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Memo from lawyers for the legislature pushes the city attorney to reverse himself in opinion that led to months of drama.
I have always said that I respect it when a politician changes his mind. It takes courage to admit you were wrong.
But rarely have I seen such a stunning reversal, especially on a major legal opinion, as the one performed Friday by City Attorney Jan Goldsmith. And I’ve never seen the city’s legal team issue an opinion that led to so much controversy only to pull it back like some kind of mulligan.
We talked Monday about a new memo that emerged from the state legislative counsel’s office. It came after a request from then-Assemblyman Ben Hueso.
The memo said that because Unified Port of San Diego manages issues that cross over city boundaries, state law prevails over city law. And the state Port Act says that the City Council gets to decide who’s on the port commission.
It was just one legal team’s opinion.
It was a persuasive one, though. In fact, it was so persuasive, the city attorney has completely changed his mind.
A few months ago, he opined that the mayor had the power to veto the council’s port picks. The mayor did just that after the council put forward two picks. The city attorney backed him up. There was moaning and a bit of chaos as the council tried, but failed, to override the veto.
And now, those two port picks are apparently on the fast track to being sworn in. Council President Todd Gloria and Councilman Kevin Faulconer demanded it happen immediately.
The city attorney doesn’t apologize for the hassle. Here’s what his memo says:
Although this office attempts to maintain consistency, we are open to reconsideration in light of new facts, contrary legal analyses and matters we should take into account. Here, the change from 5 to 6 votes needed to override a veto and the legislative counsel’s opinion prompt reconsideration.
His previous opinion on the matter, issued in January, stemmed from an even earlier opinion from 2006. The mayor got veto power that year when he became the chief executive of the city after the city converted from a city-manager form of government to a strong-mayor form of government. In a Feb. 28, 2006, memo, City Attorney Mike Aguirre said the mayor could veto port appointments made by the council.
He just never did.
Even the day the council made its two selections, the mayor did not realize he had the power to veto it, telling our Liam Dillon at a press conference that it was the City Council’s job alone. Later, when it reached his desk, he saw it needed his signature.
The council had appointed one Republican and one Democrat to the two open seats on the port commission. Filner clearly wanted two Democrats.
Bob Nelson, the city’s only representative on the port commission for the past several weeks, said it was unfortunate the city attorney spent so much time thinking about city law when it was a state agency involved.
“While there has been no damage done by the absence of two commissioners for the first time in 50 years, the confusion and drama created by the city attorney’s failure to understand state law has caused unnecessary strife and I’m glad it’s now come to an end,” he said.
The city attorney’s spokesman, Jonathan Heller, wrote to me that Goldsmith simply changed his mind.
“To blindly follow a previous legal avenue simply because he doesn’t want to admit that other worthy ideas or opinions have come to light would be a disservice to the city,” he wrote.
This is true. But it’s unclear what came to light. The legislative counsel’s memo merely referenced the Port Act, which the city attorney previously recognized “clearly” gave the power to the council and the council alone.
He just said then that this needed to be “harmonized” with the mayor’s power to veto.
We noted how shocking that take was for the city, and why this all matters, in this San Diego Explained.
Worth noting, the city attorney signed this latest opinion. The one from January that it was replacing was signed by his deputy, Sharon Spivak.
I’m Scott Lewis, the CEO of Voice of San Diego. Please contact me if you’d like at firstname.lastname@example.org or 619.325.0527 and follow me on Twitter (it’s a blast!):
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