San Diego, our neighbor to the south, has had its share of political intrigue over the years.  The most recent iteration is an incestuous mix of Republican, Democrat, union, and big business involving the $520 million expansion of the San Diego Convention Center.  In the 1950s, California adopted open government laws to protect the integrity of the political system and guarantee transparency in the political process.  These protections have been eroded over the last few years as open government laws have failed to keep up with technology like emails and texts.  The cloak of secrecy thrown by San Diego public officials regarding the Convention Center expansion project is the most recent example of an attempt to return California government business to the days of backroom deals negotiated far from the public’s view.

Our story begins in June 2012, when the San Diego voters passed Proposition A, a ballot initiative known as the “Fair and Open Competition in Construction Ordinance.”  Prop. A amended the City Municipal Code to prohibit the City from requiring a contractor to enter into a Project Labor Agreement (“PLA”) on City construction projects, except where required by state or federal law, or as a condition of the receipt of state or federal funds.  A PLA is a collective bargaining or similar labor agreement, entered into with one or more labor organizations that establishes the terms and conditions of employment on a City construction project.  A PLA can often result in higher labor costs for the City when a project could otherwise be negotiated with private, non-unions contractors.

The Convention Center expansion project proposes adding approximately 200,000 – 225,000 square feet of exhibit space, 100,000 square feet of meeting space, and an 80,000 square foot ballroom.  In addition, the proposal would add a new hotel, as well as a waterfront park, open space, retail space, and a pedestrian promenade.  During 2012, the City sought proposals for a company to act as project manager for the expansion of the Convention Center.  In October 2012, the City selected Clark/Hunt as the project manager.

Throughout 2012, various labor unions and environmental groups filed a series of lawsuits challenging aspects of the Convention Center expansion project.  On November 8, 2012, the City entered into a settlement agreement with the unions and environmental groups that resolved all of the outstanding lawsuits.  In exchange for the groups’ support of the expansion project, the City agreed to pay $30,000 in legal fees purportedly incurred by the labor plaintiffs in the different lawsuits.  At the same time the City was entering the settlement agreement, Clark/Hunt announced that it had signed a PLA with local unions in connection with the expansion project.  Also on November 8, 2012, former Republican Mayor Jerry Sanders held a press conference to announce the settlement with several union representatives, including Lorena Gonzalez, then head of the San Diego and Imperial Counties Central Labor Council.  Gonzalez is now representing the 80th District in the California Assembly.  Gonzalez has previously expressed her opposition to Prop. A.

Public records on file with the San Diego Superior Court show that, beginning in January 2013, a local watchdog group submitted a request to the City under the Public Records Act, the state’s open government law, seeking copies of the PLA as well as other documents related to the expansion project.  The City stonewalled the group, and in April 2013, the group filed a lawsuit in San Diego Superior Court.  After the lawsuit was filed, the City produced some documents they claimed were responsive to the group’s request.  On June 3, 2013, Thomas Zeleny, San Diego’s Chief Deputy City Attorney, sent a letter to the group’s attorney enclosing two emails that Zeleny claimed had recently been brought to his attention as responsive documents.  One of those emails, dated September 21, 2012 (included with attachment below), was from Julie Dubick, then Chief of Staff for Mayor Sanders.  The email, which appears to be from her San Diego public email address, was sent to Gonzalez at her union email address.  The email included an attachment of apparent talking points for the settlement that had been reached between the City and union groups.  Included among the points are: (1) the Mayor would schedule a meeting with Marriott (the potential hotel on the expansion project) and support labor’s position; (2) the Mayor would attempt to effect an agreement between the general contractor and labor to effect an agreement “similar to the PetCo Park agreement” (PetCo Park was built with a PLA with unions); (3) the Mayor would appoint a labor-friendly member on the Convention Center Board (which he subsequently did); (4) the unions would dismiss their lawsuits and not further challenge the expansion project; (5) the unions would write a letter to the Coastal Commission supporting the expansion project; and (6) the unions would attend the October 1, 2012 City Council meeting and support the expansion project.

The most interesting part about Dubick’s email is that it simply says, “Here is suggested language.  Please confirm receipt to jpdubick@gmail.com.  See you at 2pm today.”  The gmail account Dubick instructed Gonzalez to send a response to was not her official public email address.  That raises an interesting question as to why Dubick would instruct Gonzalez to contact her through her private email account, rather than her public email address.  Unfortunately, we do not know if or how Gonzalez responded because the City has not produced any further documents from either Dubick’s public or private email accounts.  When asked by the group’s counsel if there was a widespread practice for City employees and elected officials to conduct official City business through private email accounts, Zeleny responded, “for all I know, all of the City business was run through Julie Dubick’s private email account . . . [pause] just joking.”

The irony is that the two September 21, 2012 emails were only discovered by the City Attorney because they were later attached to another email sent through the official City email network.  Had the emails not been forwarded as attachments through the official network, they would never have become public even though they clearly reflected the City’s public business.  The brevity and tone of the email also suggest prior discussions between Dubick and Gonzalez about the attached talking points.

As a result of the City Attorney’s discovery of the two emails, the City Attorney is investigating whether the PLA for the expansion project violates Prop. A, saying that the emails “raise questions that need further examination.”  The group has discovered several other private email accounts that it believes have been used to conduct extensive City business, but the City has not produced any other responsive emails from private accounts to date.  The group also has turned over all of the issues discussed in the lawsuit to law enforcement officials.

The City also produced the Mayor’s calendar as part of the group’s Public Records Act request.  The calendar indicates that the Mayor had several meetings and phone calls relating to the expansion project in September and October 2012.  One meeting was scheduled for 2:00 p.m. on September 21, 2012, the same day Dubick sent the email to Gonzalez.  Dubick’s email stated that she would see Gonzalez at 2 p.m.  I reached out to Assemblywoman Gonzalez for comment on whether she responded to the email (and if she would provide me a copy of any response), to what account she responded, and whether she attended that meeting or any other meeting regarding the expansion project.  Gonzalez’s Chief of Staff, Evan McLaughlin, responded that Gonzalez does not recall responding to the September 21, 2012 e-mail, and finds the storyline of the group’s lawsuit hard to believe.  He stated, “[a]s head of the Labor Council, Ms. Gonzalez always attended meetings to advocate for better wages for local workers, but she did not negotiate contracts – that’s the job of individual unions, not the Labor Council.  This sounds like another act of desperation by the same handful of anti-worker companies who are doing everything they can to drive down wages for local workers.”  McLaughlin did not confirm whether Gonzalez did respond to the email or whether she attended the September 21, 2012 meeting with the Mayor and Dubick.

Other documents produced by the City prove that, rather than ask that Clark/Hunt provide the City with public documents held by Clark/Hunt for the benefit of the City (as required by the Public Records Act), the City instead sent copies of responsive documents to Clark/Hunt for “review and approval” prior to releasing them to the group.  This practice is specifically prohibited by the Public Records Act which prohibits the City from allowing a third-party to control the disclosure of information otherwise subject to disclosure under the Act.

In sum, it does not look good for the City regarding meeting its obligations under the Public Records Act.  More troubling is the appearance of a widespread conspiracy by public officials, unions, and the general contractor for the circumventing of Prop. A by agreeing to a PLA in exchange for the unions dropping their legal challenges against the expansion project.  This conspiracy may have been aided by undisclosed communications between the Mayor’s staff and union representatives, including Assemblywoman Gonzalez.

Given the recent flap over the state Democrats’ attempt to gut the Public Records Act (Gonzalez initially voted for the gutting of the Act), as well as prior revelations that the former head of the federal EPA created a fake person and used “his” private email account to contact environmental groups and others to avoid requests for public documents similar to the request made by the group here, the City’s less than candid response to the group’s Public Records Act request should give pause to all San Diego residents.  In addition, a local public official’s use of private email accounts raises troubling questions of accountability and transparency.  The City Attorney himself has admitted to using a private email address to conduct City business.  He claims to review those emails and send the ones that relate to City business to his public account and respond through that account.  Can we be sure that other local and state officials are as thorough and conscientious as the City Attorney?

Many questions with respect to the documents requested by the group will be answered at the July 12, 2013 hearing on the lawsuit it filed.  Other questions will undoubtedly linger for some time after.