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On June 15, the city attorney gave privileged and confidential advice about the SoccerCity ballot measure to the City Council and mayor. City Councilman Chris Cate then secretly sent that memo, which was stamped “Confidential” and “Privileged” in big letters at the top, to one of his max campaign donors, Craig Benedetto, who was working for SoccerCity. On June 25, SoccerCity’s lawyer revealed he had that confidential memo when he used it to attack a competing proposal.
That mistake by SoccerCity’s lawyer is the only way we found out about any of this.
For 100 days, Cate refused to admit he was the one who had done it. Finally, on Oct. 3, only when a lawsuit was about to drag his wrongdoing into the light, he admitted it was him. At his press conference that day, he offered no real defense. He admitted that he knew the memo was confidential and privileged when he snuck it over to his buddy at SoccerCity. He hadn’t told the city attorney or mayor about it until that morning, his Council colleagues were similarly in the dark.
About a week later, Cate’s spokesperson finally attempted a defense: Secretly sending the memo to his special interest donor was “a necessary function of his or her official duties.”
That word “necessary” is important. The most obvious law Cate broke was San Diego Municipal Code section 27.3564(e), which says: “It is unlawful for any current or former City Official to use or disclose to any person any confidential information he or she acquired in the course of his or her official duties, except when such disclosure is a necessary function of his or her official duties.” Violating this rule is a misdemeanor punishable by fine or imprisonment.
Cate already admitted that he “disclos[ed] … confidential information acquired in the course of his duties.” So the last possible defense is “necessary.”
Necessary has about the same meaning in the law that it has for everything else: It means “you absolutely have to.”
So, here’s the question: Could a Council member in that situation perform his or her duties without secretly sending confidential city information to a single interest group, but nobody else?
Fortunately, we don’t have to speculate – eight Council members in the exact same situation did their jobs without doing what Cate did. With that, Cate’s defense utterly collapses. It wasn’t necessary.
Cate also said he did it because he needed more information to make a decision for the July 19 vote on SoccerCity. But if Cate really deemed it “necessary” for Council members to have whatever information he got from SoccerCity, he would have given them the information, too. He didn’t. Indeed, even today, months later, Cate finds it unnecessary for any other Council member (or you or I) to know what “more information” he received from his caper.
Also notable: Cate didn’t find it “necessary” to hear anybody else’s thoughts on the memo – just this one special interest group. Cate didn’t give the confidential memo to the public – hearing our thoughts wasn’t “necessary.” Cate didn’t give the memo to SoccerCity opponents, either. If it were truly “necessary” to get a full response to the confidential memo, there is no reason whatsoever to secretly send it only to SoccerCity.
Cate claimed he hadn’t decided on the SoccerCity proposal. But even today, his photo graces the GoalSD.com website with his glowingly supportive quote, alongside other project boosters. There was never any question where Cate actually stood on the June 19 vote. For him to claim that he needed more information to decide that vote is simply laughable.
The “necessary” defense doesn’t stand up to even the slightest scrutiny.
But Cate’s defense isn’t really “it was necessary.” Cate’s defense is: I did it because I felt like it, and I’m going to get away with it.
This was an abject and brazen betrayal of the public trust. He certainly should resign. But he won’t. He should lose his election over this — but his seat is pretty safe, and he raised a ton of re-election money before anybody else found out about this. The decision about whether to charge Cate with a crime resides with a district attorney who is facing her first election next year, and may be reluctant to confront a very powerful Republican Council member and probable mayoral candidate.
Maybe Cate’s calculation is right. Maybe he will get away with it. But it won’t be innocence that protects him. It will simply be power.
Will Moore is a lawyer who represents small and midsized businesses in San Diego.