PERSPECTIVE: City Attorney Still Manipulating Investigations into 101 Ash St
The public may never know what really happened in the worst building deal the City of San Diego has ever done because of an ongoing coverup and interference with every investigation that’s attempted to unravel the riddle of who knew what when about 101 Ash St.
For nearly two years, City Attorney Mara Elliott and her office have impeded, slowed, or blocked efforts to expose the truth behind one of San Diego’s worst political deals in history, and the obstruction continues to this day.
First, there was a review done early last year by the law firm of Burke, Williams & Sorensen whose legal memos began to get so close to stumbling on the truth that Elliott hid them from the City Council, and used a disputed version to sacrifice one reporter and scare off others.
Elliott claims one footnote in the 26-page legal memo was “fabricated”, yet she doesn’t dispute the findings of the report that says she failed to conduct standard due diligence and relied solely on representations by the seller on the conditions of the building when she signed the lease that the report found was “disproportionately unfavorable to the City” – so she hid the memo from her client, the elected City Council, and, therefore, the public.
Then, just a few months later, another investigation done by attorney James Parker was edited and watered down by the City Attorney, but passed off to the public as the “unvarnished truth” when, in fact, it was a whitewashing that was neither unvarnished, nor the truth. Again the public was deceived.
It was only because a few brave people in her office who leaked the memos to the media that we even know this much, but there is still much more to uncover.
Then this year, the independent City Auditor launched an audit report on the failed building acquisition, but he, too, was stymied in his attempt to get to the bottom of the story.
Elliott denied the Auditor the ability to hire his own lawyers to help him enforce his City Charter powers to summons any City official, employee, or contractor under oath to further his audit.
Without any lawyers and, therefore, without the ability to go to court to seek subpoenas to compel witnesses, several important figures, including former Mayor Kevin Faulconer, former staffer Ron Villa, and the City’s real estate broker Jason Hughes all failed to respond to the Auditor’s ineffectual requests.
Not only did Elliott deny the Auditor lawyers he needed to more accurately perform his investigation, but her office also delayed approving legal fees for one of the most important witnesses the Auditor sought to interview; the City’s former Director of Real Estate Assets, Cybele Thompson.
Thompson was directly involved with the negotiations to acquire the building and she interacted with Hughes, the sellers, and Cisterra, the City’s landlord in the lease. Her testimony could provide important first-hand accounts of why and how the deal was put together.
But Thompson’s request to the City Attorney to pay for her representation was delayed as she communicated back and forth with the Auditor to schedule an interview pending the decision. Thompson made it clear to the Auditor that she was willing to testify but, as any responsible person would, asked for a lawyer to protect her rights.
Thompson is entitled to lawyers paid for by the City because all of her interactions took place as part of her duties as a City official.
The City Attorney, however, never approved Thompson’s legal fees within the timeframe the Auditor needed to complete his investigation, so Thompson was not interviewed for the audit report.
The City’s Chief Operating Officer eventually told Thompson the City would not approve the legal fees because speaking with the Auditor was “voluntary” and that if she wanted to do the meeting she would have to pay her own legal fees.
Elliott also did not make herself available to the Auditor even though he repeatedly asked for her office’s input for his report, but after the audit, Elliott criticized the report, saying that “without interviewing key witnesses and uncovering all of the specific facts underlying those two transactions, the Audit is an incomplete and inaccurate work product.” Duh!
Hampering the Auditor’s investigation by denying him the ability to hire his own lawyers, denying Thompson’s request for her own lawyer so she could talk, and failing to testify herself all narrowed the scope of what should have been a truly independent investigation -yet Elliott later complained the audit was incomplete.
And, then this week, the City Attorney’s office again stalled another request by Thompson for legal representation for a scheduled meeting with the District Attorney’s office which is conducting its own criminal investigation into the scandal.
Thompson was asked to meet with the City Attorney’s office last week to find out what she knows about the debacle. Multiple members of the District Attorney’s office joined the meeting, including their lead prosecutor. Thompson’s request to cover those legal fees had been approved by the City Attorney’s office.
Interestingly, at the end of that meeting, the District Attorney prosecutor asked Thompson’s lawyer if they could interview her without the City Attorney’s office being present. It seemed like they heard something that piqued their interest.
Again willing to be interviewed, Thompson requested approval from the City Attorney’s office for her legal fees to be covered in the meeting with the DA’s office. Again, like with her request when trying to meet with the Auditor, Thompson’s request is still pending, and has caused the meeting with the DA to be delayed. Sound familiar?
Frustrated by the delays, Thompson has asked the DA’s office for an immunity agreement so that she can be interviewed without her lawyer, but also without fear of waiving her own rights. If neither of Thompson’s requests are granted within the next few day, she may not sit for the DA meeting before the end of the year, if at all.
Time and time again, whenever she can, Elliott uses her office to interfere with investigations that are trying desperately to get to the truth.
Not only is Elliott in a position to thwart the investigations, but it’s even more maleficent because she herself is one of the subjects of the inquires.
Elliott is the City’s elected City Attorney who can prosecute misdemeanor crimes, but is also the City’s chief legal advisor, empowered by the City’s Charter as the only official who can bind the City in a contract.
It was Elliott who provided the last signature on the 101 Ash Street lease in 2016 to make it binding, and she was the only official responsible for ensuring the deal was legally appropriate and met all of the Charter’s requirements, including compliance with Section 225 which requires full disclosure of all of the parties who stand to benefit from the agreement.
Elliott failed to ensure that the City conduct its own due diligence on the true conditions of the building, as well as confirming who the City was entering into a deal with as required by the City Charter.
In the end, it turned out the building was not in as good a condition as represented by the sellers, and that the City’s own real estate broker had a hidden profit share that netted him $4.4 million in the deal he helped negotiate -both would have been discovered by diligent and competent legal counsel.
Now, the City -led by Elliott- is suing Cisterra and Hughes to undo the lease over the unusable condition of the building and Hughes’ conflict of interest.
It’s obvious that this whole debacle could have been avoided with better lawyering by Elliott up front. The City would have known the building was in need of major repairs and that Hughes stood to make millions off of the deal.
Maybe the Council wouldn’t have approved the deal. Maybe Elliott could have negotiated better protections for taxpayers. Maybe we could have avoided millions of dollars in lost payments for an empty building and dozens of pending lawsuits.
But, what is not a maybe, is that Elliott has manipulated every investigation reviewing the deal which she was at the center of approving -an obvious conflict of interest- and now she’s doing everything she can to make sure investigations into the deal don’t reveal her culpability.
Maybe, just maybe, if Elliott got out of the way, the people within her office who leaked the information in the first place might feel safe to come forward without fear of losing their jobs, and we could all finally know the full truth about 101 Ash. Just sayin’.
Castañares is the Publisher and Editor-at-Large of La Prensa San Diego. He is the 2021 winner of the prestigious Ruben Salazar National Award for Excellence in Journalism in Print presented by the California Chicano News Media Association, the oldest Hispanic journalists organization in the US. He can be reached directly at email@example.com.