San Diego Union-Tribune Rebuffed Mara Elliott’s Threats Over 101 Ash Coverage
By Arturo Castañares
San Diego’s City Attorney complained to the region’s largest newspaper and threatened to sue over its coverage of her complicity in the 101 Ash Street scandal in hopes of impacting their reporting, and when the paper’s lawyer rebuffed her threats, she sent a second letter bemoaning that her correspondence had become public.
Legal experts believe Elliott improperly disclosed the City’s privileged information by discussing an internal legal memo in a Zoom meeting and two letters to the newspaper’s publisher as she attempted to protect her own reputation at the expense of her client, the City of San Diego.
Mara Elliott requested a meeting with San Diego Union-Tribune (SDUT) Publisher Jeff Light to complain about a story the newspaper published on October 13, 2021, detailing a legal memo which called into question her approval of the 101 Ash lease in 2016. That report, written by the law firm of Burke, Williams & Sorensen (BWS), concluded that the lease was “disproportionately unfavorable to the City.”
The SDUT’s story ran just two days after La Prensa San Diego first published a complete copy of a June 15, 2020, Burke legal memo which had been suppressed by Elliott’s office for more than a year. La Prensa San Diego has been the only media outlet to publish full copies of two Burke memos; one dated April 7, 2020, and the other on June 15, 2020.
Elliott held a Zoom meeting with Light and Managing Editor Lora Cicala on October 15th. As Elliott complained about the newspaper’s coverage, Light suggested she put her concerns in writing.
Light then received a letter from Elliott on official San Diego City Attorney letterhead, dated October 19, 2021, reiterating the same complaints she apparently raised during their call, claiming the disastrous building deal was “unanimously approved by the City Council and signed by Mayor Kevin Faulconer” before she “took office”, apparently in an attempt to deflect blame for the growing controversy over the building.
Elliott insisted to the SDUT that the lease was done before she “took office” as City Attorney in December 2016, but, as La Prensa San Diego has reported on several occasions, that misstates the fact that she took office one week before her office signed the lease which was the last approval necessary under the City’s Charter to make a contract binding upon the City.
During the call and in her two letters to the SDUT, Elliott ignored the fact that she had over five weeks to review the 101 Ash lease agreement before she authorized its final approval one week after being sworn in as City Attorney. She continues to press the fiction that she had nothing to do with the “approval” of the deal even though she was the City’s chief legal advisor and City Attorney when the deal was finalized on December 19, 2016.
In the letter to Light, Elliott pointed out that “ethical rules prohibit me from confirming or denying the authenticity of the memo”, yet she went on to challenge the SDUT coverage as being inconsistent with the very memo she says she cannot confirm or deny.
Elliott wrote that, although she “cannot comment on the authenticity of that memo, I can read it like anyone else, and I can compare what the memo says with what the SDUT claimed it said.”
Elliott is admitting the legal analysis is authentic simply by discussing it and using it as the basis to complain about the accuracy of the SDUT article.
The City Attorney quoted the Burke memo as stating its aim was to “review and analyze the facts and documents leading to the City’s decision to enter a lease-to-own agreement” and then argues that “As you know, Jan Goldsmith was City Attorney during the period leading to the City’s decision on the 101 Ash deal. I took office after the deal was unanimously approved by the City Council and signed by Mayor Kevin Faulconer. I did not work on Ash Street until after I was sworn in as City Attorney.”
Elliott’s complaint focused on one sentence in the article which she claims inaccurately summarized the Burke memo by saying “its bottom line message: city officials, including Elliott and Councilman Todd Gloria, failed to perform basic scrutiny of the $200 million-plus Ash St deal back in 2016.”
Although the thrust of her letter was to ask for a correction to the article, but also to deliver a not-too-subtle threat to sue for defamation.
“To the extent feasible, I ask that you take corrective action, and that you do so in a manner having at least as much visibility in print and online as you gave to the defamatory article,” Elliott wrote.
Defamation is the legal description of “any intentional false communication that harms a person’s reputation, decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.”
Elliott, as a lawyer and elected official, should be familiar with the California law that requires that someone who believes they have been defamed in the media must demand a correction or retraction within 20 days of the publication in order to be able to sue for special damages. Elliott’s letter was written only six days after the article.
SDUT LAWYER REBUFFS ELLIOTT’S THREATS
An attorney for a law firm representing the SDUT responded to Elliott’s letter with a clear rebuttal to her attempts to deflect responsibility for the approval of the 101 Ash lease deal.
“The 101 Ash deal happened, at least in part, on your watch. You were first sworn into office as City Attorney on December 12, 2016. The Ash Street agreement was signed by one of your deputies, beneath your name, one week later, on December 19, 2016,” wrote Jean-Paul Jassy, a partner with Jassy, Vick, Carolan LLP in Los Angeles, directly challenging Elliott’s claims that the deal was approved before she became City Attorney.
The response also directly challenged Elliott’s claim that the legal memo in some way exonerated her from its findings because it didn’t mention her name, but the lawyer points out that is “understandable since your office commissioned the Memo“.
“The Memo does not pin all the blame on your administration, which is understandable since your office commissioned the Memo. But the Memo also does not absolve your administration of all responsibility, nor does it place all blame on your predecessor,” the lawyer wrote.
The SDUT’s lawyer included a forceful refusal to change its story based on the accuracy of its central thesis that Elliott was in charge when the lease was signed.
“The Memo outlines substantial deficiencies in basic scrutiny of the Ash Street agreement in 2016, before the deal was executed by the City in early 2017. The Memo does not exempt your office, which signed the deal in 2016. Your Letter essentially concedes that you did no scrutiny in 2016. Put together, the Article, including the sentence at issue, is substantially – if not completely – true,” the law firm wrote.
After citing and explaining several key legal cases which set out the protections of media coverage, the letter again states that the SDUT’s story fairly depicted her involvement in approving the controversial lease deal.
“Here, SDUT fairly recounted the gist and sting of the Memo, which was essentially an examination of the Ash Street deal, concluding that city officials did not sufficiently scrutinize the deal before it was enacted in 2017 – and you were one of those city officials,” the letter reads.
The SDUT’s lawyer then sent a clear message that any defamation lawsuit filed by Elliott would be fruitless.
“Contrary to your assertions, the Article cannot give rise to a defamation claim, and there is no basis to demand a correction. SDUT stands by its reporting.”
The law firm’s five-page letter dedicated more than two full pages to outline cases which protect media outlets from frivolous lawsuits aimed at chilling coverage of important public issues.
“Your letter does not expressly threaten to sue, which we appreciate, but it does contain implicit threats and buzzwords alleging defamation and demanding ‘corrective action’ which is not warranted. Any defamation claim has no prospect of success, and no ‘corrective action’ is needed,” Jassy wrote.
Although Elliott claimed in her letter that she wanted open, honest and professional lines of communication with the SDUT, the newspaper’s lawyer made it clear they are “committed to that and welcomes the same from you and your office going forward”, but also defended its coverage and staff from “express or veiled” threats.
“However, SDUT does not take baseless threats of legal action – whether express or veiled – lightly. SDUT stands by its reporting on the Article, and will defend itself and its staff from any suggestion or suit alleging that the Article was false or defamatory,” Jassy wrote.
Just five days after the SDUT’s response, Elliott fired off another letter on her official City Attorney stationary expressing surprise at the tone of the lawyer’s letter, and also complaining that someone filed a public records request for their correspondence.
“The day after I sent the requested letter to you, the City received a California Public Records Act request for communications between you and me and members of our respective staffs, as well as information on Zoom meetings between us. This seemed more than coincidental, and I contacted you to let you know as a courtesy,” Elliott wrote.
Elliott’s letter also feigned shock at the lawyer’s response to her threat of legal action.
“I have now received a strongly worded letter essentially threatening to litigate any potential defamation claim I may bring,” Elliott wrote in her second letter to Light. “I am mystified by the actions leading to Mr. Jassy’s letter, and disappointed that my effort to collaboratively engage with you was handled in this manner.”
ELLIOTT DEBATES PRIVILEGED DOCUMENT SOLELY TO DEFEND HERSELF
In her meeting and letters to Light, Elliott contradicted what she admitted to the SDUT’s Editorial Board in September 2020 during her interview for their election endorsement. In that interview, Elliott confirmed that she had access to the entire City Attorney’s office during the month between her election and the day she was sworn into office, and then had one additional week as the official City Attorney before the deal was finalized on December 19, 2016.
Elliott again left out the important fact that she could have, and should have, asked to review all of the documentation required before a contract can be executed by the City, including compliance with the City Charter Section 225 which requires the public disclosure of all parties that will benefit directly or indirectly from the contract.
The City is now suing to cancel the 101 Ash lease because it was revealed last year that the City’s own private real estate broker, Jason Hughes, received a previously undisclosed $4.41 million profit split from the building landlord, Cisterra Development. Hughes’ involvement would have become known had the City Attorney’s office conducted its review of all necessary documentation before signing the lease.
Elliott is correct in claiming that the City Council unanimously approved the deal before she became City Attorney, but she consistently omits the fact that the lease was not binding upon the City until she provided the final signature on December 19, 2016.
Lawyers who have reviewed Elliott’s letters to Light believe she has improperly disclosed confidential information by discussing the legal memos which she claims are still protected by attorney-client privilege. Elliott, as a lawyer, is required to protect her client’s information, and not use it in an effort to defend herself. The City Council is the client and only the Council, by a vote, can waive its attorney-client privilege.
By arguing over the language in the Burke memos released by La Prensa San Diego and used by the SDUT for their article, Elliott has admitted the leaked documents are authentic and, therefore, most likely violated her duty to her client.
Elliott’s meeting and letters to Light were not to defend the City’s handling of the acquisition of the building, to dispute the authenticity of the leaked memos, or even to argue that the building is worth keeping for the use of the City; instead, the entire thrust of her contact with the SDUT was to distance herself from the disastrous deal and to claim she had no responsibility for the City entering into the deal in the first place.
DEVASTING BURKE MEMO HIDDEN FROM CITY COUNCIL
Burke, Williams & Sorensen (BWS) lawyers were hired by the City Attorney’s office in early 2020 to investigate the 101 Ash deal after the building was evacuated by the County Air Pollution Control District when it discovered loose asbestos material throughout the building. The dangerous material was disturbed during the remodeling work conducted after the City acquired the building through the 20-year lease-to-own deal in 2016.
The resulting 26-page Burke memo analyzed the process used by the City to negotiate and approve the 101 Ash lease deal and concluded that the City failed to perform its own due diligence on the building, and, instead, relied exclusively on representations and reviews conducted by the building’s sellers.
The report specifically calls the lease “disproportionately unfavorable to the City” and leaves no doubt that the legal review performed by the City Attorney’s office was substandard, including accepting the building on an “AS-IS” basis and relieving the sellers and landlord from any liability for any known or unknown defects or problems with the 55-year-old office tower.
The Burke lawyers then went so far as to explain what steps their own legal firm would have taken to better protect the City in the deal, providing a contrast with the faulty work performed by the City Attorney’s office.
The evolving versions of the Burke memos, written over a 5-week period during April through June 2020, detail how the outside lawyers attempted to understand why the City ended up acquiring a building with so many shortcomings that employees were eventually evacuated from it in January 2020.
The Burke memos were so damaging to the City’s process in acquiring the building that Elliott apparently hid the legal memos from her client, the City Council. Several councilmembers who served at the time the report was written -and three who are currently on the Council- have stated they had never seen or been briefed on the memo until La Prensa San Diego first published them in October 2021.
Elliott has since tried to distance herself from the deal by splitting hairs about who actually “approved” the acquisition, but it is indisputable that a contract with the City can only become binding and enforceable after being signed by the City Attorney.
Jan Goldsmith, who served two terms as City Attorney before Elliott, has clarified that the City Attorney is independently elected and not simply a rubber stamp for the Mayor and City Council.
In an exclusive interview with La Prensa San Diego last year, Goldsmith clarified that the independently elected City Attorney is not bound to sign a contract already authorized by a City Council ordinance if City Attorney believes the deal is insufficient to protect the interests of the City.
“She didn’t have to sign it,” Goldsmith said, adding that Elliott could have resisted signing the faulty deal or advising the Council of its legal shortcomings or dangers before signing it. Elliott did not submit any confidential communications or hold any closed session meetings with the Council before signing the contract.
Elliott confirmed her ability to have rejected the deal during her endorsement interview with the San Diego Union-Tribune Editorial Board when she said her refusal to sign it would have created turmoil. She has also tried to define the City Attorney’s role as perfunctory by saying she can only approve a contract “as to form” meaning her only power is to say the contract is legal even if damaging, unfavorable, or unwise for taxpayers.
During the interview, Elliott told the SDUT Board, including Light, that she began investigating the controversial deal in early 2020, more than three years after she signed it, but only after the building was deemed a “public nuisance” by the County.
“We brought in outside counsel who specialize in looking at transactions like this to help us navigate that,” Elliott told the SDUT Editorial Board during their September 9, 2020 interview, knowing that the Burke reports had already criticized her office, yet that she had withheld that information from the Council, the public, and the SDUT Editorial Board itself as they were considering which candidate to endorse in the race for City Attorney.
But, in seeking their endorsement, Elliott also failed to explain to the SDUT Editorial Board that she had two legal reports from two separate law firms in her office which both detailed her involvement in approving the 101 Ash deal.
OTHER LEGAL REPORT EDITED BY ELLIOTT
La Prensa San Diego reported last year that another “independent” report written another outside law firm purportedly to provide the “unvarnished truth” about the 101 Ash deal was actually edited and watered down by Elliott’s office before it was released to the public.
That report, known as the Parker Report, written by attorney James Parker, released in July 2020, was written after the Burke memos and also left out key findings which were known to Elliott at the time, but hidden from the public until media reports released them.
Elliott’s spokesperson, Hilary Nemchik, admitted last year that the Parker report was never intended to be independent because Parker had already been retained as legal counsel to the City for lawsuits related to the 101 Ash building.
“Jim Parker was hired by the City as outside counsel to represent the City in litigation. He was not hired to do an independent investigation,” Nemchik admitted, directly contradicting the statements made during a August 6, 2020 City Council meeting.
Emails released through California Public Records Act requests revealed several versions of the Parker report had been sent back and forth between Elliott’s office and Parker during the finalization of the report.
The Burke memos and the Parker report were both touted as being independent reviews of the 101 Ash deal, but both were managed, controlled, and eventually shielded from full public disclosure by Elliott and her office.
In her various attempts to distance herself from the approval of the 101 Ash deal, Elliott also claims the lease deal was “signed by Mayor Kevin Faulconer“, but her statement is factually incorrect.
Faulconer’s signature does not appear anywhere within the 58-page agreement. Faulconer and the City Council had approved a four-page ordinance which authorized the lease deal, but only Elliott and the City’s Director of Real Estate Assets actually signed the lease document.