A new opinion by the city attorney says there are ways the city could get around the policy that makes that the case, but it could open itself up to a lawsuit if it isn’t careful.
Right now, the city requires 2 percent of the cost of city construction projects to pay for public art. So when pricey new water treatment plants are built, they include pricey new public art, too. But since water facilities are mostly closed to the general public, not many people end up getting to appreciate that art.
After Voice of San Diego wrote about the issue, Councilman David Alvarez asked City Attorney Mara Elliott to find out whether the city could move those artworks to more public places. Two water facility projects are currently in the city’s pipeline, accounting for about $1.3 million in funds available for new public art.
In a response, the city attorney said the public art component of those projects should be located at the water facilities most of the time. Putting the art in a more publicly accessible place, the opinion said, could risk violating Prop. 218, a state law saying the city can’t profit from selling water and ensuring all water-related taxes and most fees are subject to voter approval.
But the opinion includes a caveat. Public art could be moved offsite if there’s a legal connection between the artwork and providing water service – such as educating the public about water conservation. The exception, though, has its own exception: The city can’t just use water conservation as a pretext to install artworks that would just benefit the general public.
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This is thoroughly confusing to me, after having read through what I think are the relevant parts of Prop 218 and the City Policy 900-11.
I can maybe understand why those two may be fundamentally inconsistent with each other, and that the 2% should have been voter-approved rather than just adopted by the City Council.
I can't understand why making the art public (vs. hidden) would suddenly make it less "legal." The relevant parts of Prop 218 seem to have the intent of preventing public institutions from "hoarding" (profiting) or benefiting from non-voter-approved public money in ways not directly related to their public charter. It seems to me that having largely hidden works of art, only viewable by employees, is just that. It seems to violate both the policy and the law at the same time. The art isn't benefiting the public *and* it's tax-funded benefit just for employees.
However, I'm not a lawyer, and maybe I'm missing some other relevant part of 218 that Mara focused on. Whatever that might be, though, doesn't seem to have been well communicated. She seems to have picked a path that would upset the most people possible - the public, the City Council, and taxpayer advocates.
@GK I'm not a lawyer either, and have seldom regretted that oversight. This situation is a classic case of unnecessary government "regulation" run amok. It seems the law is designed to make it less easy for the public to enjoy the art is is mandated to pay for. Is this an "only in California" matter, or "only in San Diego" (or both).
Perhaps one or more to the lawyers, barracks, sea or regular, who regularly opine on matters civic could explain this situation to us, including how and why the requirement benefits the public.