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In Sharing City Attorney Memo, Cate Was Doing His Job

Councilman Chris Cate’s disclosure of a memo written by the city attorney was neither illegal nor improper. It is not a crime to do your job, to request and gather additional information in order to make an informed decision.

Councilman Chris Cate was a policy adviser to then-Councilman Kevin Faulconer when I met him. He was the wonkiest guy in the room then and few at City Hall can match his grasp of public policy today. I recently heard him preface his questions at a City Council hearing by saying, “I’m going to get in the weeds here.”

Voice of San Diego CommentaryCate is a client of mine, but I would say this about him regardless: He gets in the weeds because he cares. He believes in what the city is doing. He has a freakish affinity for protecting taxpayers, so you won’t be surprised to learn he reads everything. He studies all sides of an issue before making a decision. He did so as an executive with the San Diego County Taxpayers Association. He did so as a Council representative, and he does so as a City Council member. He has earned the respect of people on both sides of the political aisle because he’s smart and because he’s one of the nicest guys in any room.

So people were surprised when this affable wonk stepped forward to say he was the one who shared a memorandum from the city attorney that was marked confidential.

Did this revelation make him a leaker, or was he making a disclosure as “a necessary function of his or her official duties” as allowed by the City Code?

Cate disclosed the memo because he had the right to do so.

His instincts, borne out of years of analysis on behalf of taxpayers, led him to seek more input before reaching a decision, to ensure all issues were on the table and to make sure he heard from all sides before weighing in on this important public policy debate.

This all began when the city attorney issued a non-confidential memo on May 23 addressing certain flaws in a citizens initiative that aims to turn the Chargers’ former home into a redevelopment project called SoccerCity. Three weeks later, on June 15, the city attorney issued a follow-up memo, labeling it confidential. The second memo was given to Cate just four days before he had to vote on the controversial measure. A continuation of her initial memo, the city attorney’s second memo was issued following an extensive legal review of her initial memo from attorneys representing SoccerCity.

That legal review says the city attorney’s initial memo “contained a number of statements about the initiative that we believe are incomplete or inaccurate. Many of these claims appear to be reflective of claims raised in a May 17 letter from (SoccerCity opponents).” The review goes on to challenge 18 points the city attorney made in her initial memo.

Armed with this information and new points the city attorney was raising in her follow-up memo, Cate wanted clarification and more information before casting his vote. So he asked a representative of SoccerCity – the very people who could provide an additional legal perspective – to review the second memo and share their analysis with him.

Cate is not an attorney and he did not see anything in the follow-up memo that looked to him like strategic or tactical legal information. Attorneys, reporters and others have said there isn’t anything in either memo that jeopardizes the city’s legal position. The memos, which were never discussed in closed session, describe some “what if” consequences if voters were to approve the SoccerCity measure.

Fast-forward to the events of the past week:

Cate stood before reporters and answered all of their questions at a press conference.

He said he sought the information he did so he could make an informed decision and share his reasoning with the people he reports to, who will vote on the SoccerCity initiative next year.

He said he feels bad about what happened and understands why the city attorney reacted the way she did when she learned someone had shared her follow-up memo.

He said that moving forward he would, at a minimum, inform the city attorney of his decision to seek additional information.

He reiterated that he has not yet decided if the SoccerCity proposal is the best path forward for San Diego.

As if on cue, Cate’s political opponents responded with flared nostrils. The folks yelling the loudest are the usual advocates of transparency and open government. In any other context, the councilman’s critics would be applauding the disclosure of information vital to an election decision. But theirs is a politically motivated response driven in part, it seems, by the city attorney.

The city attorney has made it her mission to convict Cate in the media. She also is now on record as saying she longer trusts her client. This raises a whole host of potential problems for the city and city attorney’s office, including a potential conflict of interest the city attorney may now have in advising anyone on SoccerCity.

There is a related wrinkle that’s just as troubling as the political punches. For some reason, the city attorney’s office felt it was their right to announce that the district attorney’s office is investigating this matter. The city attorney’s spokesman, who is neither an attorney nor an investigator, released this confidential information in a written statement to the media following Cate’s press conference. Who shared this confidential information with the city attorney’s spokesman and why did he feel it was his secret to share? There is a reason agencies do not disclose the existence of investigations.

In fact, the very spokesman who shared this confidential information is quoted in a June 30 column saying, “As you know, we do not discuss investigations by other agencies, real, potential or hypothetical.” I suppose that rule does not apply when politics are in play.

Cate’s disclosure was neither illegal nor improper. It is not a crime to do your job, to request and gather additional information in order to make an informed decision. The voters are likely to support anyone who listens to all sides and gives them all the facts.

Tony Manolatos is a partner in an advertising and PR firm. Cate is one of the firm’s clients. Manolatos’ commentary has been edited for style and clarity. See anything in there we should fact check? Tell us what to check out here.

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