Or it may suddenly have taken a hard right turn to the east and is now a mere "anomaly" (it is through "anomalies" in the earth's crust we discover "faults").

We have had enough of people like Graham and Waring. It is because we had such flawed public servants in the past that we now face bankruptcy. The City Council did not heed the warnings of Diann Shipione in 2002 (indeed they tried to discredit her) will they now ignore the warnings of Katheryn Rhodes? We will see on January 9, 2007.
 

 
 

Yes, Judge Barton was wrestling with ghosts. 12/19/06

 
 

by Pat Flannery

It was so refreshing to read Pat Shea's piece in The Voice yesterday: "You don't need to do anything to make them "void." They just are as a matter of law. The secret unfunded and unbudgeted deficits never exist because the law, as I previously understood it, doesn't allow them to come into existence in the first place."

I hope the law still is as Pat and I "previously understood it". That is the way I learned contract law many years ago as part of my accountancy and business training. I well remember the classroom distinction between "void" and "voidable".

What really bothers me is this modern trend towards relativism. How can we have an ordered society if there are no absolutes? Under relativism, concepts of truth and moral values are not true in all cases. "Circumstances" and "situations" have to be taken into account. But who gets to decide the merits of these "circumstances" and "situations"? One individual? A judge? That's my problem with relativism. Judge Barton's misguided and confused pension ruling is a perfect example of this woolly kind of thinking.

Pat Shea is right. Barton was wrestling with ghosts. The pension benefits he treated as real, didn't exist. In the process, he nearly drove himself, and us, crazy. He really needs to look in the mirror and ask himself what it means to be a judge. I hope he does.

Maybe it's our own fault for running to judges with every piece of nonsense we encounter every day. We seem to have debased the whole judicial concept. Making sense of nonsense is not what judges are for. Unfortunately many of them are not smart enough to understand that. They think they become wise when they don those robes. They sit and listen to circular, convoluted, spurious nonsense, unable to discern what is real and what is not. Deciding what is real and what is not is exactly their primary duty!

Many of them do not seem to believe in "absolute" truths or moral values. Judge Barton for one, could have spared us all a lot of time and expense by simply applying the objective law as it undoubtedly exists. He could have disposed of this case within a week. The pension benefits he has been wrestling with are ghosts - they do not exist.
 

 
 

Is Sunroad the turning point? 12/17/06

 
 

by Pat Flannery

Welcome home Mike Aguirre - I hope. His lawsuit against Sunroad Enterprises evoked this negative comment from Fred Sainz, spokesman for Mayor Jerry Sanders: “We don't think it sends a positive message to the development community”. Maybe not, but it sure was music to my ears. Is Mike Aguirre finally standing up to Sanders?

The handling of this Kearny Mesa construction project by the City of San Diego's Development Services Department (DSD) is a classic example of how DSD exists to serve the development community at the expense of the people of San Diego.

On page 5, Mike's
lawsuit describes how this project was handled under "Process Two" in order to avoid review by the Planning Commission or by the City Council. The first anybody knew about it, including the FAA, was when steel framing appeared along 163. That's how "Process Two" works, it is an inside job.

What citizens need to understand is that Sanders and Waring are trying to make  virtually all development decisions under "Process Two", thus rendering the Planning Commission and the City Council irrelevant. Our thanks to Deputy City Attorney Carmen Brock for her diligence in preparing this lawsuit and bringing this point to the public's notice. It is fundamental to Sanders' pro-developer policy.

Now let's hope our City Council finally wakes up and realizes what Sanders and Waring are up to. They should pay attention to the land use appeals of the ordinary people in the neighborhoods, rather than consistently swallowing the Waring and DSD snake oil.

Read Mike's entire lawsuit for a good picture of how this City under this Mayor tried to pull the wool over the eyes of not only its citizens but the FAA as well. I hope this means we have our City Attorney back. And again, well done Carmen Brock.
 

 
 

Navy Broadway is subject to the Coastal Commission. 12/16/06

 
 

by Pat Flannery

I attended the December meeting of the State Lands Commission (SLC) on Thursday. It was held right here in San Diego in the Port District's board room. Commission Members State Controller Steve Westly and Lt. Governor Cruz Bustamante were in attendance but the third Member, Director of Finance Michael C. Genest, was represented by his Alternate, Anne Sheehan.

According to Chairman Steve Westly it was the most important meeting in his four years on the Commission and it attracted the largest numbers of public speakers. The reason: a developer's attempt to build a timeshare/hotel on a precious Harbor Island parking lot. Harbor Island is State Land. If allowed it would set a precedent for the whole State. Fortunately the Lands Commission voted it down, to the great relief of those present.

The developer is Woodfin Suite Hotels, a San Diego based company. Here is the SLC staff report. It refers to the Commission's Policy Statement regarding the Public Trust Doctrine. The SLC staff concluded that "a timeshare development is not a use consistent with the Public Trust Doctrine". They based their conclusion on the fact that "timeshare accommodations are only available to a small segment of the population who can afford the tens of thousands of dollars for the initial purchase and who would own personal rights to the rooms and thereby prevent other use of these public lands".

The San Diego Unified Port District holds title to Harbor Island (and all other lands under its jurisdiction) in trust from the State Lands Commission. The Commission directed its staff: "to convey staff's analysis as set forth in this report and the Commission's finding (that it had adopted the staff's report) to the California Coastal Commission and the cities, counties and special districts that manage public trust lands granted to them by the State Legislature and for which the Commission retains oversight authority".

This means that the Coastal Commission cannot allow Manchester, or anybody else, to build hotel-condos (or whatever they may choose to call them) on land subject to the Coastal Commission. I wanted to see if Manchester would turn up. He did, in the person of his ever-faithful Executive VP, Perry Dealy.

Dealy's pitch was hilarious. He actually said that hotel developers need greater returns because the cost of building hotels on coastal land is skyrocketing as a result of the need to mitigate seismic faults and the accompanying risk of liquefaction.

This is the company that is telling the City that there is no seismic fault or risk of liquefaction on the Navy Broadway site! The City and CCDC are letting this company do its own seismic evaluation in its own time, which means that Manchester gets to decide what cost he must incur to mitigate non-existing seismic faults - none.

As a result he is setting this City up for the biggest corporate welfare law suit in American history. If the City Council confirms the Manis CEQA finding (that Manchester does not need to show the City an adequate fault investigation before getting clearance) the City will be liable for all his cost overruns due to fault and liquefaction mitigation. That will be decided by the City Council on January 9, 2007.

I urge you to read the Commission's Policy Statement and the Public Trust Doctrine.
 

 
 

The pension benefits are still illegal. 12/15/06

 
 

by Pat Flannery

For those who might be tempted to revel in Aguirre's embarrassment, especially some City Councilors and union members, let them reflect that with his rollbacks now off the table the City will have to choose between a special pension tax and service cuts. The 1996 and 2002 pension benefits are still illegal and their cost will continue to grow until they are either renegotiated or strangle the city.

The people will reject a tax increase. Period. They have made that clear time and again. They will not pay for Cadillac pensions for overpaid public employees while they struggle to survive in the private sector with nothing to look forward to but social security. There is no point in anybody proposing it. It cost Donna Frye the Mayor's Office.

That leaves only massive service cuts. Therefore "the sins of the fathers will be visited upon the sons". Both the people and employees will suffer. The golden days of City employment are over. Current and future employees will pay for the past excesses. City employment will become less and less attractive, barely a notch above Wal-Mart.
 
The finances of the City will eventually recover but the unions will not. Many City employees will refuse to pay union dues. The political power of the unions will be non-existent. Italiano, Saathoff and Torres are the last of a breed.

Aguirre will quite rightly pursue a ruling of illegality to preserve the integrity of  government law. Barton did not rule that the benefits were legal. In fact he was careful to point out: "the issues in phase one do not deal with the underlying "legality" of the benefits, but rather the procedural impact of these past actions by the City which are not consistent with the City’s legal position in the current litigation. Like any party before the court, the City’s past inconsistent positions, or failures to act when there was a legal duty to do so, can impair the ability to proceed in the current litigation.

Before Peters and Madaffer start crowing about Aguirre's "failure" they should reflect on Barton's words. It was their failure to act "when there was a legal duty to do so" that denied Barton the ability to rule in favor of Aguirre. "Corbett" in 2000 and "Gleason" in 2004 merely compounded the illegalities on MPI in 1996 and MPII in 2002.

The tragedy is that the people did not find some way of getting rid of the four remaining City Councilors, Peters, Madaffer, Maienschein and Atkins, who perpetrated this fraud before they could consolidate it. They are still in there voting to cover up their illegal acts and blaming everybody but themselves. Peters will now pompously assert that he was right all along. It is a travesty of justice that he is a Councilor let alone Council President.

That is why I was so disappointed on Monday when Aguirre offered to help Peters with the SEC. Instead of helping these people he should be forcing them to resign in disgrace. Not only did they grant illegal pension benefits, they committed securities fraud, which will affect this City's credit rating for years to come.

As a result, no progress will be made until after the 2008 election. In the meantime these four gold diggers will outdo Juan Vargas in feathering their post-Council nests. Madaffer wants to become the Redevelopment Czar, a Nancy Graham on steroids. Atkins is singing the praises of a Balboa Park Conservancy. I am sure the top job there will pay in excess of $200,000. Why should outsiders like Nancy Graham from Florida have all the gravy? Toni is becoming a born-again privatization evangelist.

In the end of the day the whole pension mess will have to be renegotiated. It is either that or bankruptcy. But before negotiations can begin the unfunded benefits must be ruled illegal, it is the law. Aguirre may not have delivered the rollbacks but he has made the point that needs to be made: a city government cannot spend money it does not have; it cannot grant unfunded pension benefits. And Judge Barton has not said otherwise.
 

 
 

An extraordinary act of civic duty. 12/14/06

 
 

by Pat Flannery

Here is a summary of the Navy Broadway situation to date:

1. Despite Perry Dealy's various promises to Katheryn Rhodes and despite her best efforts, including a trip to Dealy's plush waterfront office, Ms. Rhodes has not been shown the seismic fault investigation done by Manchester.

2. Nor has either of the appellants, Ian Trowbridge or Katheryn Rhodes, been given a copy of the Navy/Manchester lease. This puts them at a huge disadvantage. That lease contains contingency clauses the disclosure of which is essential to the appeals. They are engaged in a contest the rules of which they are not allowed to know.

3. As City staff care so little about protecting the City (all they seem to care about is the developer) Katheryn Rhodes will commission one of her own! She has written to the Port Authority for permission "to conduct the non-invasive seismic reflection survey on Port of San Diego property at the northwest corner of Harbor Drive and Pacific Highway, directly south of the Navy Broadway Complex". This location is a lightly used public parking lot owned by the Port Authority and is the only place available for a limited investigation.

Hopefully her private investigation will determine whether the Coronado fault continues right up to the Navy Broadway site. This is the fault investigation the Port refused to do.

This bright young lady, who just happens to be a civil engineer, with very limited personal means, is willing to put $12,850 on her credit card (or however she intends to pay for it) in order to do the right thing and protect the City. CCDC, with its bloated $187 million annual budget could easily do it. DSD could simply require it of Manchester.

Instead we see this extraordinary act of civic duty. That is why she has had my total support from the very beginning. She has given me pride in my city again. Whatever the outcome of this sordid NBC affair, this city will be the richer for knowing it has faithful citizens like Katheryn Rhodes. I hope there are many more.

It is time the City Council started thinking about their vote on January 9th. Who will they trust? Ms. Rhodes or Doug Manchester? Their vote on that day will be as critical as that infamous vote on November 18, 2002. This time it will be Katheryn Rhodes not Diann Shipione and the issue is CEQA, not pension underfundung, but just as critical.

If the City Council allows Manchester to start construction on that site without knowing whether or not a seismic fault runs through it, serious consequences will occur.

My belief is that Manchester is backing the City into a corner. He is setting them up. He knows there is a seismic problem with that site. So he wants to shift the risk to the City. Two senior City employees, Jim Waring and Nancy Graham are helping him do it - by attempting to defer a fault investigation until after the City Council has voted.

When Manchester later "discovers" the full impact of a seismic fault on the project, he will blame the City. He will claim that it did not follow CEQA law, that it allowed him to proceed when it should have stopped him. He will cite the Manis CEQA clearance and the fact that the City Council upheld it. And he will have a point.

Bob Manis will be personally liable because he knows that by law when a site is in a known risk area and is subject to liquefaction, a fault investigation must be done as part of a CEQA clearance, not as part of the developer's due diligence in his own time, which is the position Manis now holds. He has been warned. He has read the appeal.

If each City Councilor has not read the appeal by now, it is time they did. They will be given no opportunity to say afterwards that they did not know the relevant law or that City staff misled them. Their clear legal obligation to obtain an adequate seismic fault report before voting on the Manis CEQA clearance will be put on record on the day of the appeal. There will be no escape afterwards from the consequences of their actions.

Once they know the facts they may choose to accept all kinds of seismic mitigation measures, but they must see a report to determine the seismic risk to that site before voting. If they try to obfuscate through this critical vote, with the usual hypocritical verbiage and wringing of hands, they will have proven that developers get anything they want in this city. The repercussions for themselves and the City will put the pension problem in the shade. Developer power will have replaced union power.

If they put on the blinders for developers, as they did so many times for the unions, there will undoubtedly be an investigation. I know of at least one Member of Congress who is following this case closely. I know of at last one law suit that is already being prepared.

This City Council will be accused of something far worse than securities fraud. They will have conspired to hide the fact that the San Diego bayfront is unsuitable for development due to seismic activity under hydraulic fill. They will be exposed as developer stooges.

Waring and Graham either already have the seismic study done by Manchester and are refusing to release it, or Manchester is refusing to give it to them. One is as bad as the other. Either way they are putting Manchester's interests before that of the City.

But the ultimate responsibility rests with the Members of the City Council. They can deal with their errant employees Waring and Graham later. Their vote on January 9, 2007 will be a test of who runs this city. If the Council rolls over and gives the developer everything he wants, there will be a gathering of the clans all over the city. It will be a signal to the people that they have lost control of city government. My guess is that there are many more Katheryn Rhodes' out there. But she is certainly the standard bearer.
 

 
 

The job of a City Attorney is to apply the law. Period. 12/12/06

 
 

by Pat Flannery

I went to Mike Aguirre's end of year Town Hall gig last night - an evening of Mike handing out valium. What surprised me was his over the top praise of Sanders. We desperately need open government, not Sanders-style closed government.

To cap his hero-worship of Sanders, Mike now wants to "help" the four City Councilors who disgraced this city and brought it to the verge of bankruptcy. That will come as a shock to many of his supporters. Most of them detest Madaffer and Peters. But Mike will now "help" these people with their high crimes and misdemeanors! Will he also "help" Murphy, McGrory, Golding, Grissom, Chapin, Herring, Lexin, Saathoff, Torres, Webster and Wilkinson? What about Zuchett and Inzunza?

Peters immediately spurned the offer. He says he is unaware he has any problems with the SEC. He is spending huge public money on private attorneys dealing with the SEC but is unaware he has a problem with them? And Aguirre wants to help this guy?

These four Councilors did wrong and should be held accountable. Mike should not offer the services of the City Attorney's Office in their dealing with the SEC. That is getting the City involved again. We are paying their massive legal fees, that is enough.

If we are governed by laws not by men, as Mike assures us we are, he should apply the Municipal Code to the sale of a City property to Hillel. He should apply the Municipal Code to NBC by requiring a seismic fault investigation before granting Manchester a CEQA clearance.

Finally, Mike made an error last night in not mixing with his guests, before or after his speech. Instead of coming down into the auditorium and shaking a few hands he gave a long interview to two reporters, off to one side. His hero Sanders would not have made that mistake. Jerry knows the value of pressing the flesh. Mike needs to learn it.
 

 
 

The Mayor's best chance of fixing things is to let the light in. 12/11/06

 
 

by Pat Flannery

I have been studying the 2007 City Budget. It is a hodgepodge of inarticulate statements that do not fit together to give an overall picture of the City. It raises more questions than it answers. It is not like any financial statement you would ever see in the private sector.

Sanders' Five Year Plan is a mere extension based on assumed % increases and decreases. It contains nothing new and sticks to the same inarticulate format.

The City's operations are carried out within various Funds:

General Fund

1,021,203,098

   

The General Fund provides core services such as public safety, park and recreation, library services, refuse collection, finance and human resources. Its major revenues are Property tax, Sales tax, Transient Occupancy Tax and Franchise Fees.

Enterprise Funds

839,812,640

Capital Improvements Program

293,671,493

Special Revenue Funds

242,930,505

Debt Service Funds

12,136,700

$2,409,754,436

Less Inter-fund Transactions

147,188,995

Total   

$2,262,565,441

Enterprise Funds provide various services such as Water, Metropolitan Wastewater, Development Services, Refuse Disposal, Recycling and others, through user fees.

$147 million of Inter-Fund transfers are dispersed throughout the Fund statements. An un-itemized total ($147 million) is shown at the end. But these money transfers are not grouped or totaled within each Fund.

The Mayor should require clear Revenue and Expense Statements per Fund. Inter-Fund transfers should be itemized and shown as a total in each Fund. We need to know how money is moved around. There should be a balancing statement, showing all money transfers within the system. All we know right now is that inter-fund transfers total $147 million. The opportunities for abuses and cover-ups are enormous.

In addition to Inter-Fund Transfers there are all kinds of internal services being billed backwards and forwards:

Internal Service Funds

106,664,199

(It is unclear what the payment of $39,470,593 to the Pension Fund represents. Can the admin costs be nearly $40 million? Apparently so).
Other Funds (mainly SDCERS)

39,908,893

 

Total   

$146,573,092

 

Again all we know is the total. There is no overall reconciliation of these charges. We don't even know when an expense item is internal or external. Nor is it possible to link a revenue item with its counterpart expense item in the fund where it is a charge.

Here are a few puzzling questions: how does the $293 million Capital Improvement Program (CIP) money get from other Funds, e.g. do sewer fees get transferred from the Sewer Fund to a CIP fund? How does the 1/2 cent sales tax get from the TransNet Fund to a CIP fund? When are Internal Services paid by fees and when by Inter-fund transfers?

The truth is that financial reporting at the City is a mess. How can the Mayor fix anything when he doesn't know what is broken? The City's staff has been allowed to get away with unbelievable sloppiness for years. Outsourcing is not going to cure that. It will become an even bigger mess. The Brits certified me as a public accountant nearly 40 years ago in London and I have never seen such bizarre "accounting" anywhere, here or in Europe.

After a whole year Sanders has failed to demand what any manager, from the smallest to the largest business, would require - basic revenue and expense statements.

The citizens would quickly reform this City if the light of day were allowed to shine into its finances. They would ask the questions Sanders is obviously not asking. The clamor for reform would be deafening. It makes one wonder whether Sanders really wants reform or if he just wants to reward his developer/business backers while he is in there.

He has surrounded himself with a team of control freaks. To get clarification on anything you have to fill out a public information request. Instead of openness the information doors are closed tight. Everything has to go through the Mayor's control freaks.

The Five Year Plan is business as usual - under greater secrecy. Nothing is changed. According to these people they will fix the City in the General Fund. All other Funds are off limits because they are self-sustaining e.g. DSD and Waste Water. Half the General Fund is also off-limits - it is for police and fire services. Therefore the City will be fixed within the $500 million left in the General Fund after public safety. That is insane.

The following Funds are not only off-limits to Sanders' cuts, they are completely off the books and off the the Budget.
 

Centre City Development Corporation (CCDC)

176,400,000

Southeastern Economic Development Corporation

25,900,000

General Redevelopment Fund

45,100,000

Data Processing Corporation Fund

41,800,000

Housing Commission Fund

275,700,000

Total    

$564,900,000

Nancy Graham, President of of CCDC, gets to spend a whopping $176 million to service her downtown developer "clients". Not a cent of that $176 million CCDC money goes to service the debt or pay a cent off the Ballpark or Convention Center bonds. All that comes out of the General Fund. Susan Golding and Jack McGrory reserved the tax increment money for their developer friends and so it remains today.

The rest of the General Redevelopment Fund is spent building theaters and other "essential" infrastructure, to be given away to private entities like the North Park Theater Co. Data Processing is a slush fund for the IT well connected. Does anybody know what the Housing Commission does with its $275 million? I sure don't.

Overall there is approximately $3 billion sloshing around in these badly managed "Funds". Incompetence is piled upon incompetence. Sanders, Froman & Goldstone haven't got a clue what is going on let alone know how to fix it. They run around doing BPR (Business Practice Reengineering) like kids playing doctor with toy stethoscopes.

Fred Sainz heads a bloated PR staff to put a lid on all information while keeping the Sanders spin machine whirring. Jerry makes soothing public appearances, smiling to the TV cameras, kissing babies and cutting ribbons. We must be America's Dumbest City.
 

 
 

The waterfront projects need a fault investigation. 12/05/06

 
 

by Pat Flannery

I went along to the Port District meeting today to see whether they would require a fault investigation for the Old Police Headquarters project.

No. They went ahead and issued a Coastal Development Permit (CDP) despite the fact that their Final EIR for the project, given to the Division of Mines and Geology, said that the project is within the Downtown Special Studies Zone and that a geotechnical investigation including a fault investigation would be conducted before a (CDP) would be issued. Staffers, John Helmer and Lesley Nishihira told the Commissioners that a fault investigation was not required.

It seems t
he Port Authority and CCDC are going to great lengths to avoid doing seismic fault investigations. Are they afraid that they will confirm that the Coronado fault continues under both the Old Police HQ and the Navy Broadway projects? Isn't that all the more reason to do a proper fault investigation? Lives could be at risk.

It is becoming inevitable that State regulatory agencies will get heavily involved in San Diego. Lying is endemic here. The pension crisis would never have happened if city staff simply told the truth. Port District staff John Helmer and Lesley Nishihira know that a seismic fault investigation must be done for the Old Police Headquarters project.

There is a real possibility that senior San Diego planning staff are being told to hide the implications of the Coronado fault. The developers of Navy Broadway and the Old Police HQ are obvious suspects. We must get them to do fault investigations on both their projects, otherwise we should call for outside help.
 

 
 

Bob Manis saw no fault. 12/03/06

 
 

by Pat Flannery

This official seismic map shows the magnitude of the Manis/DSD cover-up.

A well documented earthquake fault is headed directly at the NBC site, but Manis said it is totally clear of all environmental concerns. He cannot possibly believe that. So why on earth did he say it?

Because his boss, Jim Waring, told him to? Why would the City want to cover up something as deadly as an earthquake fault?

Why would Sanders take such an enormous risk? For one campaign contribution? Hardly. A seismic fault investigation would almost certainly kill NBC because the site is on hydraulic fill and prone to liquefaction. But not even Sanders would risk it all for just one project.

Maybe that's it. It would affect not just one project, it would affect all of downtown! Is that why Sanders, Waring and Nancy Graham conspired not to do a fault investigation at NBC? Finding an active fault would bring all downtown development to a screeching halt pending clarification of the seismic situation? Sanders' backers wouldn't like that.

I wondered why CCDC authorized Manchester to do a fault investigation as part of his "due diligence" rather than have the City do one for CEQA compliance. The difference is that the State of California must approve a fault investigation done for an EIR under CEQA while a "due diligence" fault investigation can be anything Manchester wants it to be. CCDC decided to move it out of the public domain into the private domain. Why?

Then last Wednesday Manchester's Executive VP, Perry Dealy promised Katheryn Rhodes (the appellant) that he would let her examine the fault investigation he claims to have done but which he says will remain private for two years. That sounded odd to me at the time. So far Ms. Rhodes has not heard back from him despite numerous phone calls to his office. He never had any intention of showing it to her, just fobbing her off.

Therefore both CCDC and Manchester have gone to great lengths to avoid doing a proper fault investigation. Why? They must be covering up for something. If they had nothing to hide they would simply have complied with CEQA from the start and got it over with.

On January 9, 2007 each member of the City Council will have to examine their conscience and decide whether or not to uphold the most immoral finding ever to come out of a city department - the notorious Manis finding. Manis deliberately ignored a fault declared active in the mid 90's that runs right under the proposed project. Unbelievable!

If the Council upholds Manis, the State of California will have to intervene and enforce CEQA law. It is inconceivable that such immorality, let alone illegality, will prevail. It is inconceivable that anybody could look at the above map and say "we see no fault".
 

 
 

The NBC site belongs to the people of San Diego. 12/02/06

 
 

by Pat Flannery

Mike Freeman's U-T report on yesterday's announcement by Doug Manchester that he had secured a 99 year lease with the Navy and thus avoided NBC entering the BRAC process, offers a glimpse into how the Mayor's office "coordinates" the news.

Freeman is the Mayor's favored reporter whenever anything to do with NBC is being released to the public. What is not said is often more significant than what is said. What was not said yesterday was that the City's finding of CEQA compliance is being appealed. It's amazing that the U-T would "forget" to mention that.

Obviously the Mayor's office would rather not stress that particular piece of information and Mike Freeman obliged. His continued access at the Mayor's office is obviously more important to him than a balanced report. After all he has a job to keep.

Then Mike Aguirre was quoted on a TV news program last night warning the City Council that if they uphold these appeals, scheduled for a January 9, 2007 hearing, they will invite a law suit from Manchester. Obviously the decks are being stacked against the appeals. The Mayor and the City Attorney are of the same mind on this one.

If on January 9, 2007 the City Council decide that a private investor, Doug Manchester, should be given a $1 billion asset for a mere $160 million (the construction of a new Navy HQ for $160 million is all that is being required of him for a 99 year lease), the State of California will intervene to enforce CEQA. That will kill the deal.

If the US Navy was willing to offer this deal to a private party, outside the BRAC process, surely the US Navy should offer the same deal, within the BRAC process, to the people who gave them that land in the first place, the citizens of San Diego. We should offer the Navy their $160 million and tell them go build their HQ elsewhere. This site belongs to the people of San Diego - for a municipal park.
 

 
 

12/01/06 - Manchester's Navy Lease was signed on November 22, 2006.
 (12:00 Noon)

 
 

by Pat Flannery

According to the Voice of San Diego this morning Doug Manchester "will make a major announcement at a press conference this afternoon". The Voice then goes on to say: "Officials for the Navy and Manchester said they will not comment until today's 3 p.m. event, but it's probable that the announcement will be related to both parties' agreement on a lease of the bayside property, which is due soon."

The "major announcement" the Voice are referring to already took place on Wednesday 29, 2006 when the Navy recorded this document at the San Diego County Recorder's Office. It is a Memorandum of Ground Lease between the Navy and Manchester Pacific Gateway LLC. The lease is for 99 years which amounts to fee simple ownership.

Was the release of this little gem of "news" carefully managed by the Mayor's Office? Did the Voice of San Diego have this document since Wednesday but sit on it so as not to steal Manchester's thunder at his 3:00 PM press conference today? This document has been on the public record since Wednesday. If I can get it, anybody can.

The last sentence of Section 4.1 of the City's 1992 Development Agreement (page 9) says: "The Navy shall provide the City with a copy of said memorandum contemporaneously with recordation". So we know that the Mayor's office received a copy of this crucial Memorandum of Lease before the CCDC board meeting on Wednesday November 29, 2006. Yet it was not mentioned at that meeting.

The actual Lease is dated November 22, 2006. A lot seems to have happened on that day: the Navy issued its  Finding of No Significant Impact (FONSI), Mike Aguirre's Office issued its NBC MOL, and Manchester's Lease was signed by the Navy.

For me the most significant thing about this Lease is that it is for 99 years. Section 5.9C (page 23) of the City's 1992 Development Agreement with the Navy sets the term of the Navy's lease to the City for the open space parcel, at 65 years. This was widely interpreted as also applying to a developer lease. How could the developer's lease be longer than the City's lease? What will happen to the open space after 65 years? Will it be developed? There is nothing to say that it cannot.

Section 4.4 (page 10) of the City's 1992 Development Agreement with the Navy says "it is the present intention of the Navy to retain fee ownership indefinitely". Is a 99 year lease consistent with that statement? A 99 year lease is treated as fee ownership by the County Tax Assessor and in various other legal interpretations of land ownership.

I have several other questions which I am sure will emerge and be dealt with over the next few weeks, or at least I hope so. For example, is the Navy required to record the full Lease or just a Memorandum of Lease? Are we ever going to see the full document?

The Lessee is a Delaware Limited Liability Company, Manchester Pacific Gateway LLC. Manchester is hiding behind the same impenetrable veil of secrecy Corky McMillan used in NTC. Why does the City allow that? Any one of the City Councilors could have shares in Manchester's Delaware LLC and we could never know! That is why they use a  Delaware LLC -  to hide the true identity of the Lease owners. NTC all over again.
 

 
 

Is Bob Kittle sabotaging Aguirre's pension case? 11/30/06

 
 

by Pat Flannery

Bob Kittle today wrote a mean-spirited and highly dishonest editorial lauding the last self-serving act of former Mayor Dick Murphy before he shuffled off the San Diego political stage to forever dwell in the shadows of well-deserved ignominy and disgrace.

Kittle turned the truth about this June 27, 2005 Council Meeting (Item 208, page 52) on its head by defending Murphy's last "present" to San Diego's taxpayers. Murphy tried to enact ordinances that validated his 2002 pension giveaways. It was so obvious.

The truth is that in 2005 Murphy phonyed up a 3 year labor agreement, designed to cover up his 2002 under funding of the City's pension system. At the end of that well-choreographed day in June Murphy touted the termination of the DROP program (for new hires only) as a major contribution towards curing the deficit. The whole thing was a nauseating con job, unworthy of the lowliest used car salesman. Eliminating the DROP program for new hires only was a drop in the bucket and a decoy for MP II.

Murphy hired an outside attorney, Bill Kay from San Francisco, to negotiate a series of wage agreements with the City's public service unions. It was a total farce. Here is what I wrote about it at the time entitled "The City may as well have hired Ann Smith".

Now Kittle would have us believe, as Murphy inanely asserted at the time, that this "labor agreement" was a major contribution to fixing the pension deficit. How could Mike Aguirre have validated such a farce? He didn't. Now Kittle is touting Aguirre's inaction as "obstructionism" and an "Expensive Snafu". What is Kittle up to?

The timing of his editorial is interesting - right when Judge Barton must make an important decision in the pension case. Is Kittle trying to sabotage Aguirre's rollbacks? Is the U-T coming to the aid of the very official that brought disaster to this city, Dick Murphy? It can't be for love of the city unions. Or is it something else?

Winning back the City Attorney's Office in 2008 is more important to these guys than saving the city taxpayers $600 million. Depriving Aguirre of a major court victory would go a long way to that objective. Aguirre won by the slimmest of margins. If he loses his pension case he will have a tough time getting reelected. Hence Kittle's editorial.

There is no way Aguirre could have supported a labor agreement that was designed to validate illegal pension benefits. He could not have given legal life to their phony MOUs.
 

 
 

Is Manchester withholding seismic information from the City? 11/29/06

 
 

by Pat Flannery

Manchester's Executive VP, Perry Dealy unexpectedly told the board of CCDC at their public meeting today that Manchester has already done a seismic fault investigation and found nothing. I am sure that came as a surprise to more than me.

When asked later if he had shared that little piece of information with the City, he answered no but that it would be available to the public in about two years. Wow! However he has promised to allow Katheryn Rhodes examine it tomorrow.

This thing gets stranger every day. Why would Manchester keep something as crucial as a fault investigation secret? Surely he would be showing it to everybody to refute Ms. Rhodes' appeal, which largely complains that a fault investigation has not been done.

I have to wonder whether it was a real fault investigation or whether it was and they have found something they don't want to disclose. Otherwise why withhold it from the City? Presumably the board and staff of CCDC heard of it for the first time today. If they had known about it why did they not ask for a copy and take it into account in their various "findings" and
"determinations of consistency"? If they had done so Katheryn Rhodes would not have had to spend so much time researching it and including it in her appeal.

I guess we will know tomorrow when Ms. Rhodes gets to look at the actual document.

In the meantime I think this should raise a few red flags for the City. As a realtor and mortgage broker I tell every property owner and borrower to disclose, disclose and disclose. I will not broker a loan for anybody I suspect might be withholding anything that affects the subject property. When non-disclosure happens, the lender, who usually is the biggest investor in the deal, sues everybody. If Manchester was my client I would be very worried right about now. I don't like things being held back from me.

I can tell Doug Manchester (even though he is not my client thank goodness) that if he is withholding information on seismicity, he is playing with fire. So is the City.

If it turns out that a construction lender relied upon a City "finding" that everything was OK at the Navy Broadway site and it wasn't, they will sue the City and prevail. Jim Waring, Bob Manis and every member of the City Council are not going to be able to say, as Dick Murphy is now trying to say: "I didn't know what was going on".
 

 
 

All this city needs is another investigation.   11/28/06

 
 

by Pat Flannery

The Navy issued a Finding of No Significant Impact (FONSI) dated November 22, 2006, regarding the Navy Broadway project (the same day Aguirre issued his MOL).

It is based on a full Environmental Assessment (EA) prepared by the Navy in June 2006 but not published until now. The FONSI concludes: "Based on information analyzed during preparation of the EA, the Department of the Navy finds that implementing the proposed action will not significantly impact the quality of the environment."

Both documents were obtained from the Navy yesterday by Katheryn Rhodes, one of the January 9, 2007 appellants. She immediately put them on her web site. I spoke to the Navy this morning and they confirmed that November 22, 2006 was the first opportunity anybody (outside the Navy) had to see them - even the City.

These internal documents are not to be confused with the Navy's 1990 Environmental Impact Statement (EIS), on which the City's brief 12 page 1990 EIR is entirely based. The Navy confirmed that their 1990 EIS has not been amended or supplemented. Therefore the City's CEQA finding is still based entirely on the Navy's 1990 EIS.

The EA and the FONSI are therefore more akin to the CCDC's "determination of consistency" findings than to EIR/EIS. It is just the Navy's way of looking at the Manchester plan and checking it for consistency with the 1992 Development Agreement.

The two biggest flaws in the City's CEQA finding remain its attempt to dodge a seismic fault investigation and to ignore its own parking ordinances. The State Attorney General and the Division of Mines and Geology will come after them for not doing a fault investigation. It is analogous to the non-disclosure of the pension deficit.

The appeal points out: "A very significant change in information that was not in the original EIR, is the major change in the status of the Rose Canyon Fault Zone (RCFZ) from "inactive" to "active" status in the mid-1990s. Based on the active status and the new 1995 City of San Diego Seismic Safety Study12, site-specific fault investigations are required in all of downtown. In the mid-1990s, San Diego was redesignated to UBC Seismic Zone 4, the highest zone of ground shaking hazard, from Seismic Zone 3."

CCDC has said that a fault investigation can be done by Manchester as part of his "due diligence", so long as it is done before permits are issued. This is not so. A seismic fault investigation is mandatory on the City for CEQA compliance. It cannot be left to the developer. All CCDC had to do was check with the State, as the appellants did.

If on January 9, 2007 five City Councilors vote to uphold the Manis CEQA finding (that nothing has changed since 1990), they will repeat the error of November 18, 2002 when the City Council upheld a staff recommendation that it was OK to underfund the pension system. This time staff are saying that CEQA does not require a fault investigation.

On January 9, 2007 it will not be just one lone whistleblower, Diann Shipione, warning them that they are breaking the law, this time dozens of voices, including this blog, are providing a steady stream of information, backed up with clear documentation, that the State of California requires a fault investigation before a final EIR can be adopted. This time City Council will not be able to blame City staff or discredit one lone whistleblower.

If they turn a deaf ear to this appeal, as they did to Diann Shipione in 2002, it will be the State Attorney General, the Division of Mines and Geology and other State agencies that they will be dealing with. They may find these State agencies tougher than the SEC. The fact that this City has already been found to have committed securities fraud will fuel the State's zeal. State and Federal agencies are getting tired of this arrogant city, dubbed America's Finest City, thinking it is above the law. The Wall Street Journal and other national publications are calling for disciplinary action against its officials.

If I were on that City Council on January 9, 2007 I would not be inclined to push my luck, particularly if I were one of those who ignored the Shipione warning in November 2002.
 

 
 

Merry Christmas Mr. Manchester. Signed: San Diego City Attorney. 11/26/06

 
 

by Pat Flannery

Early today I received Mike Aguirre's NBC MOL dated November 22, 2006 from one of his Deputies. So far as I am aware it has not been published anywhere else.

In it
Aguirre says that the City is not a party to a Lease between the Navy and Manchester and therefore the City's approval is not necessary - Manchester can now sign his Lease any time he likes.

For me, the City may not be a party to the actual Lease but the City's 1992 Development Agreement governs its terms. If Aguirre's latest MOL is correct, Manchester could have signed a Developer Lease with the Navy any time he wanted in the last six months. Why didn't he? What has changed? Nothing. He will not have a compliance determination until the CEQA appeals have been heard. He could just as easily have signed a "contingent" Developer Lease last January as today.

Manchester will use this MOL to sue the City if it interferes in any way with his independent "contractual" relationship with the Navy. Aguirre has effectively given away all the City's authority over Manchester and the Navy with regard to this project. 

In addition the City Attorney has put a loaded gun to the head of the City Council. If it upholds the two CEQA appeals on January 9, 2007 and overrules its own Development Services Department, according to Aguirre: "any decision of the City Council is subject to judicial action". He is practically daring the City to uphold the appeals.

He then says that the City is not "privy to the terms and conditions to be contained in such a lease". No? Then what was the point of the 1992 Development Agreement in the first place? It was written precisely to set the terms and conditions of a lease.

Section 5.2(e) of the 1992 Development Agreement states: "No development under this Agreement shall proceed unless and until a determination of consistency has been made". What does "development" mean? What does "determination of consistency" mean? Does "development" not include the signing of a "Development Lease"?

Is Aguirre saying that "development" only starts with Papa Doug turning over the first shovelful of dirt for the cameras? This flies in the face of everybody's understanding of what a "determination of consistency" was all about.

If "No development under this Agreement shall proceed" does not include the signing of a "Development Lease", then it means nothing. This is not just a lease to park cars, it will contain massive exclusive development rights to Manchester. It's another exclusive development rights giveaway, just like East Village to Moores and NTC to McMillan.

Those who believe, and there are many, that the Navy Broadway Complex should go into the BRAC process are being cheated by Aguirre's MOL. The people of this City had a rock-solid Agreement with the Navy that if there is not a valid Developer Lease in place by January 1, 2007, the Navy Broadway Complex would go to BRAC. All that is now thrown out the window by Aguirre's MOL. The January 1, 2007 deadline means nothing.

A Developer Lease "contingent upon" something as fundamental as an EIR is a farce. For Aguirre to say that the City must accept such a farce is to ignore the very fundamentals of the 1992 Developer Agreement.

Now that I think of it, as an eager proponent of Prop C. (the outsourcing of City services) Aguirre gained from Manchester's $50,000 "gift", just as much as Sanders did. Perhaps it bought more than the Manis finding, it bought this MOL. At the very least, as a result of that $50,000 "gift", Aguirre has a conflict of interest with regard to Manchester and the Navy Broadway project. 

Merry Christmas Mr. Manchester. Signed: San Diego City Attorney.
 

 
 

City Attorneys and land giveaways. 11/24/06

 
 

by Pat Flannery

CCDC will hold a meeting on Wednesday November 29, 2006. Here is a link to the Agenda posted on their web site. Item 10 is "a status update of the Consistency Determination Review Process for the Navy Administration Building" as part of the Navy Broadway Complex project. Here is the accompanying staff report.

Its Conclusion, on the last page, says: "CCDC staff and the Developer have committed to moving this project forward. This report indicates the steps to be followed to continue the Consistency Determination Review of the revised Master Plan and the revised NAB plans." Immediately above that Conclusion they restate DSD's finding that "no further environmental documentation needs to be prepared".

This means that at least as far as the staff are concerned (1) CCDC does not recognize the two pending CEQA appeals (they don't even mention them) and (2) they view CCDC's responsibility for "Consistency Determination Review" as an ongoing "phased" process, which will continue, building by building, until the project is completed.

CCDC staff's advice to Manchester, on behalf of the City, remains unchanged and unchallenged: Manchester is in compliance with the 1992 Development Agreement and he can sign a lease with the Navy any time he likes. This report will be presented to the CCDC Board on November 29, 2006. The staff doesn't even ask for an action by the Board, they just want to get their report on the record, unchallenged.

After November 29, 2006 will come an announcement by Manchester that he has signed a lease with the Navy. Secret collaborators will breathe a collective sigh of relief. They know that once the City allows Manchester to sign a lease, all appeals are useless.

Sure, Peters will docket the appeal; it will even be heard! On January 9, 2007. Long after Manchester is home and dry. Five City Councilors will give long speeches telling how much they care about about our precious waterfront, but alas their hands are tied. If they uphold the appeal Manchester will sue. For the good of the city they must vote "No". Everybody will have an excuse for where they were when they were needed.

As the clock winds down to Wednesday we await some input, any input, from the City Attorney. Right now the CCDC's staff position is the legal position of the City. The Manis finding remains unchallenged. The only person who can challenge it is the City Attorney.

Such a challenge would require a formal written request (form 1472) to the Council President, to hear the appeals against the DSD finding. So far only deafening silence from Mike Aguirre. Obviously he wants Manchester to have his NBC project - he could so easily stop it. By turning a blind eye to the CEQA appeals he has waved NBC through. Who could ever have imagined such a thing, just two short years ago.

It looks like we will have to get used to the fact that Sanders and Aguirre have an election pact for 2008: Sanders will support Aguirre for City Attorney and Aguirre will support Sanders for Mayor. Unfortunately that's how politics works.

It may be a great political arrangement for Sanders and Aguirre but it has devastating implications for land use decisions over the next two years. We may be in for more of the bad old Golding/Murphy/Gwinn days. If NBC was happening under Casey Gwinn we would know who to blame. The simple fact is that unless a City Attorney challenges land giveaways, they will happen with ever greater frequency. Look out for many more.
 

 
 

Docketing for Dollars. 11/20/06

 
 

by Pat Flannery

If you look at the Docket for the City Council for this week and last, you will be struck by the fact that each agenda item benefits either a developer or somebody with a lucrative contract with the City, e.g. last week's renewal of a used car dealer's lease on the Stadium parking lot for its "big tent" sales events. Item 330 for tomorrow, Tuesday, (page 46) should never have been docketed. Here's the story on that one:

At the request of Jim Waring and his DSD "client" (that's what DSD call all developers), Scott Peters scheduled this developer appeal. This particular project was unanimously rejected by the Planning Commission after it was unanimously rejected by the Rancho Peñasquitos Community Planning Board. Peters has now not only put it on the docket for appeal, he has given it a much higher priority than two Navy Broadway appeals!

Two citizens have appealed DSD's outrageous finding that a 1990 Environmental Impact Report regarding Manchester's Navy Broadway project does not need to be updated. Now their appeals languish in Scott Peters' office. Developers are given the red carpet treatment while citizen appellants are given the run around.

It is almost laughable in its transparency. The City Attorney and the Council President put up a procedural smokescreen to give Manchester the cover he needs to sign a lease with the Navy. First the City Attorney tells the appellants that all appeals must be heard, but cannily declines to say whether the subject of this particular appeal, the Manis finding, is appealable. Time goes by. Peters then schedules the appeal hearing for January 9, 2007, nine days after Manchester will have signed his lease with the Navy!

Is there any doubt that this city is being run for the benefit of developers? They own the Mayor - they elected him. They own the Council President - he gives top priority to their appeals and gives citizen appeals the run-around. They own at least 5 votes on the City Council - Peters, Madaffer, Faulconer, Maienschein and Hueso. Whenever a citizen appeal makes it to the docket, they already have the 5 votes lined up to defeat it.

But there is still hope: Aguirre may break with Sanders and go back to his roots; Peters may tell Perry Dealy not to come into his office ever again; Dealy's boss, Doug Manchester, may volunteer to do a new EIR for Navy Broadway; the 5 City Councilors may vote their conscience and I may win the Miss America Contest.

The developers may have the money - but we have the votes! Therefore we already are Mr. and Ms. America. Our opinions matter because our votes matter.
 

 
 

Have we become a government of men (or women)? 11/19/06

 
 

by Pat Flannery

To understand this blog you will need to first read my blog dated 11/05/06 and then my blog dated 11/10/06. This matter involves the sale of City-owned land in La Jolla to Hillel, a Jewish student organization. Before you go jumping to conclusions that this has anything to do with religion or race, it does not. The only matter at issue here is the law.

The case is important, not for religious or race reasons, but because the law has not been followed. Favoritism raised its ugly head, when the law is the same for everybody.

Whether or not "waste" was committed will be determined later (there is a "waste" case pending before the courts that will be heard sometime next year). My focus is on the Municipal Code. It has been flaunted and broken. I thought all that changed when Mike Aguirre got elected. I am deeply concerned that the law is still been abused. Has Mike changed or are some of his hirelings serving him badly? He could have stopped this.

Judge Quinn issued a delayed finding on November 16, 2006, following a hearing on November 9, 2006. At that hearing Mike Aguirre's office took the position that on November 20, 2000 the City Council authorized City staff to enter into exclusive negotiations with Hillel for the sale of the subject property when in fact the authorization was for a lease only. Here is the Resolution. It is clear enough. It is for a ground lease.

Not a judge nor a jury can change that. Nothing can change that.

Judge Quinn allowed the sale to go ahead based upon what I believe was false oral  testimony by the City Attorney's office. I was present in court. The City Attorney's representative falsely asserted that the November 20, 2000 authorized a "sale".

I was later informed in an email from attorney Kathryn Burton of Mike Aguirre's office that their position is that a transcript of the 2000 City Council Meeting supports an "intention" to authorize a "sale" rather a lease.

I read the transcript she provided very carefully. Juan Vargas, the maker of the motion, asked for an assurance from real estate assets Director William Griffith (who later resigned following a U-T exposé of his gross mismanagement of the City's assets) that if Hillel made an offer to purchase rather than to lease the property, the Motion before the Council as it stood (for a lease only) would cover a sale. Griffith said it would.

He told Vargas that "
the consistent recommendation out of Committee was to give them the opportunity... for sale or lease". So there you have it. According to Griffith it does not matter what a Council Resolution says. If a subordinate committee had advised otherwise, the committee prevails. Thank goodness this man is no longer with the City.

What concerns me is that the City Attorney's people agree with Griffith! They, like him, believe that it is the "intention" of the City Council that matters, not what is written down on paper. If intention was all that mattered Donna Frye would be Mayor.

Who gets to divine "intention"? City staff? Would the Resolution have passed if it actually said "sale"? In casting their vote did the Councilmembers rely on the fact that it only said "lease"? Many Councilmembers often sit mute throughout the discussion phase and vote for what the motion actually says. Everything else is mere discussion.

That's why we must always rely on the actual wording of a document and not get into divining "intent". To do otherwise is to court anarchy.

If Donna Frye was denied the Mayor's Office because people who clearly wrote her name on the ballot paper carelessly omitted the little detail of filling in the bubble, how can City staff now tell us what a Councilor "intended" back in November 2000?

Yet that is exactly what Kathryn Burton has told me - that intent trumps the written word. I find this very disturbing. If City staffers can interpret the written word any way they choose by divining Councilors' "intent", then we are truly lost. I can't believe Mike Aguirre sanctioned this. It stinks. I hope he acts before it is too late.

But it may already be too late. He should have done this weeks ago. The Mayor's staff will close the sale post-haste. Perhaps on Monday. Will Aguirre act at last? Did he know all along that games were being played with the law or did someone on his staff have an agenda of their own? Was somebody giving out favors at his expense?

The manner of the Hillel sale is crucial to all of us who want to prevent waste and abuse in government. It should have been an open and free sale. It was not.

How are we ever going to reform the City if the law is what some staff person says it is? The law must be followed no matter whose brother or grandmother is involved. I don't know whether the Jewish community at large were influential in this case or not. I don't care! As a Roman Catholic if the Pope himself wanted that land I would call on the City to follow the law, with the same degree of passion as I do now. I suspect everybody in the Jewish community feel exactly as I do.

§22.0902 of the San Diego Municipal Code is clear. It states what must happen for the City to sell a piece of public land. How can a citizen ever again appeal an action of City Council based upon what the Municipal Code says? This illegal sale asks the most fundamental question a society can ask: are we governed by laws or by men? If this sale stands, we have become a government of men (or women), not of laws.
 

 
 

The elephant in San Diego's living room - "redevelopment". 11/17/06

 
 

by Pat Flannery

The map opposite shows the 8 downtown "redevelopment" projects. The whole area marked is officially "blighted". All those shiny office towers and all Manchester's hotels were built to eliminate this "blight".

Only 13.75% of that area's property taxes go to the City. 86.25% goes to CCDC. It is called "tax increment diversion".

CCDC then sells bonds against this tax revenue to subsidize developers. Our vote is not required. Result: our tax dollars build private hotels and private office buildings downtown. That's how it works.

CCDC has an administrative budget of $8.1 million. $6.2 million of that is payroll - for 51 employees - an average of $124,000 per employee. The Mayor earns $100,000!

The chart below shows the total valuation of all real estate in San Diego - $15 billion. $10.7 billion of that is "diverted" as "tax increment", supposedly due to "redevelopment". Most of those increases would have happened anyway but once an area is designated "redevelopment" the taxes from all increases in value are then "diverted".

One common lie about "redevelopment" is that it prevents real estate taxes from going to the State i.e. it keeps the money in San Diego. Politicians deliberately repeat that lie all the time. Jim Madaffer repeats it like he actually believes it. Maybe he does. The truth is that not one cent of tax "remains" in the city as a result of "redevelopment". It is merely diverted within the City from the General Fund to a Redevelopment Fund where by law it can not be used for city services. It becomes the sacred cow of developers.

Projects Valuation "Increment" Tax Diverted % Diverted
Center City 7,967,390,323 6,786,482,053 67,864,821 85.18%
Horton Plaza 745,318,317 727,917,004 7,279,170 97.67%
Downtown Total 8,712,708,640 7,514,399,057 75,143,991 86.25%
Other City Projects 6,289,319,028 3,190,912,923 31,909,129 50.74%
San Diego Total 15,002,027,668 10,705,311,980 107,053,120 71.36%

Therefore 71.36% of all real estate taxes collected in San Diego city are "diverted" from the City's General Fund to the Redevelopment Fund. Sanders cannot touch that money. It is the Elephant in the Living Room he is conveniently ignoring. He is going to "fix" the City on 13.75% of its revenue and ignore the 86.25% CCDC elephant in his living room.

Downtown accounts for 70.19% of all real estate taxes diverted in San Diego city. Last year the amount was approximately $75 million. Here is how it will increase.

But in addition to all that diverted real estate tax money, CCDC receives approximately $100 million in other revenue! Here is their 2006/07 Revenue & Expenses Budget:

Revenue

$ M

Expenditure

$ M

Tax Increment Diversion 79.1 Expenditure on Projects 80.9
Tax Allocation Bond Proceeds (Prior Years) 51.0 Low/Mod Housing 42.1
Developer Proceeds/Pass-Through/Other 5.1 Tax Sharing Payments 10.1
Interest/Lease/Notes/Other 15.7 Other/G&A/Consultants 9.7
Prior Years Revenues/Adjustments 25.5 Debt Service 33.2

Total Revenues:

176.4

Total Expenditures:

176.1

$176 million "expenditure" per year is an enormous amount of money to be off limits from Sanders' spending cuts. CCDC gets to keep and spend all of it for the benefit of the developers, without paying a cent towards city services, not even for police and fire.

It is the developers'  private cash box - all $176 million of it. Sanders dares not touch it. The developers elected him and will elect him again in 2008. I just thought you might like to see how he is "fixing" San Diego. Maybe he has another kind of "fixing" in mind.
 

 
 

The Knights and peasants of San Diego Today. 11/16/06

 
 

by Pat Flannery

The great Princes of medieval times fought great wars backwards and forwards across Europe, well above the heads of the millions of peasants who patiently worked the fields and vineyards from dawn to dusk. Ownership of these fields and vineyards was the subject of their Princely wars. The medieval peasants had no more voice in the affairs of their day than the farm animals they tended. Do we? Sometimes I'm not so sure.

Today, in San Diego, the great Princes are the land developers: Pardee, McMillan, Manchester and  Moores, to mention but the top tier. Their charging Knights are men like Sanders, Bersin, Steve Peace and now a brash young wannabe called DeMaio.

The Medieval Prince got the naive peasant to leave field, vineyard and wife to go fight and die for his Prince, by convincing him that he was fighting and dying for his religious beliefs. Protestants killed Catholics and Catholics killed Protestants not for religious beliefs, as they so foolishly supposed, but for land - more often the stealing of it.

The modern Prince no longer uses religion to motivate the peasants. He uses things like ballparks, stadiums, airports, model schools, the elimination of blight, better government through privatization and sundry such tricks to bamboozle the work-from-dawn-to-dusk peasantry. The only difference between today's peasants and those of Medieval Europe is that we now drive cars, start before dawn and work way past dark.

The modern hell's-fire-and-damnation preachers are the commercial newspapers, like the San Diego Union-Tribune, that depend on the Princes for their advertising revenue, much like the church preachers of old depended on the Princes for patronage.

As the land wars shift and we watch today's Princes deploy or retire their Knights, we can only guess at which Prince is winning and which is losing. We can only guess at the great strategies being planned in the tall downtown castles of the Princes.

Take the present airport battle. We know it is not about an airport, no more than the Battle of the Roses, between the Lancastrians and the Yorkists, was about the merits of the Catholic or Protestant religions, it was about the Crown of England. The battle of the airports is about which Prince-developer gets to develop which piece of land.

Former State Senator, Steve Peace, has now entered the field in a magnificent suit of armor bearing the heraldic colors of John Moores, who by right of conquest has already been granted sole development rights to San Diego's East Village. That virgin territory is divided into four parts (Project Areas) by the City Fathers: North, South, East and West. Rather like ancient Gaul (France) "Gallia est omnis divisa in partes tres".

Moores has already struck gold in his new East Village dominion and built a stadium for the peasants so they can forget that they are a conquered people. Now, through Steve Peace, Moores intends to conquer the entire territory between Harbor Drive and I-8 and between I-5 and Dog's Beach. Remember this "airport" plan?



To this end he has enlisted the aid of sitting State Senator Christine Kehoe who will pass the enabling legislation just as she did with the (now defunct) Model School Joint Authority in City Heights. Moores is benefiting from Sol Price's mistakes. The lesson of City Heights was: if you want to conquer territory that vast, you need a better ruse than a model school, you need something like a regional airport!

The politicians create an "Authority" for the developers and give it the power to issue tax-free bonds. Why borrow money from banks when you can acquire the powers of a municipality to issue municipal bonds? That's how Moores built his Ballpark. All across the country savvy developers are using tax-free Bonds to finance their projects. And not just ballparks. Any "public good" project will do, e.g. an airport "authority".

The so-called "Kehoe Hearings" are just the public act in this process. That's her job. Her developer friends have already written the Senate Bill, creating their bonding entity. She knows the game well, she did it for Sol Price and Jack McGrory, now she is doing it for John Moores and her former Senate colleague Steve Peace.

Meanwhile out in the Northern Provinces, the 23,000 developable acres of MCAS Miramar will fall into the hands of Pardee and McMillan, as soon as the Marine Corps decide, "for security reasons", to move to a safer Fallon-like location.

Of course Manchester, has to be made safe within his Waterfront Principality, otherwise he might invade Moores' territory.

That is my guess at the strategies of the developer Princes as they look out over San Diego from their tall downtown offices.

Are we "peasants" better off than our medieval ancestors? Maybe you can figure it out as you sit in traffic on your daily commute to the virtual fields and vineyards of San Diego today. Or maybe I should just relax and accept the daily sermon droning out from the U-T every day telling us that everything is in its place - "the Master in his Castle and the servant at his gate".
 

 
 

The SEC finding. 11/14/06

 
 

by Pat Flannery

My first impression reading the SEC finding is that Aguirre crammed it full of everything he will need to win his pension benefits rollback case. If so he has done an excellent job. Judge Barton will have a tough time ignoring its very clear language regarding the contingent and retroactive nature of the pension benefits, any one of which makes them illegal. Barton will have to disagree with the SEC's finding to rule against Aguirre.

No doubt Mike will enter this finding as evidence and call for a summary judgment in his favor. The judge will deny it of course, citing the finding's provision: "without admitting or denying the findings herein, except as to the Commission’s jurisdiction".

Barton will go through the motions of trying the case, but it is already over bar the shouting. This is a huge blow to Ann Smith and the unions. It may be no coincidence that the SEC finding was released for maximum effect, right in the middle of the pension trial. Ann Smith would have done no less.

This finding is in stark contrast to the Kroll report. If Vinson and Elkins was Whitewash I,  Kroll was Whitewash II. I could almost forgive the City Council for caving in to the unions in granting retroactive benefits (I said almost) but I can never forgive them for paying $20 million of taxpayers' money to Kroll & Co. to find themselves merely "negligent". The SEC finding shows how criminally negligent they really were.

The SEC says quite clearly on page 12 that "The City had knowledge of these projections prior to all of its 2003 municipal securities offerings." It then goes on to document at great length how it knew "through its officials".

The SEC only cares about its bond holders. It could care less whether retirees get their pension benefits or not. It could care less whether San Diegans get city services or not. What it wants to avoid is a situation where the City is "forced to choose between paying pension contributions, paying what the City owes on its bonds and notes, reducing services, and/or raising fees and taxes." That's why they have helped Aguirre win his pension rollback case. They too want to reduce the City's debt.

But what of the officials? Unlike Kroll, the SEC makes no distinction between elected and non-elected officials (which proves what a setup Kroll was): "The City, through its officials, acted with scienter." That includes the five City Councilors!

Scienter is “a mental state embracing intent to deceive, manipulate or defraud.” We know the elected officials had "detailed knowledge". Pension underfunding came up again and again for Council vote. And they all read the Blue Ribbon Report.

The "monitor" is now the "Independent Consultant". That's good. The word "monitor" had a very negative connotation to it. Also his/her oversight is limited to matters "regarding its (the City's) disclosures for offerings." That's very good. Sanders can't use that Office to intimidate the City Council. There are also good built-in precautions preventing any conflicts of interest the Independent Consultant might have.

All in all it is a good settlement and a timely boost for those of us who want to see genuine reform. We still need to win the pension rollbacks. We may have to accept that the elected officials will get away scot-free. The electorate is jaded and does want to see five City Council elections anytime soon. Resignations or recalls are unlikely.

But the unelected officials are not so lucky. They still face criminal charges. This finding really hurts them. They bear the brunt of the criminality side of this. I have little sympathy for them. They were unbelievably blatant and persistent in their arrogant criminality. I hope their ignominious fate sends a message to people like Jim Waring and Bob Manis. If the City had honest employees none of this would have happened.
 

 
 

The Qualcomm Stadium parking lot car sales lease. 11/13/06

 
 

by Pat Flannery

"Extension of San Diego Auto Connection’s Lease at Qualcomm Stadium", Item 202 on today's City Council Docket (page 12) and its accompanying  Report to the City Council is instructive on how pay-to-play government operates in this City.

Here is the original contract between the City and San Diego Auto Connection (SDAC), a firm that organizes giant car sales events in the Qualcomm parking lot. It was signed by Deputy City Manager Bruce Herring and Deputy City Attorney Kelly Salt on behalf of the City. Both are now gone. Both got dishonorable mention in the Kroll report.

This one page contract granted SDAC the exclusive right to hold 7 car sale "events" at Qualcomm Stadium for a flat fee of $391,000 per annum. SDAC admitted to actually holding 19 "events" per year, approximately $20,500 each, or $2,050 per day for the entire parking lot! The contract defines an "event" as 10 days.

Here's how Herring granted SDAC unlimited "events" without additional rent: "permittee is hereby given the right to conduct additional events on an availability basis".

But that's all stopped now. That could never happen again. The Kroll report put an end to it. Mayor Sanders is cleaning up the City. Right?

Wrong! One of our highest paid Department Heads, Jim Waring, spent the entire afternoon trying to get this ridiculous SDAC lease renewed for another two years. He ducked and weaved and showed great impatience with City Councilors like Donna Frye who asked tiresome questions. Watching his body language this guy clearly sees the assets of this City as his to lease or sell according to Sanders' pay-to-play program.

Frye, Atkins and Hueso voted against him. The rest, including Young, gave Waring and his SDAC friends what they wanted. Highly irritated at Council Members for trying to cap the number of events allowed, Waring finally conceded, on behalf of his client SDAC, that they would pay $18,000 for each of six more events. He was advocating for them, not for the City that pays his salary. No City Councilor pulled him on it. They have come to accept this kind of staff behavior as completely normal!

Waring cited the sales tax the City would receive but was unable to verify that a single car dealer pays a single cent in sales tax from their activities at the City's parking lot. Does the City not have some responsibility to ensure that all commercial activity on its property is conducted by traders who are registered for sales tax? Are participants not asked to show proof of registration?

Instead of being outraged at his predecessor's giveaway, Waring was clearly upset that he wasn't able to just walk in there and demand a repeat of Herring's giveaway.

Donna Frye suggested other very good alternative, revenue-generating uses for the Stadium parking lot. She suggested using it as a parking lot for the businesses of Mission Valley and even Downtown. Businesses could put on shuttle buses or people could ride the trolley to Downtown. Waring just stared sullenly at her.

Frye was outraged that the legitimate car dealers of Kearny Mesa and Mission Valley were being robbed by unfair competition sponsored by the City. It is a lose-lose deal for the City: (1) the City gives away the Stadium parking lot for only $2,050 per day for 190 days of the year (2) it is undoubtedly depriving the State and itself of sales tax - these out of town, fly-by-night, second-hand car dealers are very unlikely to pay sales tax. Waring said it is not the City's job to police them.

Every time Waring sits in that staff chair it costs the City money. That's why Sanders hired him. He is the Giveaway Chief in Sanders pay-to-play government. Sanders deliberately made this man San Diego's land use Czar. Tom Shepard is the keeper of the rolls and Shakedown Chief. That completes Sanders' pay-to-play machine.

Remember the Manchester $50,000 contribution to Prop C? Days later Waring's staffer, Robert Manis signs his notorious Navy Broadway "finding". Tom Shepard was running the Prop C campaign for Sanders. Shepard identifies those who have business before the City Council. Waring then sits in his staff chair at City Council and the deal gets done. That's how pay-to-play government works. And they are only beginning.

This is why we need Mike Aguirre as our Elliott Ness. Right now he is mistaking Sanders for a nice guy. There is no middle of the road in the fight against corruption.
 

 
 

Sanders hasn't forgotten who elected him - has Mike? 11/11/06

 
 

by Pat Flannery

"Opponents expect to appeal Manis' decision to the City Council, but whether it can be appealed may be in question. City Attorney Michael Aguirre issued an opinion that it can be, but citing a previous legal opinion, Mayor Jerry Sanders' spokesman Fred Sainz said his office doesn't believe it can" - so wrote Dani Dodge in the U-T on October 20, 2006, regarding DSD's findings on Navy Broadway's 1990 EIR.

Karen Heumann yesterday sent this email to the Broadway Complex Coalition (BCC), the organization that filed one of two appeals: "Our office does not sign a 1472 in order to get an appeal docketed - it is more administrative of a matter.. thanks. Karen".

By saying there is no need for the City Attorney's Office to file a 1472 (see my
"There will be a Navy Broadway CEQA hearing". 10/20/06 for a full  explanation of what a form 1472 is and why it is necessary in this instance) she is saying that BCC should trust Manis. She is saying that he will docket the appeal "administratively", voluntarily.

Has Manis had an epiphany? Is he now willing to disobey his boss, Jim Waring, in order to be a good civil servant? Who is going to tell Manchester? Waring? 

An appeal would kill the NBC project. Too many ugly facts about that deeply flawed waterfront construction site will become part of the official record e.g. the likelihood of disastrous liquefaction in the event of an earthquake. Read
Katheryn Rhodes' appeal.

That's why Manchester wants to ram this through without the site's problems getting on the record. He would be unable to get financing if the true facts were brought out.

Manchester gave a $50,000 "contribution" to Sanders' favorite charity - the "Yes on Prop C" campaign. The Manis finding came just a few days later. Does anybody imagine for one moment that Sanders will now tell Doug: "sorry, you are not in compliance with CEQA, there will have to be a new EIR"? Yet that is exactly what Aguirre's staff wants BCC to believe - that Jim Waring is going to play nice.

Scott Peters understood that only intervention by Aguirre could get the appeal on the Council Docket. He knew that the Mayor would never allow it to be docketed "administratively". Peters wrote
this Memo to Sanders and Aguirre, late in the afternoon on the same day the above U-T article appeared. Now it was up to Aguirre.

Aguirre didn't fall for it. He knew it was designed to put him against Sanders on this. But in escaping Peters' trap, Aguirre may have fallen into a much bigger one. He may have pushed the loyalty of his voter base - to the breaking point. They do not want Manchester's Broadway complex and they will blame Aguirre if it goes through. So far Aguirre has shown no inclination to break with Sanders on this or any other issue.

As it stands right now the Manis finding is non-appealable. There are 50,000 reasons why that finding will continue to be non-appealable - all of them spent on Prop C.

Aguirre knows that the City Council want to separate him from Sanders. Aguirre wants to weaken both them and the unions. To that end he supported Prop C and helped Sanders put his 3 year monitor in place over the City Council. The Council must be getting quite concerned that these two powerful men are so united against them. All except Kevin Faulconer. Kevin is Sanders' man. And Sanders wants to make him Council President. That would complete his
coup d'é-tat of the entire City Government.

As for Mike, how many Hillels and Navy Broadways can his base endure? They did not elect him to help Sanders give away city land. Sanders will be supporting Leslie Devaney, or some other safe Republican, in 2008. All Aguirre's favors for Sanders will account for nothing. And he will have alienated the people who elected him in 2004.

Sitting in court on Thursday, listening to hired gun
Suzanne Varco defend Sanders' land giveaway, with two Aguirre staff people sitting beside her, made it abundantly clear to me that Aguirre is helping Sanders. What a shame. How disappointing.

Manchester will get his Navy Broadway complex, if Aguirre does not break with Sanders. Hillel will get their land at a deep discount, if Aguirre will not oppose it. Sanders hasn't forgotten who elected him - has Mike? 
 

 
 

Did Mike Aguirre hire Suzanne Varco to lie? 11/10/06

 
 

by Pat Flannery

I went to Judge Linda Quinn's courtroom yesterday to see if Mike Aguirre had corrected this Resolution dated May 15, 2006, purporting to authorize the sale of a vacant lot in La Jolla to Hillel, a Jewish student religious organization. A taxpayers' group are alleging collusion between City staff and Hillel to sell the property at a much reduced price. That is called "waste" in legalese.

The May 15, 2006 Resolution said: "WHEREAS on November 20, 2000, the City Council authorized READ staff to enter into exclusive negotiations with Hillel of San Diego". It inferred that the November 20, 2000 Resolution authorized "exclusive negotiations" for a sale. It only authorized "exclusive negotiations" for a lease.

Not only did Mike Aguirre not correct that error before yesterday's court hearing, (read my blog of 11/05/06), but the outside lawyer hired to try the case, Suzanne Varco of Opper and Varco, joined the Hillel attorney in a blatant lie. They both told the Judge, in the clearest possible language, that the November 20, 2000 City Council Resolution authorized City staff to enter into "exclusive negotiations" for a sale. It did not.

The taxpayers' lawyer made a strong case regarding the "waste". He showed blowups of the appraisal used by the City which really wasn't an appraisal at all. On it the appraiser clearly stated that he was appraising the property at a price his client, the City of San Diego, specifically requested. He wrote that disclaimer to cover himself.

Unable to refute the taxpayer's charge that this was a rigged "appraisal", Hillel and the City resorted to a defense that "this was a negotiated sale". According to the City's attorney the rules regarding fair market value do not apply in a "negotiated" sale.

It is very disturbing that the City Attorney's Office would make this argument, and back it up with a lie: stating that the November 20, 2000 Resolution authorized this sale, when they clearly knew it did not. Read the November 20, 2000 Resolution again.

Was Suzanne Varco hired to say all this in court? The City's defense depended upon it (it's now in the transcript). Was she hired to say what the City Attorney's Office knew to be false? If so we have bigger problems in San Diego than even I had imagined. Are they now hiring people to lie for them? It certainly seemed that way in court.

Fortunately Judge Quinn did not rule on the case yesterday but took it under advisement. She asked for and got an undertaking from the City that it would not close the escrow before November 20, 2006, when she promised to have her decision.

Aguirre has one last chance to rewrite the Resolution dated May 15, 2006 as it should have been written in the first place, in compliance with the law. To prevent "waste" this will require restarting the sale process as of May 9, 2006 and declaring all negotiations prior to that date unauthorized. It will require a whole new RFP. The taxpayer's "waste" law suit will then be moot. That is the proper course for the City.

This City cannot afford another scandal. The taxpayer's will undoubtedly prove "waste". We particularly need to be able to rely on our City Attorney's Office to tell us the truth.
 

 
 

Neighborhood Groups are the ultimate stakeholders in this city. 11/09/06

 
 

by Pat Flannery

The City Council must resolutely resist being ploughed under by Sanders' team of super-aggressive ideologue "reformers". Interviewed the night of the election, Carl DeMaio looked like a wide-eyed fanatic who at any moment might lead a group of club-wielding "reformers" onto the 10th Floor of City Hall and smash up everything in sight.

These people are not reformers, they are totalitarians. They want total power.

The popular vote for Props. B & C was not a vote for mayoral power, it was an anti-union vote. Italiano, Saathoff and Smith overplayed their hand over the last ten years. Their unions are now facing destruction in court as they did at the ballot box. Aguirre will win his pension case because the popular climate is anti-union. Not a very proud legacy for Ann Smith, whom her followers looked upon as the union princess.

Ann Smith and Jack McGrory are the chief architects of San Diego's pension problems. McGrory was a union sympathizer, which was why they recommended, even insisted upon, him for City Manager. Any other City Manager would have stopped Ann Smith in her tracks and she knew it. It is a travesty of justice that today she gets to play lawyer in the pension case when she belongs in the dock.

The biggest political dilemma facing San Diego today is to replace failed union power with people power as the counterweight to developer greed. The unions let the people down in that they sided with developers to achieve their own narrow interests. The new power can only come from strong community groups. It is instructive that such citizen groups are what the mayoral power-grabbers fear the most.

Now that the mayor and his wide-eyed privatization fanatics like Carl DeMaio have emasculated the unions through Prop C, it is essential to show the City Councilors, especially those who will be running for re-election, that there is a new force in town - neighborhood groups. These are the ultimate stakeholders in this city.
 

 
 

A man we can best consign to our past. 11/06/06

 
 

by Pat Flannery

I dropped by Judge Barton's court room today for a couple of hours to watch Mike Aguirre and Ann Smith question former City Manager Jack McGrory. I wanted to look McGrory in the eye and watch his performance, cocky and polished as always.

The purpose of the questioning was to help Judge Barton decide whether he can fairly roll back benefits granted to certain City employees in 1996 that may be found illegal, when such employees are not represented in the case. Some city unions are not represented in court and some city employees or retirees did not even belong to a union. That is Barton's quandary.

But the answer to his quandary is readily at hand - if he chooses to see it. McGrory didn't belong to any union but he knew very well that the benefits he was "negotiating" with Ann Smith and Judie Italiano in 1996, would apply to him. Everybody knew that the City Council would take whatever the City agreed with the major unions and apply it across the board to everybody. Otherwise there would be a two-tier system.

If these "unrepresented" employees had no problem accepting the benefits negotiated without their presence or participation, they should have no problem accepting the outcome of this trial, which appropriately enough, is being conducted without their presence or participation. Nor should Judge Barton. There is nothing unfair about it.

Jack McGrory was a child of this City. It sent him to college for a bachelor's, a masters and a law degree. His specialty was labor relations. He was the City's labor relations manager for years. For a very long time now the city unions have been able to mold the labor relations position into little more than an extension of their own union.

McGrory had a very comfortable relationship with union people like Judie Italiano, Ron Saathoff and their attorney Ann Smith. They were all in "labor relations". They wandered in and out of his office as freely as their own. Cathy Lexin carried on the tradition after McGrory became City Manager. And we all know what happened to her.

This is the key to this whole saga of greed: McGrory was the unions' choice for City Manager. He was one of them. The union tail wagged the City dog. The City Council was unable to resist because many of them owed their seats to the unions. Rape of the City's finances was inevitable. It was impossible to be elected without either union or developer backing - Republicans the developers and Democrats the unions.

I watched as slick McGrory tried to put a good face on that rape yesterday. He tried, but the facts belie him. He abandoned the City that nurtured him the moment he got his pension packet through City Council. The pension rape could never have happened without him. The whole sordid deal was cooked up in the cozy security of his office - McGrory's long legs up on his desk while his best buddies, Judie Italiano, Ron Saathoff and Ann Smith, wandered in and out as the humor took them. In the labor relations business it is called "meet and confer". The poor tax payer gets shafted.

I wanted to get up and leave in disgust when McGrory cynically replied to an Aguirre question regarding the five year "purchase of service credit" he made just prior to retiring: he said he couldn't remember whether he purchased them at the old rate or the new rate i.e. before or after he had "negotiated" a better purchase of credits deal. And we trusted this guy to run our City for all those years! Maybe we deserve what we got.

After McGrory got everything he wanted from the City, after it had educated him and nurtured him, he abandoned it like an old nag he had used and abused without mercy. He stuffed his retirement kit bag full of all the goodies he could lay his hands on and at the young age of 52, he walked out whistling into the golden pastures of the private sector where Sol Price and John Moores were plying him with salaries the rest of us can only dream of.
 

 
 

The law is the same for everybody, even for Sanders and Hillel. 11/05/06

 
 

by Pat Flannery

Here is what has to happen in order for the City of San Diego to sell real property, according to §22.0902 of the San Diego Municipal Code:


"Sales of Real Property
Except as otherwise provided in the City Charter, the Council shall sell the real property of the City in compliance with the requirements herein established. No real property belonging to the City shall be sold except in pursuance of a resolution passed by an affirmative vote of five members of the Council, which shall contain the following:
(a) The reason for selling such real property;
(b) A description of the real property to be sold;
(c) A statement of the value of such property as disclosed by an appraisal made by a qualified real estate appraiser, who may be a professional appraiser or a qualified employee of the City of San Diego, together with the minimum amount the Council will consider for the sale of each parcel of property;
(d) A statement that the City may at its discretion pay a real estate broker’s commission under the provisions of Section 22.0905 for the sale of such real property;
(e) A statement that the property will be sold by negotiation or by public auction, or by sealed bids, or by a combination of public auction, and sealed bids; providing, however, that in the event that such property is to be sold by negotiation, then the reasons therefore shall be included in the resolution."

Now read this Resolution written by Leslie Fitzgerald of the City Attorney's office on May 11, 2006, following a Meeting of the City Council on May 9, 2006. You will notice that all the "WHEREAS"s took place prior to that Meeting.

Why is this so important? Here is why: Jim Waring was aware that prior to May 9, 2006 he did not have City Council authority to SELL a particular piece of land to Hillel (the 2000 City Council Resolution only authorized a LEASE). To confirm this he wrote this email to Betsy Kinsley, Scott Peters' Chief of Staff. Unfortunately for Mr. Waring (and Hillel) if the City Council had not authorized a SALE (only a lease) they had not authorized negotiations with a purchaser, Hillel or anybody else, prior to May 9, 2006.

Mr. Waring's authority to effect a SALE started on May 9, 2006. No sooner. The Resolution drafted by Leslie Fitzgerald is not in compliance with the Municipal Code and therefore has no effect. Another example of a City staff person, in this case at the City Attorney's office, bending over backwards to facilitate a powerful interest group.

But the law is the law. The City Attorney must now rewrite this Resolution or face serious legal challenges in court. It has already begun. This lawsuit will be heard on November 9. It charges the City with "waste" and accuses Mayor Sanders and Hillel with "collusion". City Beat did an exposé on it last week. This is not going to go away.

Leslie Fitzgerald was a carryover from the bad old days of Casey Gwinn. She has since left Mike Aguirre's office. In writing this flawed Resolution she could not have been unaware of her "omissions". That's how things were done in those days. She wrote a backdated check for Waring and Sanders.

She wrote: "WHEREAS on November 20, 2000, the City Council authorized READ staff to enter into exclusive negotiations with Hillel of San Diego". She forgot to mention that those "exclusive negotiations" applied to a lease only. Nor did she comply with §22.0902(e). There needed to be a declaration that the property was either to be sold by negotiation or by public auction. That was not done. If the sale was to be by negotiation a new request for proposal (RFP) needed to be issued. That was not done.

But it is not too late. There is no reason why the City should be exposed to law suits because of Ms. Fitzgerald's errors, deliberate or otherwise.

She sent this letter to the City Clerk, which would seem to indemnify the City in the event of law suits and allow the hiring of an outside attorney. Now the City has indeed hired an outside attorney to represent it in this "waste" case. That outside attorney is none other than Scott Peters' former law partner, Suzanne Varco of Opper and Varco.

Council President Scott Peters founded Peters and Varco with Suzanne Varco. It became Opper and Varco when he was elected to the City Council.

Opper & Varco has managed to become CCDC's legal counsel. We all know that CCDC is not shy with the bucks - if you give them the advise they want. Suzanne Varco is apparently telling them what they want to hear with regard to California’s Polanco Redevelopment Act. She told them about the sweeping powers they have under that Act. She told them that they can even delegate their "ministerial" powers "without further review or ratification". They must love her at CCDC.

Remember the scandal about Kelco and other large industrial users being charged the same rate for their heavily polluted wastewater as water from domestic sinks? It saved Kelco millions per year. Who did Kelco hire to lobby the City when Frye and others tried to reform the rate system? Opper and Varco!  Peters was even on the City's "Clean Water Task Force". "The matter should be investigated," said City Attorney Mike Aguirre at the time. That's why I don't think Aguirre was told about any of this.

If there really was collusion between Mayor Sanders and Hillel it can easily be ended by simply following the law. Rewrite the May 9, 2006 Resolution. If Hillel wishes to purchase that particular piece of property they should bid on it like everybody else.

According to this letter from a prominent realtor in La Jolla the property would sell for between $2,400,000 and $3,000,000. This sure sounds like deliberate "waste" of City land to me. It smells like another sweetheart deal by Peters, Sanders and Waring.

The transaction has not yet been consummated. It is held up pending a decision by Judge Linda Quinn on Thursday November 9, 2006. It should not be left to a judge. The City Attorney's Office can put a stop to this right now by simply rewriting the May 9, 2006 Resolution as it should have been written, in compliance with the law.
 

 
 

I can't imagine the courts upholding Ann Smith's premise. 11/03/06

 
 

by Pat Flannery

Following the pension case closely through the press (Jennifer Vigil for the U-T and Evan McLaughlin for the Voice) I haven't noticed anything new so far. The most significant point was made yesterday by City Attorney Chris Morris on the stand.

Mr. Morris explained to the court that, despite Ann Smith's (and incidentally Scott Peters') mischaracterization of the 2004 Gleason Settlement, that action by the City only applied to its annual contributions. It did not address the legality of the benefits.

Ann Smith's case depends on two things:
(1) that the "Gleason Settlement" validated the benefits granted in 1996 and 2002.
(2) that pension benefits, once granted, however illegal, are protected under Federal and State labor law.

Read this report from the Pension Board to the City Council regarding the 2006 City Budget. It contradicts Ann Smith regarding Gleason and explains what a “prior service liability” is. It acts as a good summary and history of the pension issue.

The thing that bothers Judge Barton the most is that he will be required to set a legal precedent regarding whether labor law trumps California government law. Well, he is stuck with it. Judges love to quote a precedent which gets them off the hook. In this case their is none. Perhaps its because no city council has ever abused its powers to the extent ours did. I can't imaging the courts upholding Ann Smith's premise.
 

 
 

The anatomy of a smoke and mirrors "Redevelopment" deal. 11/01/06

 
 

by Pat Flannery

I am still waiting for the Cost of Issuance for the October 2005 $152 million refinance of a BofA loan made in 2004. All I got from the City so far is this. It refers to the original $152 million BofA loan, not the one that was refinanced, after only one year, in October 2005. It shows $412,253.65 issuance costs for that 2004 loan. But it does not include any brokerage fees, even though I know both deals were arranged by a brokerage firm.

In the meantime let's take a look at a typical smoke and mirrors deal in Poway. It involves the Poinsettia Mobile Home Park and has more twists to it than a crime novel.

The City of Poway purchased this mobile home park in 1988, when they issued this $10,650,000 Bond (in the form of a "Certificate of Participation" or COP). How much actually went to the seller and how much for costs was never disclosed. Then they refinanced it with another Bond of $12,640,000 in 1992. They love refinance deals - they generate lots of big fat fees for their friends in the financial services industry.

In 2003 Poway Redevelopment Agency (RDA) sold Poinsettia Mobile Home Park to Poway Manufactured Communities LLC, a 501C3 subsidiary of Wakeland Housing LLC, also a 501C3, owned by a guy named Kenneth Sauder. Here is the Grant Deed. Click and read the "post-it" notes I have attached to it.

Here is a piece in the San Diego Daily Transcript on Ken Sauder, dated August 3, 2006. Sauder is a strong advocate of any source of public funds for affordable housing. That's his business. As chair of the San Diego Housing Federation he wrote this piece in the U-T on June 22, 2006 urging passage of State Prop. 1C in November. Poway RDA is pushing affordable homes because it has a huge tax "diversion".

Mr. Sauder (Poway Manufactured Communities LLC) signed a Note and Trust Deed to the City of Poway for $10,615,000. The City of Poway then issued a $10,615,000 Housing Revenue Bond, pledging future revenue from the mobile home park and secured by Sauder's Trust Deed on the property. Mr. Sauder put no money into the deal. He got 100% financing and paid no closing costs.

A companion "Regulatory Agreement" imposed an obligation on Mr. Sauder to provide housing for "persons of very low income". That gave the Revenue Bond tax-free status.

From here on it is all smoke and mirrors.

The issue terms of the $10,615,000 Bond stipulated that the proceeds were to be used for the following purposes:

(1) to "fund" the purchase by Mr. Sauder (i.e. pay off the existing $12,640,000 bond);
(2) to "finance certain facilities, replacements and improvements" in the Park;
(3) to "fund a Debt-service Reserve Fund" and a "Repair and Replacement Fund";
(4) to "pay certain costs of issuance".

As the Bond issue undertook to "prepay and defease" this underlying $12,640,000 loan, some additional money was needed. The $10,615,000 Bond was not enough.

Mr. Sauder was not putting in anything so the only source of cash was the City Treasury. Sauder was asked to sign a concurrent 2nd Trust Deed for $5,112,230. The old "silent 2nd" trick. It is fraud on a senior lender if not disclosed (it rarely is).

Did the Poway City Council disclose this additional financing to the Bond purchasers when they signed their "Official Statement"? For Poway's sake I hope they did.

The odd amount on this 2nd TD of $5,112,230, suggests to me that it was a "catch-all", designed to sop up all the costs and loose ends of the entire transaction. Effectively it was the feeding trough for all the "service" people involved. Typically the City Treasurer opens a disbursement account from which he/she pays off all-comers.

Here are my questions to the Poway City Treasurer:

(1) was the old Bond, $12,640,000, fully redeemed?
(2) what was the Cost of Issuance of the new Bond?
(3) Only an additional $2,025,000 from the 2nd TD was needed to redeem the old Bond, which left  $3,087,230. That is a lot of "closing costs". Almost 30% of the sale price. How much was put into reserves? What happened to the rest of it?

But the most amazing thing about the 2nd Trust Deed is that it gives an unlimited, open-ended, line of credit to Mr. Sauder!

Read the parts I have underlined. Any addition to the original amount of the Note does not have to be recorded at the County Recorder. For all we know that Note could now be triple the original amount. The Trust Deed, as originally recorded, covers it all.

Finally, apart from the financing questions, another huge issue arises:

In the Grant Deed to Sauder, the City of Poway clearly and unambiguously gave itself the power to change the covenants, conditions and restrictions that "run with the land", any time it pleases and in any way it pleases. In other words it can "approve" a Sauder sale to a developer like McMillan any time it wants.

Even more amazingly Sauder is free of the restrictions whenever he pays off his loans of $10,615,000 and $5,112,230! He could do that any day by selling to a developer. He wouldn't even need City Council approval. All he has to do is pay them back.

Now they want to do the exact same deal with the exact same person with another mobile home park called Poway Royal. Where will all this end? How do we start putting it right? I do love San Diego County but I don't want to live in a bankrupt city. These city officials are totally out of control. A way has to be found to reign them in.
 

 
 

The CPGs have the votes - therefore the power. 10/31/06

 
 

by Pat Flannery

"The recognized Community Planning Groups created by Council Policy 600-24 and the Community Planning Committee created by Council Policy 600-9 are legislative bodies of the City of San Diego. Thus, their meetings are governed by the provisions of the Ralph M. Brown Act. Should the CPC or any CPG create standing committees, the meetings of those committees must also comply with the Act."

So says this Memorandum of Law from City Attorney Mike Aguirre dated October 27, 2006, effectively ending the despotic reign of Betsy McCullough, Deputy Planning Director, who on October 17, 2006 sent  this letter to all members of the CPC (Community Planners Committee)  illegally announcing that: "After consulting with the CPC Chair, therefore, we are canceling the October meeting", i.e. canceling the regularly scheduled CPC monthly meeting for Tuesday October 24, 2006!

As I said in my blog dated October 22, 2006, this showed the incredible arrogance to which Betsy McCullough and Steve Laub, had  become accustomed.

Below is a map of the CPGs in San Diego. It is easy to see why the autocrats at DSD and Planning are scared to death of them. If these citizen groups ever got together and acted in concert they would have more political power than the unions and the developers combined. Why? Because they have the votes. All the campaign money in the world cannot trump the influence these people can bring to bear if they choose.

Map of Community Planning Groups


 

Now look at the Council Districts map below. Each District consists of about a half dozen Community Planning Groups. Imagine the influence these CPGs could have on their City Councilor if they banded together in each District? Enough to give any City Councilor a case of the shingles. How Jim Waring and Betsy McCullough must dread such a development. Right now they can intimidate them, one CPG at a time.

Well that is about to change. The City Attorney has made it crystal clear that Betsy McCullough and Jim Waring are mere staff: "the City’s Planning Department provides support and training for the groups". I hope that Ms. McCullough now understands the magnitude of her sin against good government canceling the October CPC meeting was. The least she should do is send a letter of apology to all CPG chairs.

Here is list of their email addresses, all of them. She could send each a nice email. After all, she works for them - they are her bosses.

Indeed, each of us should send a nice email to the CPG chair in our own community, showing our appreciation and encouragement. I'm sure they would be delighted to hear from us. Why stop there, why not send all of them a "Thank You" note.

The CPGs might use the above email list to start working more closely together and start supporting each other in their appeals. Now that would really give the autocrats at DSD and Planning heartburn. Now, it's each small group against the might of DSD.

Next time a group of citizens from a Community prepare to go before the City Council to appeal an inappropriate development project, they might consider calling in help from neighboring Communities. Each one of them has at some time experienced a mauling at the hands of these developer-serving DSD staff. When was the last time an appeal was won against this DSD dictatorship? They treat citizen groups as the enemy!

District 1:

La Jolla
Torrey Hills

Torrey Pines
Carmel Valley
Del Mar Mesa
Rancho Penasquitos
Pacific Highlands Ranch
University City

District 2:

Peninsula
Ocean Beach
Mission Beach
Pacific Beach
Midway Pacific Highway
Old Town
Uptown
Centre City

District 3:

Greater Golden Hills
Greater North Park
City Heights
College Area
Kensington-Talmadge
Normal Heights
Uptown

District 4:

Greater Golden Hills
City Heights
Eastern Area
Southeastern San Diego
Encanto
Skyline-Paradise Hills

District 6:

Clairemont Mesa
Linda Vista
Kearny Mesa
Serra Mesa
Mission Valley

District 7:

East Elliott
Tierrasanta
Navajo
College Area
Eastern Area

 

Map of City Council Districts






District 5:

San Pasqual Valley
Rancho Bernardo
Carmel Mountain Ranch
Sabre Springs
Miramar Ranch North
Mira Mesa
Scripps Miramar Ranch
Rancho Encantada



District 8:

Barrio Logan
Southeastern San Diego
Otay Mesa-Nestor
San Ysidro
Otay Mesa

 
 

Affordable Housing can be a city's "Nuclear Waste". 10/30/06

 
 

by Pat Flannery

"In a county with a shortage of affordable housing, Poway, which has 45 percent open space, will feel pressure to change its zoning to allow more multifamily housing, Cafagna said." This strange quote caught my eye in a San Diego Union Tribune story on October 6, 2006. I decided to investigate. Why would Poway's Mayor, Mickey Cafagna, be "feeling pressure" with affordable housing? What was that all about?

Then I saw this when the U-T endorsed him (they love developers): "We currently have a very aggressive program of partnering with private developers to build affordable housing, with over 750 units planned over the next five years. I would like to continue that program." 750 units! For Poway! I don't think San Diego needs that many.

My first thought was if San Diego might be dumping its affordable housing problem across the fence into Poway. We have a huge NIMBY problem with affordable housing here in San Diego. Almost all downtown is in "redevelopment", generating thousands of million-dollar condos but in the process generating a set-aside obligation of 20% of every dollar spent by the redevelopment agency. Of course the million dollar condo owners don't want them anywhere near their tony pads. Hence the problem.

Cities who get hooked on redevelopment tax diversion dollars see "affordable housing" as nuclear plants' see nuclear waste. They don't know what to do with it. This "unwanted nuisance" is creating all kinds of weird abuses like turning existing mobile home parks and existing apartment complexes into "affordable housing".

I will explain in an upcoming blog how cities are inventing devious ways of meeting their affordable housing obligations by purchasing and "refinancing" existing low income projects like mobile home parks and single room occupancy hotels, encumbering them with massive debt and then giving them away to their friends under the guise of 501C3s. Poway has a few prime examples. But even that con job only goes so far. It has topped out in Poway with the "conversion" of three huge mobile home parks.

Mickey Cafagna is Chairman of the San Diego Association of Governments (SANDAG) and I wondered if he weren't thinking more on a County level than on a Poway level. I still don't know. But I do know that Poway now has an enormous "affordable housing" problem, similar to the downtown San Diego problem. That's what you get when you go hog-wild on a redevelopment kick. It has serious downsides.

So what is going on in Poway? Well, to put it mildly, Mayor Mickey Cafagna and his trusting City Council (they seem to follow a "Mickey knows best" policy), have created for themselves a giant social problem in that Poway as a city must now have a disproportionate level of affordable housing. I don't think the folks understand that. 

So far the City has managed to hide it from all but a few activists. With
94.59% of the 1% property tax collected within the city limits of Poway going to the Redevelopment Agency, instead of to the City's General Fund (the highest "diversion" in the County), it is easy to see where their "affordable housing" problem is coming from.

Poway is in danger of becoming the "affordable housing" Mecca of San Diego County. If you build them they will come. Not exactly what the voters intended when they kept voting in Mickey Cafagna. He is a developer and knows this stuff very well. He is also the Chairman of SANDAG and knows it from that vantage point. But has he shared all his knowledge with the voters of Poway? I doubt it. Has he told them that a by-product of their new Town Center ("Mickey's Monument") will be 750 affordable housing units?

But just as in physics "every action has an equal and opposite" reaction, the inevitable has happened. Two very popular citizen-activists have thrown their hats in the ring to stop this redevelopment craziness. Activists Connie Messina and Joe St. Lucas look like taking two Council seats from the incumbents and Nick Stavros is mounting a last minute write-in challenge to mayor Mickey Cafagna. Now that's exciting.

Maybe the "Poway Revolt" will electrify the rest of San Diego county against this insidious disease called "redevelopment". The only ones who benefit from this tax diversion are the developers and it is no coincidence that it has reached its highest  manifestation in a city run by a developer/mayor, Mickey Cafagna of Poway.

The San Diego U-T may have endorsed Cafagna, but this blog and I hope the entire activist community in San Diego, endorse Messina, St. Lucas and Stavros in Poway.
 

 
 

Thanks Mr. Hall. Join Tevlin and Fulhorst on the Roll of Honor. 10/29/06

 
 

by Pat Flannery

Matt Hall of the U-T made a huge contribution to a clean San Diego government with this piece on Saturday. There may be many things broken in San Diego's public life but Matt Hall is not one of them. He can take his place alongside Tevlin and Fulhorst.

The reason such people are important is that they are the antithesis of Robert Manis. This is all about integrity and the lack of it and we already know which is which.

Matt Hall did not have to write this story. He could have played it safe and wrote the same claptrap emanating from other media sources that rely heavily on the Mayor's Office for their daily stories. Mr. Hall is not as easily spoon-fed "information" by the Mayor's spin machine. Obviously he does not need to suck up to them for his stories.

What Matt Hall picked up on was a classic Tom Shepard political three card trick with a smelly $50,000 "gift" from Doug Manchester. This age-old conman's  trick is to rearrange the cards quickly in order to confuse an observer who is induced to foolishly bet which card is the Queen. Shepard is a master at playing political "Find the Lady".

Jim Waring was quite happy to give Manchester a DSD "finding" that his Navy Broadway caper does not need a new EIR. Waring has plenty heel-clicking sycophants like Robert Manis at his dictator's blockhouse, otherwise known as DSD. They will sign any "finding" put in front of them. Under Waring and Escobar-Eck, key DSD officials either sign or take a hike into the cold wilderness of non-government employment.

But Shepard and DeMaio (the Mayor's political commissars who are privy to all politically sensitive mayoral email and telephone traffic) saw an opportunity for a refueling pit stop in their privatization-of-government Prop C race. A cash pump - Manis' signature on this piece of supreme treachery - loomed up ahead. That's what Shepard gets paid big bucks for. It was his job to shake down Manchester for Prop. C.

Whether we like it or not, that is how our system works - nothing illegal about Manchester giving $50,000 to the Lincoln Club knowing that it would be immediately forwarded to Sanders' "Reform City Hall" marketing fund for Prop. C. Can you imagine how many more such "gifts" Prop. C's "privatization" will bring? Enough to propel Sanders to the Governor's chair? That's the plan. Shepard and DeMaio are on a roll.

But for now all "Pappa" Doug cares about is his NBC "finding" duly signed by an authorized DSD official. His $50,000 enabling "donation" was a no-brainer of a bargain.

So what do we do to stop this
"Find the Lady" politics? We can't lay a glove on Shepard and Manchester. They have high-priced lawyers to keep them on the right side of the law. The way we stop it is by putting the fear of God into weasels like Robert Manis. Manchester's $50,000 "gift" isn't worth a plugged nickel unless a middle-level official like Manis is willing to sell out his employer, the people of this city. They do it simply to keep their jobs under autocratic misfits like Waring and Escobar-Eck.

As I said in a previous blog, Waring and Escobar-Eck have no "business" being in government. They would make excellent CEOs for developers like Manchester and Moores. But they are complete misfits in government. Which is precisely why Sanders hired them. This aberration was inevitable once Sanders' developer backers got him into office. They are now getting their money's worth in spades.

But we can defeat them. We simply hold our City officials personally liable for their official actions. Mr. Manis for example, is in serious breach of this part of the San Diego Municipal Code, which requires him and his boss Jim Waring: "To ensure to the maximum extent possible, that before public review, all environmental documents incorporate the latest pertinent technical or scientific information and are factually accurate and consistent." We will hold their feet to the flames on that and much more.

Let them defend their 1990 NBC EIR as the "latest pertinent technical or scientific information" before the City Council and then we will go after them individually. They are wrong and they know it. They have pandered to Manchester and they will pay.

The City does not indemnify them when they commit illegal acts. We have State Laws, a City Charter, Municipal Codes and a City Attorney willing to enforce them. Unlike Casey Gwinn, Aguirre will not defend City officials who break the law. Nor is he allowed to. When a City official deliberately takes that road, they are on their own.

In his long fight to separate the City from individual City Councilors vis-à-vis the SEC, Aguirre has proven that he understands this. He has infuriated "individuals" like Peters and Madaffer, but he has won. I suspect it cost him having to agree to a three year monitor, rather than one for 120 days, but that's politics.

This new order of things should be a warning to the Robert Manis's at City Hall. Despite their false promises, their bosses cannot defend them if they break the law. The City Attorney will not defend them if they break the law. The days of Casey Gwinn are gone.

The point is that a developer cannot bribe an official unless the official takes the bribe. Sometimes, sadly, the bribe is simply keeping his/her job. That's what has to change.

Thanks again Mr. Hall, there is a beer with your name on it waiting at The Old Sod, or would that be a bribe? Oh, what the heck, I'll buy Bob Kittle one too (if he'll leave the bowtie outside - they do have a dress code you know).
 

 
 

Tevlin and Fulhorst deserve our full support. 10/27/06

 
 

by Pat Flannery

Evangelist of Privatization, Carl DeMaio and his born-again San Diego disciple, Jerry Sanders, are spending hundreds of thousands of outside dollars (they have already outsourced the Prop C campaign) telling punch-drunk San Diego voters that their city government is broken and that unleashing corporate greed is the only way to fix it.

According to DeMaio and Sanders: the City Council is a joke; all good things emanate from the Mayor's Office, now blessed by the Holy Ghost through the hands of Carl DeMaio. They proclaim Privatization to be the new true god and DeMaio his Profit.

I am not the only one refusing to be baptized into this new religion. I am delighted to hear the clear voices of two very fine civil servants, Andrea Tevlin, Independent Budget Analyst and Stacey Fulhorst, Executive Director of the Ethics Commission.

Here is what Andrea Tevlin is saying about this new Mayor-worship. She has appealed to the City Attorney to enforce the City Charter.

Like me, she sees the danger of political cults and like me, she defends the City Council as the only institution that has authority over the purse strings. Like me, she treasures it as the only government institution readily accessible to the people. Bless her for that. In her professional opinion she says, this government is not working as the voters intended in Prop F, the "strong mayor" initiative.

If this city's government is indeed broken, it is the Mayor who is breaking it!

Stacey Fulhorst is trying to require people like Carl DeMaio and his Reason Foundation/Performance Institute to register as lobbyists. DeMaio responded with a pastoral letter to his faithful lambasting her Lobbying Ordinance Review.

This guy spends more time in City Hall than the cleaners, yet currently he does not have to register as a lobbyist - because he represents a "think tank". He has unlimited money but will not tell where it comes from. But we all know it comes from the Reason Foundation, an extreme right wing libertarian anti-government organization.

They are the ones behind State Prop 90, the so-called "Protect our Homes Act" or anti-eminent initiative. I must admit they had me fooled for a moment. I initially thought Prop 90 was just a curb on eminent domain abuse until I read their rationale on it.

When these people say "private property" they mean developable land!

They want nothing to stand in the way of urban sprawl. They describe all land use legislation as the "regulatory state", which they universally condemn. Regulation they say can "dramatically reduce the property's market value, imposing an economic hardship and significant loss of value upon the owner".

Can you imagine the law suits Doug Manchester would file if Prop 90 passes?

DeMaio is an evangelist for that extreme right-wing ideology intent upon hollowing out government wherever they find it. They want to replace it with unfettered privatization. Unfortunately, his Reason Foundation money has gained him unlimited access at the Mayor's Office. But fortunately, Andrea Tevlin and Stacey Fulhorst see the danger.


With people like Tevlin and Fulhorst in key positions, this city's government is anything but broken. These fine public servants deserve our full support. Unlike Sanders they are listening to the people, not mega-rich right-wing "think-tanks" from Washington DC.
 

 
 

How our Citizen Army is defending our City. 10/26/06

 
 

by Pat Flannery

Ian Trowbridge is San Diego's  Horatius at the Bridge:

Hew down the bridge, Sir Consul, with all the speed ye may!
I, with two more to help me, will hold the foe in play.
In yon strait path, a thousand may well be stopped by three:
Now, who will stand on either hand and keep the bridge with me?

In writing this Appeal, Trowbridge (how aptly named) has rushed onto the DSD/Navy Broadway bridge to hold the developers (Etruscans), long enough for us San Diegans (Romans) to destroy the DSD/NBC bridge (Pons Sublicius), over which the developers are pouring to destroy our city.

Then out spake Spurius Lartius; a Ramnes|Ramnian proud was he:
"Lo, I will stand at thy right hand and keep the bridge with thee."
And out spake strong Herminius; of Titian blood was he:
"I will abide on thy left side, and keep the bridge with thee."

A young engineer named Katheryn Rhodes, an unlikely heroine from Point Loma, has sprung to Ian's side to "keep the bridge with thee", by researching and compiling this new information outlining the real facts about the Navy Broadway site. It is devastating.

But with a crash like thunder fell every loosened beam,
And, like a dam, the mighty wreck lay right athwart the stream:
And a loud shout of triumph rose from the walls of Rome,
As to the highest turret-tops was splashed the yellow foam.

Now it is up to the rest of us stouthearted San Diegans (Romans) to "Hew down the bridge, with all the speed we may" (the DSD/NBC bridge). We have approximately three weeks to destroy this outrageous piece of treachery, written by Robert Manis, Assistant Deputy Director of our City's Development Services.

In it, he attempts to deliver our city into the hands of an unscrupulous developer, Doug Manchester (already gorged on corporate welfare from this city and others) by asserting that after 16 years nothing has changed in and around Navy Broadway, that an Environmental Impact Report written in 1990 is as good as if it were written today. Has any city ever been more betrayed by one of its own employees?

Hang in there citizen Ian and citizen Katheryn. While you bravely hold the enemy on the other side, we your fellow citizens will hew down the DSD/NBC bridge. Then we will march on the Senate (City Hall), where five traitorous Senators (City Councilors and we all know who they are) sit poised to deny your appeal and give the keys of our precious city to that concrete-pouring destroyer of waterfronts, Doug Manchester.

These five City Councilors will experience a little citizen lobbying for a change. They are used to closed-door, money-dropping, elitist lobbying. Let's show them what a real open republic looks like. That's what we are supposed to be, isn't it?

After Horatius' heroic and successful defense of Rome at that fateful bridge over the river Tiber in 500 BC, Rome became a Republic, the first in the world. Let's hope our citizen defense of San Diego, at the treacherous DSD/NBC bridge, has a similar outcome. If it hadn't been for Horatius' brave stand the world would have known only Etruscan monarchy. The glories of the Roman Republic would never have happened.

Start by reading what Ian and Katheryn have already written and get involved in the defense of your city. I will continue to post their appeal as they get it fully written. We need to have all the facts at our finger tips on the day of the appeal. The facts will speak for themselves, but only if we stand them up in front of the City Council on that day. The best source of NBC facts is Katheryn Rhodes special NBC web site.

This is the most important appeal ever in the history of San Diego. The Manis' "finding" is a deliberate abomination of logic. It is the exact antithesis of his fiduciary responsibility to this city. We must make it clear to every City Councilor that to uphold this outrageous "finding" will be an illegal act and will have consequences.

Manchester's invading army will include the best land use lawyers money can buy. They will tell us that we don't know what we're talking about, that we should listen to our betters, that "Pappa" Doug knows what is best for us - the great unwashed of his city.

Our sincere thanks to both Ian and Katheryn for all their hard unpaid work on this.
 

 
 

The SEC is not the problem - Sanders is. 10/25/06

 
 

by Pat Flannery

“Silence is golden”, the U-T quoted Aguirre. Sorry Mike, in government silence is never golden. It is deadly. Mike of all people should know that.

Let's suppose for one moment that this "golden" silence is demanded by the SEC. Let's take Mike's word that “I don't want to do or say anything that would in any way jeopardize the city's position with the SEC.” I can think of some reasons why Mike might need to be careful. He may be afraid that individual Councilmembers might later sue the City if he did anything to exacerbate their problems with the SEC.

His silence therefore, could indicate that the SEC are going to come down hard on individual Councilmembers and he wants to keep the City clear of it. If that is the case he is honestly doing his job for the City as he sees it.

But the SEC must also understand that this is a Municipal Corporation, with responsibilities to its 1,300,000 shareholders, the citizens of this city. The City has responsibilities under the Government Code of the State of California, which requires more openness than an ordinary corporation. Mike Aguirre is not just another corporate lawyer, he has overriding responsibilities of openness and disclosure to the people.

If Mike is worried about being challenged later or caught in a legal vise, all he has to do is reread his Oath of Office. His first responsibility is to the people of this city. He must remind the SEC of that. He must remind the Mayor and the City Council of that.

Whatever went on with the monitor deal is very troubling for those of us who are on the other side of  the “Silence is golden” curtain. The SEC only requested a monitor for 120 days, while Sanders insisted upon, and got, 3 years. We have that on good authority - Bob Kittle. And nobody at City Hall has disputed it.

If Sanders exploited the legal problems of five individual members of the present City Council (a majority of the City Council) vis-à-vis the SEC, in order to force them to agree to a Mayor-appointed monitor for three years, then "somebody" should be worrying about that, not about upsetting the SEC.

The SEC is not the problem, Sanders is.

A three year monitor is a smear on this city as a whole. Cities don't commit illegal acts, individuals do. 1,300,000 people are now smeared because 4 or 5 City Councilmembers were negligent at best. That is a bad deal for the city and will have long-term adverse consequences. It may be good for those individuals who do not like the concept of individual responsibility (which seems to be everybody down there), but it is a setback for those of us who are trying to promote individual responsibility.

That is why I have been so adamant in opposing it. But how can an ordinary citizen oppose something that has been handled in such total secrecy? In constant breach of the Brown Act? Isn't it interesting that the only City Council Meetings Sanders attends are the Closed Sessions. He actually chairs them!

This bodes ill for what Sanders calls his "remediation". Moral "re-engineering" more like. Honest open government loves the light, dishonest closed government thrives in the dark. He will use his hand-picked "monitor" as a shield against prying citizen eyes, with as much secretiveness as in using the SEC to emasculate the City Council.
 

 
 

Prop. A - a regional airport or regional gridlock. 10/24/06

 
 

by Pat Flannery

Look at this picture. What do you see? San Diego's new Regional Airport?

Wrong - it will never happen. Because the Marines will never leave? Wrong again.

Take a look at two huge new residential projects already in play, colored blue opposite. Read what the San Diego City Planning Department has to say about:
Rancho Encantada and East Elliott.

Do you think maybe somebody is not telling us the whole truth here? The developers, City Planning and Development Services have a government/client relationship that is more privileged than attorney/client privilege.

Do you thing that maybe "somebody" has already colored in that area between the two blues? Encantada and Elliott? Personally I believe they have colored in the entire MCAS Miramar area and that that is what their opposition to Prop. A is really all about.

McMillin already owns Rancho Encantada. Read their Winter 2006 Newsletter. It tells a little about what is going on out there. Also the Catholic Bishop of San Diego must know something the rest of us do not. He is building a Catholic School out there.

The one thing we all know for certain is that as sure as the Navy left Miramar, the Marines will leave too. Located right in the heart of a busy metropolitan area it is totally unsuited to their mission. The next training accident will take care of that.

Pardee owns East Elliott. Do you think these two huge developers, McMillin and Pardee are not salivating over all that sweet MCAS land? They want the Marines to leave more than anybody. The last thing they want is a stupid regional airport eating up their precious developable land. That is why Jerry Sanders is not backing Prop. A. McMillin and Pardee made their preference clear to him - with their check books.

So, the North City voters do have a choice: a civilian airport or wall-to-wall housing and bumper-to-bumper traffic. The greater Miramar area could accommodate up to 250,000 people. It will be the last great urbanizing project for San Diego City.

On the other hand what would happen if Prop A. passes? It would be a giant pain in the rear for Sanders' and his developer friends. It would create this conditional land use restriction hanging over the whole North City area. The City Fathers would be constrained by a stupid promise to build a regional airport where thousands of McMillin and Pardee houses properly belong. Look what happened at Brown Field. Pardee took care of Ralph Inzunza and Ralph (with a little last minute help from Dick Murphy) took care of Pardee. Result: FedEx still flies out of Lindberg.

As far as McMillin, Pardee and Sanders are concerned, we already have a perfectly fine one-runway airport
located in a convenient soup bowl between Mission Hills and Point Loma. The Lindberg acreage is tiny compared to Miramar. You couldn't even fit a decent shopping center on there let alone a few thousand houses. Lindberg is on tidelands. Between the Port Authority and the Coastal Commission any decent developer would move to Las Vegas rather than go through all that hassle.

So there you have it. That's my take on the airport issue. Vote for Prop A, it may give us some small bargaining chip against the developers and the 500,000 people they will cram in there. Maybe more. Have you seen the way they build these days? How many "city of villages" do you think they could cram into Miramar's 23,000 acres?

In the unlikely chance that Prop A would actually give us a civilian airport at Miramar, when (not if) the Marines leave, a civilian airport would be a lot less noisy than the present MCAS. But it would be a hell of a lot better than what McMillan and Pardee (aided and abetted by our developer-financed Development Services Department) would give us - 500,000 people and total gridlock. That's the real issue, not an airport.


As I said at the top of this blog: the airport will never happen. The developers will never allow an airport to interfere with their carpet development of North City. If you've got any better ideas for fighting density in North City I'd love to hear them.

 

 
 

"The poor are always with us" - and so it shall remain. 10/23/06

 
 

by Pat Flannery

I thought I had been transported back in time to the French Royal Court in Versailles around 1790 where Marie Antoinette was holding a bake sale to raise money for cake for the poor of Paris and that she had invited all her effete courtly friends to the party.

No, I was not in bed dreaming, I was sitting in an auditorium in Point Loma Nazarene University attending a meeting of the San Diego City Council.

You get used to the dripping hypocrisy of it all if you attend the occasional City Council meeting as I do, but this one takes the cake, if you will pardon the pun. The matter under discussion tonight was:

"ITEM-200: In the Matter of the United Way’s Plan to End Chronic Homelessness in the San Diego Region. (Citywide.) PUBLIC SAFETY AND NEIGHBORHOOD SERVICES COMMITTEE’S RECOMMENDATION: On 6/14/2006, PSNS voted 4 to 0 to accept the draft plan and direct the United Way and the Leadership Council to develop an implementation plan for presentation to the full City Council in conjunction with the final Plan to End Chronic Homelessness."

We were treated to over two hours of self-congratulatory nauseous speeches by our very own "effete courtly friends" from the United Way. They even flew in some big wig do-gooder from Washington DC to make a long speech about nothing. He brought greetings from the White House and with his expensive suit and hot air speech, made San Diego sound like the Shining City on the Hill. I thought I was going to throw up - he probably never talked to a homeless person in his life.

What I learned from sitting through this two hours of excruciating hypocrisy was that San Diego spends $70 million a year on homelessness but nobody was able to tell Jim Madaffer where a penny of it goes. Total silence.

I learned that San Diego County has more than 9,600 homeless people. I learned that we have approximately 200 agencies and programs in the County that "service" the homeless. I learned that all this money and hot air has resulted in nothing more than self-acknowledged failure. But it sure feels good, according to the speeches.

This Point Loma Nazarene University "outsourced" meeting of the San Diego City Council was pure showmanship. It was held for the sole purpose of giving United Way a platform for its pompous pedagogic speeches. I noticed that Scott Peters did not even start the timer at the podium when they were speaking. But at the end he announced that "due to time constraints" there would be no time to hear from the many homeless creatures who somehow managed to drag themselves there.

Perhaps this sad contingent of invisibles, some of whom could not help coughing in the audience and breathing on the assembled gentry, just pushed their shopping carts into the brush nearby and spent the night in Point Loma, while the City Fathers and their United Way rich friends drove off in their rather more expensive shopping carts from the VIP parking lot.

At least Marie Antoinette was willing to offer them something! If it is left to the rich folk of United Way, the homeless will always be with us. But maybe out of the $70 million they can still spare just a little to "let them eat cake". We can only hope.
 

 
 

An outrageous denial of the public's rights. 10/22/06

 
 

by Pat Flannery

This letter was sent out to all members of the CPC (Community Planners Committee) i.e. all the 40 odd CPG Chairs - (Community Planning Groups), canceling the regularly scheduled monthly meeting on Tuesday October 24, 2006.

The writer, Betsy McCullough, Deputy Planning Director, says: "After consulting with the CPC Chair, therefore, we are canceling the October meeting". She can't do that.

Not according to the CPC ByLaws:


"ARTICLE VII MEETINGS
Section 1 Regular monthly meetings, except in August and December, shall be held at a location within the City of San Diego. CPC shall establish a regular monthly meeting date. A majority of the representatives or alternates present at a CPC meeting may vote to cancel the following month’s meeting.
"

There is no other provision for the cancellation of a meeting.

Further, ARTICLE VI of Council Policy 600-24 says: "Any attempt to develop a collective concurrence of the elected or appointed members of a recognized community planning group as to action to be taken on an item by members of the [planning group], other than at a properly noticed public meeting, either by direct communication, personal intermediaries, serial meetings, or technological devices, is prohibited."

That applies to CPC as well as the CPGs.

The reasons given in the letter for cancellation are spurious at best. This may be closer to the real reason: The Final Public Review Draft [dated October 2006] of the General Plan will be released at a press conference to be held by the Mayor on October 25.” Did Sanders instruct McCullough to let him preempt the CPC?

This is a career-stopper for Betsy McCullough and grounds for removal of her hand-picked CPC Chair, Steve Laub. They have both conspired to deny the public its entitlement under Council Policy 600-24, in order to accommodate a grandstand performance by Mayor Sanders on Wednesday, when he will imperially announce his Grand Plan for the City's land use. The idea is that this will be the Mayor's plan, not the citizens' plan. All that will be missing on Wednesday will be the trumpets.

This citizens' meeting needs to take place on Tuesday as scheduled, in order to protect the integrity and independence of this citizen land use advisory body. These people from City Hall may as well be wearing brown shirts and saluting Sanders.

Ms. McCullough has attempted to manipulate the land use advise this citizen body gives to City Government. She has grossly exceeded her powers as a civil servant by arbitrarily canceling its meeting. This action is now part of her record and should be taken into account in any future consideration of her services in government, here or elsewhere.

By obeying Ms. McCullough in this, Mr. Laub has demonstrated extreme indifference to the Bylaws of the community organization which he chairs. As chair, he has also failed to publish an agenda 72 hours in advance of Tuesday's regularly scheduled meeting nor to circulate the Minutes of the September 26, 2006 meeting.

His actions show a clear willingness to be controlled by powerful people in the City Government that he is charged with advising on community land use preferences. He has failed in his duties to those communities. He should be removed from his position as chair of this critical citizen committee. He is no longer fit to fulfill that function.

This totalitarianism by City staff simply has to stop. If elected City Councilors are to be held personally liable for their individual actions, so should staff, especially senior staff such as Betsy McCullough. This City is in financial difficulties because nobody was held personally accountable for abuses of power such as this. The best way to reestablish our reputation as a responsible city, from the credit agencies on down, is to hold the Betsy McCulloughs personally liable for outrageous actions like this.

This vital CPC monthly meeting should be held as scheduled, with or without an agenda. Her outrageous actions are agenda enough.
 

 
 

Poway is the canary in the coal mine. 10/21/06

 
 

by Pat Flannery

If you want to take a look at a "hollowed out" city, look no further than Poway. It tops the list for "tax increment diversion" in San Diego County. Here is a table I prepared from data obtained from the County of San Diego Tax Assessor:

This means that 94.59% of all the 1% property tax collected within the city limits of Poway goes to the Redevelopment Agency, instead of to the City's General Fund. This 1% property tax is usually the largest revenue item on any city's budget, followed by sales tax.

Contrary to the big lie used by politicians to justify their creation of redevelopment projects (that redevelopment results in more property tax being "retained" by the city) not one extra penny is received by the city as a whole.

All that happens is a huge amount of essential revenue is diverted from the city's General Fund into a special fund called a Redevelopment Fund. The County Tax Assessor sends exactly the same proportion of the tax money collected in each city to that city as a whole, with or without a Redevelopment Agency.

So why do they do it? Answer: borrowing power. It increases the city fathers' ability to borrow for their favorite projects, you know, the ones that memorialize their names on plaques on some boondoggle or other.

When specific revenue is earmarked exclusively to pay back a specific bond issue it becomes much more valuable as security than in a general revenue bond issue. It becomes a Tax Allocation Bond (TAB). The lender has first call on that specific tax revenue for its interest and capital payments. It's a great deal for the lender and to sweeten it even further Uncle Sam treats the income as tax free to the lender.

The best source of information on redevelopment finance is the Council of Development Finance Agencies. Here is what it has to say about Tax Increment Financing (TIF) and Tax Allocation Bonds (TAB). Also read a general Wiki on TIF.

The problem with TIF or TABs is that they not only pledge the full faith and credit of the city's tax payers to secure private developer financing, in doing so they deprive the city taxpayers of the use of that revenue through the General Fund.

By law, redevelopment funds cannot be used for city services. That is why it is called "tax increment diversion" and in the case of Poway it is almost 100%. The City's General Fund is gutted, hollowed out.

Here is the City of Poway's 1% Tax Revenue Pie Chart:

What they don't show you is how much of that 16% is diverted. Here are the numbers, taken from their City Budget:

The Total Revenue into their General Fund from all sources is $35,423,210 while the Total Revenue into the Redevelopment Fund is $38,774,690.

The General Fund must finance all of the Safety Services, Planning Services, Community Services, General Engineering and the City Administration, while the Redevelopment Fund may finance any boondoggle the city fathers' hearts desire.

They are currently planning a $500 million Towne Center, a sort of Baghdad "Green Zone" where they can stroll around and fantasize that the rest of the city looks exactly like it - so typical of the Third World mentality. Like all Third World fantasylands, it will be festooned with plaques of the City Councilors and developers. We may even see statues of these glorious city leaders.

Poway is now gated communities in the North and pot holes in the South. Drive around South Poway and notice how it is looking more and more like Third World East San Diego. All my Redevelopment/Third World predictions are taking place right there in the city of Poway. "Redevelopment" tends to create blight, not eliminate it.

T
he most insidious aspect of "redevelopment" is its abuse by private developers. The Redevelopment Agencies almost always team up with private developers. The tax payers raise the capital and the developers own the projects. We have to break this public financing of private development, conducted under the guise of "redevelopment".

Poway does not have term limits so its city fathers are very entrenched. The incumbents have the enormous patronage of the Redevelopment Agency at their disposal. Challengers have an almost impossible task.

The governing Boards of the Redevelopment Agencies usually consist of the members of City Council. Anybody running for City Council in a city with 94.59% "diversion" is really running for a seat on the Redevelopment Agency Board. When that happens, as in Poway, there is no city government, the developers have hollowed it out.

That is what I am afraid will happen in San Diego. We are already at 71.36% diversion.

I have spoken to one of the three challengers out there, Connie Messina, who understands very well what is going on. But she is up against a massive deficit of democracy. The big money interests have everything wrapped up on their side.

Poway is becoming a classic North vs. South, Gated Communities vs. Third World old side of town. Ms. Messina has the beleaguered South on her side, whose residents are getting madder and madder by the day at the lack of basic city services like road maintenance. But the North has the money and the yuppie NIMBYs.

I am reminded of the situation in which my Irish ancestors found themselves in the big Eastern cities of Boston, New York and Philadelphia in the late 1800s and early 1900s. But they fought back. They told the yankee bankers and industrialists: you may have the money but we have the votes. That is still the answer today.

The Irish went on to take over city governments all up and down the East Coast and indeed on the West Coast too, most notably San Francisco. North Poway may have the money but South Poway has the votes.

It would be nice to see this destructive force of "redevelopment" start to reverse itself right where it has reached its most virulent expression - in the city of Poway.

There are immediate remedies at hand. A Redevelopment Agency can voluntarily transfer any and all of its diverted funds back into the General Fund, where the money can be used for general services such as road maintenance, parks, swimming pools, libraries etc. It is entirely up to the City Council/Redevelopment Board.

California Redevelopment Law states:

"
33401.  The agency may in any year during which it owns property in a redevelopment project that is tax exempt pay directly to any city, county, city and county, district, including, but not limited to, a school district, or other public corporation for whose benefit a tax would have been levied upon the property had it not been exempt, an amount of money in lieu of taxes that may not exceed the amount of money the public entity would have received if the property had not
been tax exempt.
"

No doubt the Poway City fathers will say it can't be reversed. Yes it can! But that would be the end of their $500 million Town Center boondoggle extravaganza. San Diego spent $300 million on their Ballpark and nearly went bankrupt as a result. How can tiny Poway afford to go one better and survive? And who is the Poway "Moores"?

My fingers are crossed for citizen-politician Connie Messina. I hope she becomes a symbol of that reversal, whereby Southern California "
shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth." All it takes is to get out the vote Connie. Good luck.
 

 
 

There will be a Navy Broadway CEQA hearing. 10/20/06

 
 

by Pat Flannery

The phones were busy at City Hall today culminating in Council President Scott Peters sending this Memo to Mayor Jerry Sanders and City Attorney Mike Aguirre late in the afternoon. It is short but significant. It represents the current state of play in the struggle for power between Sanders and what's left of democracy in San Diego.

It gives some hope to those of us who are awed at the scope of Sanders' power grab.

No doubt Peters was subjected to the usual Jerry Butkiewicz intimidation to "save" his union jobs at Navy Broadway by upholding yesterday's outrageous "ministerial" CEQA finding. But it was more than Peters could deliver. He probably assured Butkiewicz that it is OK to let it go to an appeal before the Council as it will be denied just like every other land use appeal that comes before it.

But this appeal will be like no other. The long-suffering public will go down there and give them hell. Everybody who has ever suffered at the hands of these arrogant DSD traitors, and there are many, will fill the Chamber with their rightful wrath. This DSD is a corrupt servant of the developer community and sees the people as its enemy.

Not quite expecting this welcome development today, I had done a little research of my own. I had come to the conclusion that Mike Aguirre would have little choice but to fill out a Form 1472 in the event that somebody filed a request for a CEQA appeal with the City Clerk, despite the fact that Sanders and Waring are putting it out that there can be no appeal to their "ministerial" action.

The two most likely entities to file such a complaint are the Broadway Complex Coalition (BCC) and the Save Our Forest and Ranchlands (SOFAR). Each wrote letters to CCDC making excellent points that would be repeated on an appeal. Read those letters at the above links to their names.

Aguirre will now request a full City Council appeal and go up against his buddy Sanders. Aguirre may have little stomach for such a fight with Sanders but the people in the communities now demand it. They are tired of DSD staff dictatorship. Navy Broadway is a must-win for the people. If it were lost because of lack of support from Aguirre .......

Here are the relevant Rules in the Municipal Code:

"7.2. Initiation of Resolutions and Ordinances by the City Attorney or the Mayor (Former Rule 27)
7.2.1. Requests for Council action may be initiated by the City Attorney or Mayor, or any other independent department head for any matter that is germane to his or her official duties as prescribed by law. Resolutions or ordinances drafted in accordance with such requests shall be assigned by the President to the Adoption Agenda or referred to committee in the same way as all other resolutions or ordinances.
7.2.2. Any resolution or ordinance on which action of the Council is mandatory under any federal, state or local law shall be placed on the Adoption Agenda by the City Clerk without further action of the President. Such matters include but are not limited to the following:

(a) Request for a change in zoning;
(b) Request for approval of a final map;
(c) An appeal from any administrative or quasi–judicial decision as permitted under the City Charter, state law, or ordinance of the City; and
(d) Any noticed hearing such as is involved in 1911 or 1913 Act proceedings."


If Peters had resisted, a complaint would have been filed with the courts. Allowing a CEQA appeal is mandatory from any administrative or quasi–judicial decision. But now that Peters will docket an appeal, the following Rule kicks in:

"7.4. Delivery of Resolution or Ordinance to Council President
(Former Rule 29)
7.4.1. The official who originated the Form 1472 shall cause the resolution or ordinance, with attached digest, and any other supporting materials, prepared in accordance with this Rule, to be delivered to the President or his/her designee no later than 10:00 a.m. on Wednesday for listing on the agenda of a regular Council meeting to be held, at the discretion of the President, the second or third week after receipt of the 1472."


That means that Aguirre's Form 1472 has to be delivered to Peters no later than 10:00 A.M. on Wednesday October 25, 2006 for a hearing date of November 6 or 7, 2006 at the earliest, i.e. the second week after his receipt of the 1472.

But Peters will only docket a hearing after a decision by the CCDC, who meet at 1:00 P.M. on Wednesday October 25, 2006. This means that the earliest the City Council can hear this appeal is Monday or Tuesday November 13 or 14, 2006!

Doug Manchester may be getting a giant turkey for his Thanksgiving dinner this year, and a giant lesson in democracy to go along with it. It ain't over yet.
 

 
 

Treachery has always demanded the harshest penalties. 10/19/06

 
 

by Pat Flannery

As you read this piece of supreme treachery remember that we are paying this man's salary, that he works for us. We are paying this Mr. Manis, this Assistant Deputy Director of our City's Development Services Department, to tell us that after 16 years nothing has changed in and around Navy Broadway. We are paying him to tell us that an Environmental Impact Report written in 1990 is as good as if it were written today.

This man knows that this letter is a travesty of his fiduciary duty to the citizens of San Diego. The law says that the people of this city have a right to honest government, from each and every civil servant they hire. This man has today deliberately penned a profoundly dishonest letter and expects to get away with it. He is knowingly and deliberately denying our right to honest government. This cannot and will not stand.

The person whose duty it is to hold Mr. Manis accountable to the people of this city is its elected City Attorney. Mr. Aguirre has a sworn responsibility to ensure that the people of this city get honest government. It is his duty to tell Mr. Manis that the findings in this letter constitute a grave and deliberate act of maladministration for which there is a severe penalty. Civilized society cannot function if its civil servants betray their trust with impunity. Therefore this letter strikes at the very heart of our civilization.

If Mr. Manis does not immediately correct his deliberate error, it is Mr. Aguirre's responsibility to pursue every means possible to hold him accountable for his betrayal of the people's trust. We are a government of laws not of men. Mr. Manis has placed himself above the law. He has issued a fiat. Sanders staff calls it a "ministerial" act. Sanders is guilty of attempting arbitrary government. America fought a revolution to rid this continent of such arbitrary "ministerial" government by a King.

This culture of supreme arrogance, particularly at DSD, is a cancer that is destroying this city. It has taken on a frightening virulence since Sanders took office. The misgovernment of recent years will pale in comparison to the rapaciousness that is rushing in upon us from the naked greed that bought Sanders his Office.

This DSD letter today has literally declared war on the people. We must act or lose our city. Sanders' greed machine is out of control. Manchester's money has reached into the very heart of our city government and brought forth this treacherous letter.

Treachery has always demanded the harshest penalties. It is easy to see why.
 

 
 

Carl DeMaio is the real face of Prop C. 10/18/06

 
 

by Pat Flannery

Who is Carl DeMaio? People have been asking that since this brash 32 year old came to San Diego from Washington DC three years ago. He is President of The Performance Institute based in Arlington VA with an office in San Diego.

The most significant thing about this Washington insider who is pushing San Diego's Prop C (upon which I debated him on the Roger Hedgecock Show last Friday) is his membership of the Federal Government's
Acquisition Advisory Panel in DC. Through this secretive Panel he knows how the "schedules" system of government contracting works - from the inside. That's why the San Diego business community, led by Mayor Sanders, likes him so much and wants him to teach them.

"The panel is dominated by contractor advocates – both inside and outside government – who have embraced Representative Tom Davis’ (R-VA) agenda of gutting taxpayer protections,” said Danielle Brian, Executive Director of the Project On Government Oversight (POGO) when the Panel was established on February 9, 2005.

In confirming that DeMaio was indeed on the Panel, POGO explained that he:
"Runs a company that presents training seminars about the advantages of outsourcing government jobs."

Is this how Prop C will work in San Diego?


Will it be modeled on the GSA Schedule system? Danielle Brian of POGO, speaking to the San Diego Union-Tribune on May 18, 2005, likened the "schedules" system to a hunting lodge: "Once a company is invited in, 'you don't have to worry about ... proving that you're worthy because you've already got the secret handshake''"

If so Carl DeMaio is exactly the right man to run Jerry Sanders Outsourcing Lodge.
             SEAN M. HAFFEY / Union-Tribune

To get on the approved contractor list you will need to take one of Carl DeMaio's "seminars". But don't worry they are not expensive, they start as low as $1,100.

Don't you just love privatization? Vote for Prop C, get on the Sanders/DeMaio list of Approved Outsource Contractors and you will never need to work again. Never mind the fact that in the process you will turn San Diego into a Third World city, but that's OK because you will be rich enough to live in a gated community in North County.

DeMaio was a
research fellow for the Reason Foundation,
an ultra-conservative organization that pours out anti-government propaganda like Mount St. Helens in eruption. Its mission is to promote privatization and it's patron saint is Margaret Thatcher. It sponsored the formation of his Performance Institute in 2000.

As a college freshman DeMaio also worked with Newt Gingrich at the Congressional Institute where he picked up many of Gingrich's brash character traits.


San Diego
now seems to have its own version of Gingrich, complete with the bible according to the Reason Foundation. DeMaio has the zeal of his alma mater's Georgetown University patron saint, Jesuit founder Ignatius of Loyola. DeMaio's cause however, is not the glorification of God but to become rich and famous himself.

He uses a very controversial method known as BPR, Business Process Re-engineering. BPR is now the buzz word at the Mayor's Office. It has been described as the "big bang" approach to reform. It is all done in a rush with little understanding of what is happening and even less care about the outcome. Any attempt at moderation is considered old fashioned and timid. Nothing is to stand in the way of the god "profit".

Local Government in San Diego is under sever attack from the god of profit. Whether it survives or becomes hollowed out will depend on the Prop C vote.

A "Yes" vote will strip our city of basic services. The rich will then create their own gated communities with their own revenue bonds paying for their own security and infrastructure maintenance. They rest of us will find ourselves in an ever expanding version of present-day East San Diego, which is already a Third World.
 

 
 

The Developer/Union pact in action. 10/16/06

 
 

by Pat Flannery

Today Councilmembers Faulconer, Atkins, Maddafer, Hueso and Peters voted to reject an appeal by the residents of Scripps Ranch against a mixed use commercial and condo development that would adversely impact traffic on Scripps Ranch Blvd.

Despite the verbal protestations and a "NO" vote from Scripps Ranch's own City Councilor, Republican Brian Maienschein, and the protestations of all three Community Planner Groups in the Scripps Ranch area, the above five Councilmembers, three of them Democrats, gave Jim Waring and his developer client what they wanted.

The three Democrats, Atkins, Hueso and Peters cast their votes in order to give
Jerry Butkiewicz  head of the San Diego-Imperial Counties Labor Council, the construction jobs that are now part of the developer/union business plan. All three Councilmembers owe their seats to Butkiewicz. The developer agrees to use exclusively union labor, the price of getting the project through City Council.

Jim Waring, in advocating for the project today, sounded more like a paid land use attorney than a City employee. Another example of "government for profit" at work.

But by far the biggest lesson is that it was the union vote that betrayed the people of Scripps Ranch today. Even with the support of their own Republican Councilmember they lost out to the "
Jerry & Jerry and Business Plan".
 

 
 

The hidden hand of "Pappa" Doug again. 10/16/06

 
 

by Pat Flannery

Uh-oh, has Scott Lewis lost the plot? Has he been seduced by Manchester?

Read my blog dated September 23, 2006 for a different point of view and a foreshadowing of this opinion piece today, which I expected to come from the U-T, not from the Voice of San Diego.

Lewis says: "Doug Manchester is not the bad guy in this deal. If you're angry or concerned about the plans for Navy Broadway, he's not the one to blame".

Where Scott has gone seriously wrong is with this: "The city and the Centre City Development Corp. could refuse to sign off on Manchester and the Navy's plans. But they'd have to come up with some kind of reason about why Manchester's plans don't conform to the development agreement the city and the Navy signed in the early 90s and repeatedly reaffirmed since then." No they wouldn't.

As I pointed out in my September 23, 2006 blog: the 1992 Development Agreement with the Navy on page 12, Section 4.8 says "Third Parties. The contractual relationship between the City and the Navy arising out of the Agreement does not create any third party beneficiary rights".

In other words, what happens to Navy Broadway is between the City, the Navy and the Federal Government, nobody else. Scott Lewis is giving Manchester rights he does not have. "Pappa" Doug has no rights whatsoever arising out of the 1992 Agreement.

Here is what I wrote on
September 23, 2006: "If I hear anything about a Manchester threat to sue the City, "arising out of this Agreement", not only will I know that "Pappa" Doug is trying it on, but I will also know that anybody who might try to articulate such a spurious threat, is working for him. Such actions could have consequences, if that person works for the City."

Scott Lewis ends his piece today: "Because, probably the only thing we can really guarantee now is that if we don't go through with Manchester's plan, he's going to sue. And he, unfortunately, is pretty good at that."

That sounds like articulating Manchester's threat to me.
 

 
 

How to achieve balance in the development process. 10/15/06

 
 

by Pat Flannery

The present "policies and regulations that impact development" allow the CPGs (Community Planning Groups) no means of influencing the design of the process. The TAC, which I described yesterday, has that exclusive right.

This is its Mission Statement:

To proactively advise the Mayor and the Land Use and Housing Committee on improvements to the regulatory process through the review of policies and regulations that impact development. And to advise on improvements to the development review process through communications, technology and best business practices to reduce processing times and improve customer service. And to advocate for quality development to meet the needs of all citizens of San Diego.”

The TAC is all about the process and making it developer-friendly. That needs to change. The communities are "stakeholders" too. The TAC would be more properly called the "Developer Advisory Committee" because it has no representation from the Communities. It consists entirely of developer "stakeholder" interests.

Here are two suggestions:

(1) Send the DSD back under the General Fund, where it will be run as a government department, not as a fee-based service to developers.
(2) The Community Planning Groups should create an Advisory Committee equivalent to the existing TAC, in order to achieve societal balance.
 

 
 

A taste of "government for profit". 10/14/06

 
 

by Pat Flannery

Jarvis Ross and I went along to a meeting of the DSD's Technical Advisory Committee on Wednesday, October 11, 2006 at DSD headquarters, 1220 First Street, downtown. How many of you knew such a thing existed? Not many I think.

Jarvis and I were both curious to see who was advising whom and about what. They in turn were just as curious about us at it was the first time any members of the public had ever attended one of these get-togethers.

The chairperson, architect Kirk O'Brien, was very courteous and asked if we wished to speak. I offered a few observations and questions at the end of the meeting.

I asked if an Enterprise Fund is the best way to deliver development services? In reply, the new Department head, Marcella Escobar-Eck, referred to various law suits that the City had lost and assured me that an Enterprise Fund is the best way to defend the City against such law suits and that keeping development fees out of the General Fund facilitated the tailoring of fees to the size of the project.

I asked whether developer fees could not be similarly tailored within the General Fund. I didn't receive an answer on that. I will look into the law suits she referred to and see if that argument has any merit.

I told them that the advisory meeting seemed more like a business meeting than a government meeting and that perhaps it was because the DSD is an Enterprise Fund. I noted that much of their earlier conversation was about the Department's slumping revenue and about their concern that they were not getting enough big projects. There had been laughter earlier when they were discussing the amount of work they have to do on multiple small projects compared to their workload on large projects.

I asked if this did not suggest a departmental bias towards larger projects. Ms. Escobar-Eck shook her head.
 
I finished by asking if any community groups were represented on this Advisory Committee. I was told that the TAC is the "equivalent" of the CPC (Community Planners Committee). I wondered what they meant by that so I sought out Ms. Escobar-Eck after the meeting and asked her to explain it.

I expressed concern that Community Planning Groups were conspicuously absent from this high-powered meeting, that CPGs were not getting equal access to the top DSD management, as this meeting was solely between key DSD staff and the various developer and business interests.

She assured me that the Communities have equal access. I asked her to explain. She said she attends CPC meetings up in Kearney Mesa. I asked if it was her official duty to do so. She said no, she does it voluntarily. How that constitutes equal access, I assured her, I failed to understand. Neither the CPGs nor CPC has any direct involvement with DSD, they advise the Planning Department, not DSD. The assertion that TAC is equivalent in any way to CPC is just plain wrong. It has an entirely different function.

My overall impression was that the DSD is indeed run as an "Enterprise". They consider the big developers their prized customers and treat them as such. The developers and their service providers are invited to formally "advise" the staff and top management of DSD but there is no input from the neighborhoods where that development will take place. They are stakeholders too, in fact the major stakeholder. Right now the ordinary people have no effective voice in land use.

It seems to me that these 40 odd Community Planning Groups need to start demanding parity of esteem at the DSD. Maybe if that were the case there would be less wrangling in front of City Council and both developers and public would be better served. Right now the developers control DSD because it relies on revenues from their big projects. Obviously the DSD staff do not wish to go back under the General Fund where they would be subject to layoffs and budget constraints like everybody else.

The DSD should be a normal government department, not a for-profit enterprise.

Ms. Escobar-Eck would be an excellent CEO for John Moores or Doug Manchester, but she has no business being in government (pardon the pun). We need to get the DSD back where it belongs, inside the General Fund, where it would be headed by a civil servant, not a savvy business woman handpicked by her developer clients.

Mayor Sanders will make "government for profit" the norm, if Prop C passes.
 

 
 

Prop B is a win-win for Sanders - 10/13/06

 
 

by Pat Flannery

Is Proposition B the best way to fix the pension problem, or an opportunistic ploy by the current executive branch to weaken the legislative branch of our City government?

I have pondered this question long and hard and come down on the "Vote No" side. The more I thought about it the more I became convinced that preserving the integrity and preeminence of the People's House, the Council Chamber, far outweighs all other considerations. We must distinguish between individuals and the institution.

It is in that hallowed hall our democracy takes place every week. I am in awe every time I walk into that room. I love the rough and tumble of what goes on there. In that room everybody is equal. Even the Mayor has to come to the podium and make his case, just like the rest of us. People can watch it live on TV, or study it again and again, using streaming software on their home computers, and make their own decisions on every issue. Democracy is government by discussion.

I am so proud to be part of that discussion, simply by virtue of being a citizen of this great city. I believe every major public decision should be made there, including setting employee pension benefits. That is an integral part of managing a large labor force and can only be done by our City Council who must take the whole city picture into account.

Nobody in this city, least of all me, wants to see a repeat of what happened on November 18, 2002, when the City Council approved fake pension benefits they knew to be illegal. Union leaders did their membership little service by "negotiating" such a flawed deal. These benefits were illegal and therefore subject to rollbacks. The courts do not make law, they enforce it. Judge Barton has no choice but to enforce the law.

If by any chance the courts fail to enforce the law, then we have a problem. Then and only then could an argument be made for Prop B. Much of the argument so far is based on the false premise that the system has failed. It has not failed. The rollbacks are before the courts and 8 City officials are facing criminal charges. That's not failure.

To pass Proposition B is to degrade the laws we already have. What these elected officials did was already illegal. They knew it. We must punish the individuals who did it, not the institution.

Passing Prop B is saying that it is OK to disregard State Law, the City Charter and City Ordinances, that we will fix it by adding another law, and another, and another. This mentality prevails in our schools and elsewhere. We will do almost anything rather than hold people accountable for their individual actions. When an individual makes a mistake, rather than correct the individual, we call it a systemic failure. That's what is going on here. The best remediation is to enforce the law.

One of the classic "victims" of rollbacks would be Jerry Sanders. After 25 of his 26 years of service, his retirement was based on 2.5% benefit for every year of service. Sanders was entitled to 25 X 2.5% = 62.5% of his base pay at retirement.

But in his 26th year, 2002, the City Council, illegally, boosted the 2.5% "multiplier" to 3%. Fair enough you might say, but, they made it retroactive! That's what was illegal. $561,700,000 illegal. That's how much the total city benefit enhancements came to, according to the Pension Reform Committee Final Report dated September 15, 2004.

Sanders will now receive 26 X 3% = 78% of his base pay at retirement.

Does this explain his introduction of Prop B? I think so. In fact I think Prop B was designed to help all those who are fighting the rollbacks. It is why the city employee unions are only putting up token opposition. Prop B will be presented to the courts as a fix. The judge will be told that the people have spoken. It will get him off the hook.
 
Every "settlement" of the pension issue weakens the case for rollbacks. Read Diann Shipione's excellent explanation of the damage done by the Gleason Settlement. Prop B is intended to be the last nail in the coffin of illegal pension benefit rollbacks.

I think this is a win-win for Sanders. He gets to keep his inflated pension benefits and he gets to weaken the City Council as an institution.
 

 
 

The "Jerry & Jerry Business Plan". 10/12/06

 
 

by Pat Flannery

Prop C exposes the flawed underpinnings of current San Diego politics: there is an unnatural alliance between big business and the unions. Jerry Butkiewicz  head of the San Diego-Imperial Counties Labor Council, makes closed shop deals with big employers rather than recruit union members the old fashioned way.

His deals with big business do his recruiting for him. That may be “good business” but it is a betrayal of labor. He is more suited to being head of the Chamber of Commerce than being head of the Labor Council.

The reason we have not heard much from city employee union members on Prop C is that Butkiewicz has persuaded them they will do better under outsourced contracts than under civil service contracts. The MEA leaders were never part of his Labor Council and will now pay dearly for not kissing his ring. Many MEA members will migrate to outside unions under Butkiewicz’s control. A big win for Jerry.

Thus this so-called “managed competition” begins life as “managed corruption”.

The “pay-to-play” rule will apply equally to employees as to employers. To get an outsourced job you will have to pay Butkiewicz his membership dues, to get a City contract you will have to be blessed by the Chamber of Commerce and be on Jerry Sanders’ contribution list. There is no provision in Prop C prohibiting campaign contributors from bidding on public contracts. Guess what will happen.

The trouble is Butkiewicz’s method works. He made similar deals with developers like John Moores. He enabled Moores to get his ballpark through City Hall. Butkiewicz owns five seats on the Council. The Labor Council endorsement is critical for Democrats. Sanders, like Murphy, can count. John Kern “advised” Murphy how to get the job done. Moores got his ballpark and Butkiewicz got his membership dues.

Prop C proponents say the city labor unions (those not affiliated to Butkiewicz’s Labor Council) created the financial crisis. That fits nicely with the “Jerry & Jerry Business Plan”. It provides the perfect cover for a far greater financial crisis in the making.

As part of his “reform" package Sanders wants to float Pension Obligation Bonds (generating tens of millions in financial services fees for his friends in the process). Shifting the pension loan (that’s what the pension deficit actually is) from the City to Wall Street does not cure it, merely renames it. Why not call it what it is now and save tens of millions in financial service fees? But we all know the answer to that.

The $1.4 billion "deficit" could be wiped out with the stroke of a pen by entering it in the pension books as a loan from the City. The City is paying 8% on that loan to prove it. Where could the pension fund manager get a better investment deal than that? If he were offered the cash proceeds of a $1 billion Wall Street bond right now he could not match the 8% investment deal he has with the taxpayers of this City.

Much of what is going on is pure politics disguised as "reform". Control of City finances is a huge business opportunity for Sanders' backers. They avoid words like “cost effective” and use “efficient”.
To them efficient means producing the maximum amount of profit. Isn’t that what business does? That's what these folks are. They are not in government, they are in business.

They carefully avoid the use of the word “out”. It is “contract for” not "contract out”.

They call Prop C a “no brainer”. Meaning: the electorate has no brain. If it passes Prop C will perform a lobotomy on the Civil Service sure enough. Civil Service will be replaced with Chamber of Commerce service. Nikki Clay will effectively be in charge of City Services. City Hall will be gutted. If you want anything done you will have to go to the Chamber of Commerce, who will effectively be handing out the City contracts.

As least as far as San Diego will be concerned the Civil Service form of government that has served America well, will be no more. If Halliburton can take over the Defense Department, Sanders backers can take over City Hall. If Prop C passes San Diego will become Halliburton-by-the-sea. That's the "Jerry & Jerry Business Plan".
 

 
 

If the politicians won't take responsibility, the staff must take the fall. 10/11/06

 
 

by Pat Flannery

Watch the City Council hear the Peninsula Community Planning Board's Appeal of Upper Voltaire Mixed Use Project, Item 336 on Tuesday, October 10, 2006. It has significance well beyond the Point Loma area because it illustrates the appalling attitude of DSD personnel to anybody other than developers.

When the Item was called by Council President Peters, Project Manager Cory Wilkinson was not there! Somebody announced that he would be 10 minutes late. He kept the City Council waiting ten minutes. When he finally did appear he went right to it without a word of apology and even more amazingly, Mr. Peters did not ask for one.

Throughout the appeal hearing he kept referring to the developer by first name. He stumbled through several different versions of how many parking spaces were being provided. Donna Frye picked up on this and asked for clarification. She received little more than sullen silence from Wilkinson. He seemed totally bereft of information other than what benefited the developer.

Then he failed to explain to Ms. Frye why he was removing a traffic light on Voltaire Street. She was the only one who asked any questions. Faulconer and Peters congratulated the developer and the staff on what a wonderful job they had done.

I went over to the development site today to figure out what Wilkinson and the developer were up to with the traffic lights. The answer was immediately obvious.

Currently there is a concrete median on Voltaire Street in front of the development site. The street is too narrow to allow a u-turn at the traffic lights at either end. So they simply removed the nearest traffic light and the whole median, to accommodate access to the project. A center turn lane was added, which will replace the median.

The traffic light removal remedy was announced at the last moment in order to prevent the Community Planning group commenting on it or realizing what was afoot. The first they heard of it was yesterday. But it had to have been planned by Wilkinson and the developer well in advance. That stretch of road is now a deathtrap.

The representatives of the Community Planning Committee solemnly warned the City Council that when (not if) there will be a tragic accident as a result of their approving this project, these public proceedings will be part of the record. They were warned.

I would go further and warn Mr. Wilkinson that he is personally responsible. He made a choice. Yesterday he gave the advise Jerry Sanders and Kevin Faulconer wanted. But there is a personal price to be paid for blindly following political orders. He should talk to these eight, who, if they had it to do over again, would do it differently.

According to Kroll, politicians do no wrong, staff lie to them. When a few more photographs are added to the above eight, some DSD staffers may start to get the message. Maybe then we will start to get our city back from the developers.
 

 
 

Prop C would create Halliburton-by-the-sea. - 10/10/06

 
 

by Pat Flannery

Don't be fooled by this. Carl DeMaio is financed by big service employers like Doug Manchester who want to weaken the unions and create juicy government outsource contracts for themselves.

DeMaio says:
Hold City Departments Accountable for Efficiencies. By allowing for a competitive environment, taxpayers can have more assurance that their money is being spend efficiently and effectively. Proposition C would also require routine performance audits to hold the City accountable for cost and performance targets.

Guess who will do the "routine performance audits" for his new best friend Jerry Sanders, you guessed it,
DeMaio's Performance Institute of course.

As for
their "competitive environment" providing accountability and efficiencies, quite the reverse. Sanders' business friends will be given commercial monopolies. Once the outsource contracts are signed these Sanders-franchised civil servants can charge whatever they please. San Diego will become Halliburton-by-the-sea.

To Sanders and his business friends, government is a business opportunity. Prop C would be a disaster for the taxpayers of this city. We can control our civil servants, if we have a mind to, but we will have no control whatsoever over the cost of our city services if they are outsourced to the greed machine Mr. DeMaio represents.

We need to hear more from our public employee unions on this. We may have had our differences with them over their pensions but they are our Civil Servants and we want them under our control not answerable to the gang of thieves and carpetbaggers recently swept into City Hall on Sanders' (Tom Shepard-created) "popular" coattails.

DeMaio says he helped author Proposition C, not a very proud boast. Its faulty drafting caused hours of wrangling at the City Council meeting today. It required the passing of a "resolution of intent" to correct it and will require another ballot measure in 2008 to correct it with regard to the intent of not outsourcing public safety services.

This is not a very inspiring "performance" from the head of the "Performance Institute". Nor is it a very good advertisement for the privatization of our civil service.
 

 
 

How to break the developers' grip on DSD - 10/09/06

 
 

by Pat Flannery

There is a way to break the developers' grip on the Development Services Department (DSD) - hold its employees accountable under their employment contracts and as Civil Servants. They have legal responsibilities to the people they serve.
 
The fact that San Diego’s development services are financed by an Enterprise Fund, rather than by the City’s General Fund, does not change that employment contract. The method of financing DSD is purely administrative; it has no legal effect on their employment. There is no conflict of interest – all DSD employees serve us. Period.
 
But read their Staff Reports. The developers’ attorneys write them for them. That is dereliction of duty by City employees. That is actionable, on an individual basis.
 
Who should sue them? The City Attorney should sue them. The City Charter says he is the people's attorney, responsible to the people, paid for by the people. We are his client. Clients get to tell their attorney whom to sue.

I would suggest Mr. Aguirre start with his own staff attorney David Miller, who is a blatant advocate for the developer every time. Miller would not get away with that in private practice, why should he get away with it in public practice? Some member of the public should file an ethics complaint with the State Bar.

That
is how we break the developers’ grip on DSD.

Here is the
Staff Report on the Peninsula Community Planning Board's Appeal of Upper Voltaire Mixed Use Project, due to be heard as Item 336 by the City Council on Tuesday, October 10, 2006 (go to bottom of agenda page, last Item). It is typical of the "Staff Reports" that are signed by staffers like Gary Halbert and Jim Waring but written by the developer's lawyers (they will deny it of course).

The Development Process calls for a Project Manager, in the Voltaire case Cory Wilkinson (619) 557-7900. That person is prohibited from being an "advocate" for the project, yet that is exactly what these Project Managers have become, in breach of their personal employment contracts with the City and the people.

Mr. Wilkinson's "recommendations" to the City Council on Tuesday is extreme advocacy for the Voltaire project. He has allowed the developer's lawyers to do his job for him. That is actionable by the City Attorney on behalf of the people. It is dereliction of his duty to the people.

Here is the Staff Report on the Appeal of the Environmental Determination for the Pacific Coast Office Building, heard by the City Council on September 26, 2006, as Item 336 (go to the bottom, last Item on the agenda). The Environmental Determination was deferred because it requires the positive action of 5 City Council votes.

A Great job by Donna Frye against developer attorney Mike McDade who was sickeningly supported by our civil servants. Worth watching. David Millar's behavior was particularly reprehensible. We get to pay his legal salary while he advocates for developers. Karen Heumann on the other hand is an outstanding City Attorney.

The Project Manager's "recommendations", Anne B. Jarque (619) 687-5961, shows extreme advocacy for this Mission Valley project. She allowed the developer's lawyers to do her job for her. That is actionable by the City Attorney on behalf of the people.

Here is the Project Manager's, 
Patrick Hooper (619) 557-7992, "recommendations" to approve the "Site Development Permit/Tentative Map/Easement Abandonment to develop a 0.81 acre site with a 12-story commercial mixed-use development consisting of a 10,304 square-feet of commercial space, 96 residential condominium units and a total of 322 off-street parking spaces located at 301 through 333 University Avenue."

His written "recommendations" shows extreme advocacy of the Project.

I could go on and on. The pattern is clear. The Development Services Department has been taken over by the developers. But we are paying these civil servants' salaries and have employment contracts with them. We need to enforce them.

Turn up at City Council on Tuesday, October 10, 2006 to support the
Peninsula Community Planning Board's Appeal of the latest inappropriate use of developable land. Local people know what's best for their neighborhoods but are being ploughed under every day by the developers, while the people we pay as a check on them go to lunch. The result is a steady deterioration of our neighborhoods, in this case traffic.

Call and ask
Cory Wilkinson at (619) 557-7900, whether he has read his employment contract recently. Put him on notice that we are holding him personally responsible for every word of his "recommendations". And we will.

We do not want to see another performance like that of Anne Jarque's September 26, 2006 arroganct advocacy of Dr. Pollacks encroachment above the 150-foot environmentally sacred Mission Valley contour line - and get away with it!

We need to hold these people INDIVIDUALLY and personally responsible. That is how we get good government. That is how we REMEDIATE the errors of the past.
 

 
 

10/07/06 - The City Council must reject this tainted SEC decree
or face corruption charges

 
 

by Pat Flannery

Here is Aguirre's report to the Mayor and City Council dated September 1, 2006. Scroll down to page 5, Section V, regarding a "Monitor".

"Monitors may be appointed to oversee the implementation of court-ordered remediation plans and given jurisdiction over certain affairs of a City in appropriately filed legal proceedings. Likewise, they may be included in certain administrative proceedings, “consent decrees” and the like. The City is in discussions with the Securities and Exchange Commission regarding securities related issues.

It is not inconceivable that a “Monitor” will be a required element of the resolution of our efforts with that agency. In such case, the term of service, and the role, of the person serving as the City’s Monitor will be tailored to the specifications of services deemed to be required by the SEC and that person will have authority under well established legal authority.

Adopting the “Monitor” suggested in the Kroll Report is inconsistent with the grant of jurisdiction required by the City Charter. It also adds nothing to the resolution of the monitoring functions which may be required by the SEC, and may in fact conflict with that process
."

Obviously Aguirre knew on September 1, 2006 that the SEC was calling for a 120 day monitor and was OK with it. Bob Kittle of the U-T also knew but was loudly condemning the SEC staff for not requiring a 3 year monitor for Sanders.

Kittle wanted to facilitate a Sanders' power grab by putting a monitor over the City Council for 3 years. Can you imagine the arrogance of a newspaper opinion editor wanting to neutralize the elected legislative body of the city his newspaper serves? Yet that is exactly what Kittle has been doing.

What continues to puzzle me is why Aguirre did not release the SEC decree back then. I can think of no good reason why he did not do so.

The decree was against the City as an entity therefore the public had a right to know. Release was actually a legal imperative. Political reasons are not legal reasons. The best defense against political tampering was to release it. Political tampering is exactly what has now happened and that tampering process was corrupt.

According to today's U-T report: "The council has held at least 16 closed-door meetings on the SEC probe, which began in February 2004." I would like to see a list of those meetings as I have not been able to find anything like that number on the public record. Those meetings, however many, were all about covering the rears of individual Council Members, not about what was best for the City. If there is a conflict of interest now, there was a conflict of interest at each of those 16 meetings.

Aguirre said that the SEC staff at Los Angeles had assured him that they would never allow their findings to be tampered with by Arthur Levitt.
Did Aguirre and the LA staff not know about Levitt's involvement with the infamous Carlyle Group? That he is their senior advisor on "strategic business matters"? Here is a Wiki on Carlyle. This is what SourceWatch had to say about them. This article in particular is a must read. Once Levitt became involved in this case, tampering and corruption were inevitable.

Levitt owned the influential Capitol Hill newspaper Roll Call until, using political the  contacts he made on the Hill, he got himself appointed Chairman of the SEC in 1993. Bob Kittle worked as a journalist on Capitol Hill from 1977 until coming to the SD Union in 1986. How could he not have known of such an influential fellow journalist?

If Levitt can change the SEC decree with respect to the length of the monitor (from 120 days to 3 years), which he has now done, he can easily get individual Council Members off with a slap on the wrist. That is why they voted him $20 million.

"Carol Lam is seeking to make her mark in corruption cases" according to this U-T report shortly after she won convictions against Councilmembers Inzunza and Zucchet in July 2005 for multiple counts of extortion, wire fraud conspiracy and wire fraud. The $20 million to Kroll was a bribe.

While they were holding those 16 Closed Sessions about the SEC "settlement", they were voting extra millions to Levitt. Can there be any doubt about what was really going on? By changing its decree under political pressure from an ex-chairman, the SEC has allowed itself to become corrupt.

Carol Lam may seize this opportunity to make a name for herself. Rudy
Giuliani once said, "I don't think there's anybody much worse than a public official who sells his office, except maybe for a murderer." He became famous as the U.S. Attorney in New York when he fearlessly convicted two corrupt congressmen, Mario Biaggi and Bert Podell, and a local politician called Stanley Friedman. His prosecution of Mafia boss, Joe Bonanno, had less impact on his meteoric career rise. People hate corruption.

The City Council must reject this tainted SEC decree or face corruption charges.

They do have a way out, if they take it. They can simply refuse to sign this tainted version of the SEC decree and offer to sign the one that existed at
the time of Aguirre's report to the Mayor and City Council on September 1, 2006.

Some may take a leaf out of Dick Murphy's book and simply resign. It would certainly solve their conflict of interest issue. The "law of necessity" does not address
which way they vote. It will not save them from corruption charges.

The people who voted for them are the only friends they've got. The voters can either be their best friend or their worst enemy. They would help them through an SEC securities fraud charge, but would reward Carol Lam for sending them to jail with the same intensity as New Yorkers rewarded Rudy
Giuliani, if they close this corrupt deal with Levitt. A 3 year monitor would be an insult to the people of San Diego.
 

 
 

Strongman Sanders is trying to become a right wing dictator - 10/06/06

 
 

by Pat Flannery

It gives me little pleasure to say it: I was right. Read this in the U-T today: "One difference between the current agreement and earlier versions, the source said, is that it now calls for an outside monitor to observe city operations for three years rather than 120 days." That's what the SEC "negotiations" were all about. Sanders got the SEC to change the decree to include his 3 year monitor.

This would be a devastating blow to citizen government in San Diego if our City Council approved this amended version of the SEC settlement. Sanders and his strong mayor backers have used the SEC to weaken the legislative wing of our government so they can get their land steals through unopposed.

But as with Manchester's Navy Broadway Monstrosity, we will fight it. Nobody, but nobody, can curb the people's sovereignty. The City Council only has the power we give them. That does not include appointing a monitor over them.

Appointing a monitor, or anybody, else over and above our elected representatives, is appointing a monitor over us. That we will not accept.

Let's start with a legal opinion from our City Attorney that a 3 year monitor is an infringing on the people's sovereignty.

This strongman Sanders is trying to become a right wing dictator.
 

 
 

Aguirre provides for the "rule of necessity" - 10/05/06

 
 

by Pat Flannery

This Memorandum of Law published today by Mike Aguirre's office, entitled: "Approval of SEC Order; Conflicts of Interest; Rule of Necessity" explains a lot. Dealing with the SEC Cease-and-Desist Order raised the specter of conflict of interest with some City Council Members. So Mike had to carefully establish a method of invoking the law of “legally required participation”, i.e. the "rule of necessity".

"To summarize, the Council is required to seat a quorum of its members to handle this matter, and, if too many Councilmembers are disqualified, it can invoke the “legally required participation” law to seat them." Five City Council Members will have to recuse themselves as they have a financial interest in approving the SEC decree, no matter what its terms are, therefore the rule of necessity will be invoked for at least two of the five, randomly selected.

Nice piece of legal work with regard to the conflict of interest issue, but it still does not explain why this whole thing could not have all been dealt with a long time ago and out in the open.

I still worry that they were wheeling and dealing with Sanders over the SEC decree. I still worry that somehow in the end he will get his monitor. I worry that the City Council, as an institution, is so weakened that it is no longer able to resist him. If he has leverage over them, you can be sure he will use it. Bad as it is, we must have a legislative arm independent of this strong executive.
 

 
 

Does DSD have a conflict of interest? 10/05/06

 
 

by Pat Flannery

Some readers have emailed me expressing concern that because the DSD (Development Services Department) is financed on a fee-for-service basis (as an Enterprise Fund rather than from the General Fund), there might be a conflict of interest.

Read the submissions from various organizations when developer review user fees were revised in 2003, particularly the submission from the CPC (Community Planners Committee) starting on page 7. With the exceptions of a few caveats (e.g. regarding affordable housing), they were generally supportive.

Also look at the DSD fund history up to that time (an update would be in order). Charging user fees is a good system provided it is not abused or discriminatory. But if they can do it they will.

Maybe, just maybe, Waring or Escobar-Eck could invent a special "fast track" for those who could afford a "special fee" - you guessed it, Doug Manchester, around December 29, 2006, to beat his January 1, 2007 deadline with the Navy. As I said, if they can do it they will. As it is right now, the developers can get anything they are willing to pay for. That is why it is called an "Enterprise Fund".
 

 
 

This is our Charter Document to defeat developer takeovers - 10/04/06

 
 

by Pat Flannery

"The City retained CEQA responsibilities under the Development Agreement". This according to a CEQA applicability opinion issued by Aguirre's office today.

As lead agency the City is still responsible for evaluating the current adequacy of the 1990 EIR, which will have to be done before CCDC can complete its consistency determination and even then is appealable to the City Council by any member of the public. So CCDC's big meeting on September 13, 2006 is moot. They are a mere "subcontractor" of the City. I love it.

This document, written apparently by Shirley Edwards, Chief of the Land Use & Environmental Section in Mike Aguirre's office, is our charter document to defeat Manchester's Monstrosity. This document, placed alongside the first opinion, which I still believe was written by Nancy Graham, makes it clear how near we came to a coup and how arrogant and out of control CCDC had become.

Shirley Edwards was part of the important team strengthening Aguirre announced on August 6, 2006:
"Edwards has over 15 years of comprehensive environmental, litigation and advisory experience, including direct involvement in CEQA, NEPA, Clean Air Act, Endangered Species Act and other related environmental matters. Prior to joining the City Attorney's office, Edwards was the Directing Attorney for the Stockton office of the California Rural Legal Assistance, Inc. (CRLA) and also worked for over a decade as an environmental and prosecuting attorney for and on behalf of enforcement agencies at the federal and state level. She is a San Diego native and a graduate of the University of San Diego where she obtained her B.A., M.B.A., J.D., and L.L.M."

The document this San Diego girl and USD graduate has written is a must read for anybody who cares about what happens to that precious 14.7 acres called Navy Broadway. It provides us with all the legal ammunition we will need to stop this outrageous land giveaway that almost took place right in front of our eyes.

Doug Manchester is one of the most greedy and politically influential developers in San Diego's history (it is ironic that he is a big patron of Edwards' alma mater, USD). If not stopped at Broadway he was headed towards owning the entire San Diego bay front. He would have populated it with institution-style boxes designed to maximize rentable floor space. Almost anything would have been better than that.

Nancy Graham was groomed by the Republican establishment in Florida. She was sent hear to make San Diego the poster child for developer takeovers all across the country, under the guise of urban renewal. She almost got away with it. Thanks Shirley, your experience with SEQA saved the day. And thanks Mike for hiring her. You sure cleaned up Casey Gwinn's rubber stamp factory.
 

 
 

All we needed was somebody to uphold the law - 10/04/06

 
 

by Pat Flannery

See, the people do have power. It's called the law. All we need is somebody to enforce it. The CCDC had to cancel their vote again today on the Navy Broadway project, because they simply do not have the powers they claim. According to the City Attorney's Office, the City Council does have a role.

The second legal opinion by the City Attorney's Office on the Navy Project got it right. The first one, in my opinion, was written by Nancy Graham, herself a land use attorney. Read footnote 2 at the bottom of page 2. It was added after she wrote it.

It says: "This footnote is being added as a result of the City Council informational meeting held on September 19, 2006. The sections cited in this paragraph were meant to be a general description of the subject matter contained therein, and were not meant to be dispositive of all issues set forth in each section. Accordingly, a further memorandum will be issued relative to the City’s role under CEQA."

The CCDC is fully aware of Aguirre's pending SEQA opinion, as can be seen in this staff report for the September 27th meeting, page 7. Why they held a meeting today is anybody's guess. They knew they could not decide anything until Aguirre rules on whether CEQA will require a new EIR or not. They were just putting on a show.

You have to wonder why Aguirre chose Friday September 13, 2006 to issue his "further memorandum" regarding SEQA compliance. Later that day CCDC will reconvene to make a "decision" that is looking more and more irrelevant by the day.

It is this "further memorandum" that is giving Nancy Graham and her boss Doug Manchester conniptions. She and "Pappa" Doug know that a CEQA required EIR would be the kiss of death for their (almost) stealth of San Diego's finest 14.7 acres. There is no way the SEQA process could be completed by January 1, 2007.

I think I'm starting to like this guy Huston Carlyle after all. And kudos to Carol Leone his (not just a pretty face) assistant. What a change from the bad old days of "rubber stamp" Casey Gwinn. We actually have a City Attorney's Office that upholds the law.

Mike Aguirre, the Boston Red Sox of San Diego politics, in that he lost many political battles in his long odyssey to the City Attorney's Office (he lost the infamous Charger's ticket guarantee battle), may be about to win the World Series by handing a major San Diego developer, "Pappa" Doug Manchester, the first major defeat of any developer in San Diego's history. Like the Yankees, they had it their way for too long.

I shudder to think what would be happening right now if Mike had not got those last precious votes that sent Leslie Devaney tending her backyard in Scripps Ranch and gave Mike the power to take on the predator developers that have preyed on this town for too long.

One final caution: Section 5.3 of the Development Agreement states that the “construction standards and specifications for buildings and structures developed on the Property only shall be those City construction standards and specifications in effect at the time that any building permits are issued.”

Marcela Escobar-Eck as Director of Development Services gets to "apply the City’s current construction standards and specifications for buildings and structures developed on the Property prior to the issuance of building and other related permits by the City". In other words, she will issue Manchester's permits. Is that a scary thought or what? Why do you think Sanders appointed her. It ain't over 'till it's over.
 

 
 

Who will take personal responsibility now? - 10/03/06

 
 

by Pat Flannery

Here is the draft "Fiscal Year 2003 Draft Comprehensive Annual Financial Report" (CAFR). It was released yesterday to the City Council and therefore to the public. The City staff who released it want to give the members of the City Council a whole two weeks to study it. This is being delicately described as "giving a greater role for the City Council in the review and approval process".

They are being asked to review, comment and then approve the entire 310 page CAFR  document at a Council meeting on October 16, 2006 because it will become part of all future bond offering information. This generation of staffers is not going to take the fall for politicians, ever again. Sanders appointed an ex-KPMG guy, John Dyer, to help "manage the implementation of the 121 point remediation" - essentially to make sure that Councilmembers cannot weasel out of their financial oversight responsibilities. Sorry Toni Atkins, you will have to BE a City Councilor.

This may have unintended consequences. Councilors will seek to minimize their citywide role and emphasize their responsibilities to their Districts. They will seek to distance themselves from Executive matters at City Hall in order to minimize their personal liability. To prevent them from doing that, some will now argue for citywide elections.

Me, I am a dedicated District man. I think all public representatives should have the closest possible relationship with the people who elect them, not those who lobby them. Citywide elections would only benefit the big money special interests. The developers would heavily finance those they have groomed and ready. Developer money would account for 90% of all campaign spending and we would end up with only ex-lobbyists, ex-PR people and land use attorneys on the City benches.

It may be a good time to try out my long-time suggestion: to disperse the whole 10th Floor to the Districts. I can think of a dozen reasons why. That 10th Floor is in continuous breach of the Brown Act. They are in there in one big incestuous hamster pile, swapping staff backwards and forwards. Many of the Councilors were longtime staffers themselves. They are all creatures of that floor, either as staffers or lobbyists. Then we are supposed to believe they never discuss the public's business until they come up to the City Chamber on the 12th Floor, as the Brown Act requires.

Wouldn't it be nice if your representative's office was in your local shopping center as an information center? You could wander in and out whenever you liked. Apart from the $800,000 per annum that would be spent in each District rather than downtown, the lobbyists would have to run all over town to round up the votes for their land deals. Only people who like being personally available to the people would run for office.

I could go on and on. I just don't know if its time has come yet. But this individual responsibility thing could get them thinking about it. Being asked to take personal  responsibility for everything Sanders does scared the heck out of them, and it should.

Dispersal would sure achieve separation of powers - physically. Sanders and his  Executive would be tied to their desks downtown while the Legislators would be loose among the people for whom they legislate. They would spend their days in the physical presence of real people, not be the captive listeners of paid attorneys and lobbyists, as they are right now. Disperse them, so we can monitor them.

If their defense (of the present cozy 10th Floor set up) is that they need to be able to talk among themselves (about the issues of the day), they will be admitting that they are in perpetual breach of the Brown Act. It may well be time to break up the party.
 

 
 

Don't believe everything you read in the papers - 10/03/06

 
 

by Pat Flannery

Despite its partisan spin it is still possible to glean information from the U-T. And it is not just the U-T, the entire City Hall itself is one big spin machine. So let's see what we can accurately deduce from yesterdays orgy of spin.

First of all we know that the tooth fairy came to Mike Aguirre in the middle of the night. After a hard bike ride, he woke up to go to the bathroom and there on his pillow beside him was the SEC decree.

So now that Mike has miraculously got the coveted SEC decree in his hand (at midnight, on a weekend), he calls his friend Jerry Sanders and tells him he can "keep his regular schedule in town" on Monday. I wonder what that schedule was? (Can you imagine being a reporter and having to write this stuff down with a straight face?)

When its time to meet the press, everybody runs for cover. Not me, says Peters, I'm just the Council President. Go talk to somebody in authority, like Tony Young maybe. Yeah, he's Deputy something. Council President "pro tem" I think, something like that, he's the man to speak to. So Tony bites his lip for gravitas, puts on his best "pro tem" voice and acts as spokesperson for the entire city menagerie.

Vigil and Hall report: "Although he had not seen the preliminary settlement, Young said Aguirre characterized it as “very favorable” to the city. Young, who joined the council a year after the investigations began, said the deal would resolve the commission's issues with the city as a whole, without assigning blame to individuals."

Sanders: well, the tooth fairy has asked for total confidentiality - in the best interest of the City of course.

The quote that worries me the most is this one from Aguirre: The public will be completely briefed at a time when it's in the city's best interests to do so.” Does Mike get to decide "when it's in the city's best interests"? Not according to the Brown Act.

Perhaps the most significant quote from all the hypocritical posturing yesterday was this in the same U-T report: "Aguirre said the SEC can also take formal legal action, but he said that step has not come up in talks with regulators." Then what is the basis for "Conference with Legal Counsel - anticipated litigation - significant exposure to litigation, pursuant to California Government Code section 54956.9(b)", the published reason for the Special Closed Session this Thursday?

They can't just invent some "anticipated litigation" when they want to go into secret session to discuss other business. That is a breach of the Brown Act. There has to be a reasonable basis for "anticipated litigation". If the possibility of legal action by the SEC has never come up in two years of discussions, where is the legal basis for this Closed Session? There is none.

Believe me, this is all about the monitor. Read my blog of Saturday September 9, 2006. Nothing has changed. Here is a small extract regarding the highly staged public session of City Council the Wednesday before, September 6, 2006, to approve, "in principle", Sanders' 121 point remediation plan:

"
If I had known for sure, not just guessed it, that the only one asking for a 3 year monitor was Mayor Sanders, if I had known that the entire City Council sitting there before me, including presumably the City Attorney, had already met and decided to appoint this monitor to cover their involvement in the upcoming massive borrowing spree, I would have had some tough questions. But of course that is why we were kept in the dark."

The wheeling and dealing with the SEC decree that is still going on is all about agreeing or not agreeing to Sanders' key strategy of appointing an outside monitor, under his control, who will pull down the shutters on all his secret deals with his developer backers and the bond issues that will finance them.

That's what will be discussed on Thursday under cover of
"anticipated litigation" with the SEC. If they end up accepting the 3 year monitor we will know they sold out the city for personal protection.

The only way to defeat Sanders' monitor and the land giveaways it will facilitate, is to smoke them all out into the open. I hope I will not be the only one down there at 8:00 A.M. on Thursday Morning to protest this abuse of the Brown Act.

The land giveaways that are being planned, will put NTC in the shade. Why do you think Sanders just hired the world's foremost expert on land giveaways,
Marcela Escobar-Eck as Director of Development Services? That should be like a red rag to a bull for anybody who cares about this city. Yet nobody seems to care. Why do you think he appointed Jim Waring head of Land Use and Economic Development? In the best interests of the city? Nobody cared. Because Sanders is a nice guy?

There will be no point crying about all this after it has happened. It is now too late to stop the NTC giveaway, but not Manchester's Monstrosity at Navy Broadway. And there will be others, lots of them.

The entire City Government is not only in regular breach of the Brown Act, by constantly discussing the public's business in private, it is in fundamental breach of California Redevelopment Law with regard to CCDC:

"33121.5.  When a decision, determination, or other action by the agency or legislative body is required by this part, neither the agency nor the legislative body shall delegate the obligation to decide, determine, or act to another entity unless a provision of this part specifically provides for that delegation."

The California Brown Act says:
"The people of this State do not yield their sovereignty to the agencies which serve them.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created."

Print it out and pin it to your pillow, so whenever you get up to go to the bathroom in the middle of the night you can read it and call Jerry Sanders to remind him.

 

 
 

The DC gig is off. Aguirre removes Sanders' "wraps". 10/02/06

 
 

by Pat Flannery

I think the other side just blinked. Kevin Faulconer didn't get to sip champagne with the Mayor all the way to Washington DC today after all. I have individual confirmation that neither Sanders, Aguirre, Faulconer nor Hartigan got on that plane. Instead there is going to be another City Council Closed Session this Thursday at 8:00 AM. Mike Aguirre may have just taken away the politicians toys and sent them to their room.

What does this mean? I hope it means that Mike Aguirre has asserted his rightful place as the man in charge of this SEC issue. I hope he has just stopped a slick PR guy, Kevin Faulconer, from making it a media event for his self-aggrandizement. That is Faulconer's profession. He was (is?) a VP with Porter Novelli. They have a great slogan: "Many Minds. Singular Results" - the perfect slogan for those of us who wish to counter his use of the City Council on behalf of his Porter Novelli clients.

I think we are near the end-game in the SEC fiasco. Mike has won. The politicians prolonged the agony of the Kroll investigation as long as they could. They prolonged and delayed the SEC investigation as long as they could. They tried to play games with the SEC over its findings. Now they must finally face the music.

I think Aguirre is about to lift Sanders' "wraps". We sure needed some fresh air around here and we may finally be about to get it. If Mike wouldn't play their games behind closed doors then there will be no game. Good. From now on the public's business will be done in public. We may be starting to get somewhere.
 

 
 

Sure Mike, Sanders is a nice guy. 10/02/06

 
 

by Pat Flannery

Kevin Faulconer! Now I know for sure that Aguirre has lost control of the SEC issue:

"Accompanying Sanders in Washington are John Hartigan, the lawyer hired by the city to represent it before the SEC, City Attorney Mike Aguirre and, most encouraging, Councilman Kevin Faulconer, a strong advocate for reform. After his discussions with the SEC's enforcement chief, Faulconer may be able to persuade his foot-dragging City Council colleagues that perpetuating the discredited status quo is no longer a viable option."

Forget my musings about what Aguirre and Sanders might talk about on the long trip to DC, Mike may be sitting in tourist class while important people like Kevin Faulconer sips champagne with Sanders and plans the future of San Diego.

How did Mike allow them to gain control of the SEC issue? The SEC is supposed to come in, do an investigation, write a finding, and leave. It did that. Months ago. Now it is being used to propel Sanders to Sacramento with Faulconer by his side. Did Mike not know that the Republican establishment would play politics with the SEC?

Mike will come to bitterly regret that he did not just release the draft SEC decree the moment he received it. This was a legal matter and the handling of it should never have left the City Attorney's Office. It should never have become politicized. The best way to have done that was to share it with the public. But Mike kept it "under wraps".

Now he is being made to look like a bit player in "reform". They have made concrete mixer PR wise guy Faulconer the reformer! They have stolen the reform agenda right out from under his nose. Sure Mike, Sanders is a nice guy. Maybe now you will realize that you can't play games with these people. The public is your only ally.
 

 
 

Developers intend to outsource most of our City Government - 10/01/06

 
 

by Pat Flannery

Sanders is the compliant tool of developers, bought and paid for, yet Mike Aguirre thinks he is a nice guy. What are we to do? Bite our tongues and just trust Mike? Wait for them to get this SEC thing behind them? Will Mike start opposing Sanders' developers then? Is Sanders practicing a little "managed competition" on Aguirre?

Finalizing the SEC action against the City is of huge importance and if managed correctly could change the dynamics of the present situation: it could introduce the concept of individual responsibility into local government, something desperately needed. The problem is that the SEC is the political wing of Wall Street. It acts entirely in the interests of the big financial services firms, which may not correspond with the best interests of the people of San Diego. We will wait and see what Mike brings back.

But while Mike and Jerry craft a deal with the SEC in DC, a developer power grab is going on here. It is a bad time for Mike to be out of town. Maybe Sanders planned it that way. The Navy Broadway deal will be bundled up and tied when he gets back.

Then there is Prop C. Sanders and his developer backers have craftily hidden their intention of outsourcing police and fire services by not naming police and fire as unclassified services and the City Attorney's Office approved it! Rural/Metro Corp., currently providing EMS to the City, stands ready to extend its role into fire. Not surprisingly it is a big supporter of Prop C. Something big is going on here.

CCDC is planning to build two new fire stations. What does that tell you? CCDC intends to be the leader in this power grab that will outsource much of the administration of the City of San Diego to its redevelopment projects, despite the fact that Redevelopment Law prohibits redevelopment projects from providing city services. However, they can administer them. That's what CCDC does, administer. There will be many more CCDCs if we do not stop them now. Navy Broadway is our last chance.

What they will do is set up public/private partnerships similar to San Diego Medical Services Enterprises, SDMSE, the City's current 911 paramedic ambulance provider, which was the first in the nation. The City of San Diego and corporations like Rural/Metro, the private partner in SDMSE, will then become commercial monopolies.

They will charge whatever they like for whatever services they provide. Remember how they used the enterprise fund for waste water to raise tax-equivalent revenue by the backdoor and to absorb other City costs such as Casey Gwinn's office. Susan Golding paid for her Republican Convention without one penny appearing on the City's books.

If the Sanders plan succeeds, this city will be run by developers, for profit, using tax increment dollars. Only a shell of its General Fund will remain. That is what Sanders is all about. Surely Mike can see this. Developers intend to take over municipal government all up and down the State and Sanders intends to be their champion. Aguirre is blinded by his distrust of the public employee unions.

What will Mike and Jerry talk about for the ten hours they will sit together going to and from their appointment with the SEC in Washington tomorrow? Will they talk about which ex-director of the SEC will make the best San Diego monitor?

Will they talk about what a great Director of Development Services Sanders' new appointee, Marcela Escobar-Eck, will make? About the great job she did when she was liaison on the Naval Training Center Reuse (Giveaway) Project and what a perfect teammate she will be for Jim Waring?

Mike could take the opportunity to explain to Jerry that the City Council, acting as the Redevelopment Agency, does not have the authority to delegate any decision-making powers to CCDC:
"33121.5.  When a decision, determination, or other action by the agency or legislative body is required by this part, neither the agency nor the legislative body shall delegate the obligation to decide, determine, or act to another entity unless a provision of this part specifically provides for that delegation."

He could point out to Jerry that the City's 1992 Development Agreement with the Navy is subject to the above California H & S Code. It would be a great opportunity for Mike to bring Jerry up to speed on redevelopment law in general. He and his developer friends seem to be a little behind in that department.

The City Attorney's Office is a very powerful Office which needs to be used for the benefit of the people, not for the narrow interests of developers. That has been the situation in the past. Developer attorneys wrote legal "opinions" and Casey Gwinn just signed them. Has Mike Aguirre sufficiently changed that? I'm not so sure.

As for what we can do, it is no coincidence that the first three links on the top right hand side of this blog are: the Brown Act, the City Charter and California Redevelopment Law. If they were properly applied much of the current abuse would cease. We are governed by laws, not by men. It is up to us to know our laws and see that they are applied. This city need not be the private fiefdom of those who can afford to fund political campaigns. The people have power if they choose to use it.

If the SEC fails to impose individual responsibility, as it may, we will have to quickly find other means of holding City Councilors accountable to us. Right now they are accountable only to the developer/unions pact that elected them. Let's hope that Mike and Jerry bring back an SEC decree that will quickly force the four compromised City Councilors to find alternative employment. Otherwise we go to war.
 

 

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