March 25 2015 12:05 PM

Nonprofit could be operating without proper city oversight

Jan Goldsmith
Photo by Kelly Davis

Amid calls to investigate the legality of the city-controlled nonprofit Civic San Diego, a memo has surfaced, raising questions about how officials delegate power to the land-use agency.

The memo, issued almost a year ago by San Diego City Attorney Jan Goldsmith’s office, recently grabbed the attention of local watchdog group Californians Aware, which advocates for government transparency.

“The implications are that the city may not be able to legally do what it is proposing to do, and it may have another legal mess on its hands,” said Donna Frye, CalAware’s president and a former City Council member.

More than a year ago, Civic San Diego announced plans to expand its authority to permit and plan development Downtown into City Heights and Encanto. However, doing so requires negotiations with the Municipal Employees Association—the union that represents the city’s white-collar employees who currently handle permitting and planning duties. Those talks abruptly stalled early last year.

Released in April 2014, the memo states that in most cases, outsourcing essential government functions—such as those Civic San Diego wants to take on—may require a competitive bidding process.

The City Attorney’s office downplayed the memo’s significance and said it was working on another report that would directly answer outstanding questions about the agency.

“The April 2014 memo is intended to provide a general overview of legal factors to be evaluated in any proposed future expansion of Civic San Diego’s services, not to address any specific proposal for expansion of Civic San Diego’s services,” said spokesperson Gerry Braun in an email.

However, the memo has raised significant concerns about Civic San Diego’s legality as a whole, said public-interest attorney Cory Briggs. “The real question is whether all functions farmed out to Civic San Diego are lawfully farmed out.

“This memo makes it look as though the City Attorney’s office has every reason to believe that Civic San Diego is operating illegally,” he added. “So why on earth is that office not doing anything to stop it?” 

Mayor Kevin Faulconer’s office declined to comment. City Council President Sherri Lightner, who initially requested the memo on a related issue, also declined to comment.

The memo also touched on concerns that Civic San Diego could be operating without proper city oversight. Because the City Council doesn’t approve the nonprofit’s permitting and planning decisions, critics have argued the situation may violate state law.

“California also has a well-established doctrine prohibiting delegation of legislative power,” the memo states. “As a general rule, the city cannot delegate discretionary, legislative powers, including land use authority, to another entity in such a way that results in a total abdication of those powers.”

When Assemblymember Lorena Gonzalez announced legislation earlier this month to increase oversight of Civic San Diego, she, too, called into question the fundamental legality of the nonprofit.

“What we’re actually doing is trying to save the city from itself,” Gonzalez said.

Write to or follow him on twitter at @jemersmith.