Too many in the city's political establishment – rather than own up to the gross negligence and mismanagement that led to the systematic underfunding of San Diego's pension system – are determined to punish those who object to the culture of secrecy that led to the pension scandal and now keeps its sordid details hidden from the public. That's the obvious conclusion to be drawn from a drama secretly playing out behind the scenes involving a city Ethics Commission investigation – spurred by a complaint from then-Assistant City Attorney Les Girard – into the alleged leak to this editorial page of details of a Sept. 20, 2004, closed-door City Council session.
The session dealt with the still-pending Securities and Exchange Commission's investigation into the pension underfunding. Details of the closed council meeting were kept from the public.
But an editorial two days later revealed that council members were told in the meeting that "federal investigators have concluded San Diego officials violated 'very significant' securities laws by failing to disclose to investors highly damaging facts" about the underfunding. (The investors were prospective buyers of municipal bonds, who were kept in the dark about the city's deteriorating fiscal picture.)
Our concern, as expressed in the editorial: "By going into closed session, barring access to the press and public, (then-Mayor Dick) Murphy and the City Council served no purpose other than to suppress temporarily more bad news about the financial crisis that has engulfed San Diego."
A year later, this editorial condemning the city's dysfunctional culture of secrecy has itself spawned another ugly example of that culture of secrecy. According to sources, soon after the editorial appeared, Girard, with then-City Attorney Casey Gwinn's approval, filed a complaint about the leak with the Ethics Commission, whose members are appointed by the mayor and council. The complaint was based on a 2002 city ordinance that made it illegal for any former or current official to disclose confidential information received on the job.
Per Ethics Commission policy, commission official Lauri Davis refused to confirm or deny the existence of the leak investigation. But it exists – and is intensifying. In recent weeks, the commission has subpoenaed the home, office and cell phone records of some City Council members and some of their aides, scrutinized their appointment records and in general tried to do whatever it takes to document any contact between council members and Robert A. Kittle, editor of The San Diego Union-Tribune editorial page.
Now, considering all the hits San Diego has taken in recent years, this isn't on the short list of the worst horrors. But it is appalling nonetheless, on several levels:
The fact that there is a criminal investigation at all is fresh testament to the limited competence of city officials. A 1993 opinion by the California Attorney General's Office makes plain that local governments cannot adopt the exact sort of anti-leak law that the San Diego City Council passed nine years later. Why? Because state law – specifically, the landmark 1963 Ralph M. Brown Act requiring almost all public meetings be open – takes precedent. Council members apparently weren't told this before their 2002 vote adopting the ordinance.
The inquiry appears to us to be a precedent-setting attempt to use the Ethics Commission to intimidate those who might inform the media of crucial details about key city issues – details the public deserves to know. Given the commission's eagerness to probe this matter, it is no stretch to imagine requests for leak investigations becoming one more tool in the arsenal of local politicians out to punish their enemies or keep the public in the dark. While this is perhaps not a direct threat to freedom of the press and the First Amendment, it is still ominous.
Perhaps worst of all, it confirms anew how determined some key city officials are to impede the journalists, federal investigators and responsible officeholders determined to uncover exactly how the city's terrible fiscal crisis came to pass. This war on accountability and open government is precisely what was addressed in the Sept. 22, 2004, editorial that spawned the leak investigation. That the editorial opened up a new front in this war is simultaneously ironic and revealing.
The bottom line: It's time the Ethics Commission shut down this witch hunt. It's time the City Council repealed the misguided law that made it possible. And, once and for all, it's time that city leaders devoted all their energy to repairing the civic hemorrhage of recent years – instead of continued misguided and doomed efforts to keep evidence of their malfeasance from reaching the public.
