1 2 3 BRIGGS LAW CORPORATION [FILE: 1761.02] Cory J. Briggs (State Bar no. 176284) Anthony N. Kim (State Bar no. 283353) 99 East “C” Street, Suite 111 Upland, CA 91786 Telephone: 909-949-7115 4 Attorneys for Plaintiff and Petitioner Donna Frye 5 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN DIEGO – HALL OF JUSTICE 9 10 DONNA FRYE, 11 12 13 14 15 ) ) Plaintiff and Petitioner, ) ) vs. ) ) CITY OF SAN DIEGO; and DOES 1 through 100, ) ) Defendants and Respondents. ) ) ) 16 CASE NO. 37-2017-00041323-CU-MC-CTL VERIFIED FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT, THE CALIFORNIA CONSTITUTION, AND OTHER LAWS Action Filed: October 30, 2017 Department: C-61 (Meyer) 17 18 Plaintiff and Petitioner DONNA FRYE (“PLAINTIFF”) alleges as follows: 19 20 Introductory Statement 1. PLAINTIFF brings this lawsuit under the California Public Records Act (“CPRA”), the 21 California Constitution, the San Diego City Charter, and other applicable legal authorities for the 22 purposes of maintaining as much transparency as possible when Defendant and Respondent CITY OF 23 SAN DIEGO (“CITY”) is asked by its past attorneys to waive conflicts of interest when those same 24 attorneys represent parties who are adverse to CITY’s interests. PLAINTIFF has been an open- 25 government advocate for years. She was therefore dismayed when CITY recently adopted a policy that 26 codified CITY’s practice of allowing waiver requests to be approved without the matter being 27 considered by the San Diego City Council in open session. This institutionalized secrecy means that 28 waiver requests are approved without the public’s knowledge and without any opportunity to express 1 its views on the wisdom or peril of approving the requests. State and local law require policies that 2 limit the public’s access to information and ability to observe the machinery of government in action 3 to be adopted only after the legislative body makes findings demonstrating how such policies promote 4 transparency and accountability in government. Because the policy recently adopted by CITY actually 5 promotes secrecy, and because it was not adopted with and indeed could not have been adopted with 6 the legally required findings, the policy is illegal. 7 2. Further proving the problems inherent in CITY’s practice of keeping waiver requests 8 secret is its inability to produce copies of the waiver requests when members of the public ask for them. 9 As part of her opposition to the policy of secrecy that was recently adopted, PLAINTIFF made a public- 10 records request for “the Conflict of Interest Waivers that have been approved by the City in the past 11 5 years (2012 to 2017).” However, CITY closed PLAINTIFF’s request without producing all 12 responsive waivers – presumably because, like other members of the public, its representatives could 13 not find them. 14 Parties 15 3. At all times relevant to this lawsuit, PLAINTIFF has been a resident of the City of San 17 4. CITY is a “local agency” within the meaning of Government Code Section 6252. 18 5. The true names and capacities of the Defendants/Respondents identified as DOES 1 16 Diego. 19 through 100 are unknown to PLAINTIFF, who will seek the Court’s permission to amend this pleading 20 in order to allege the true names and capacities as soon as they are ascertained. PLAINTIFF is 21 informed and believes and on that basis alleges that each of the fictitiously named 22 Defendants/Respondents 1 through 100 has jurisdiction by law over one or more aspects of the public 23 records that are the subject of this lawsuit or has some other cognizable interest in the public records. 24 6. PLAINTIFF is informed and believes and on that basis alleges that, at all times stated 25 in this pleading, each Defendant/Respondent was the agent, servant, or employee of every other 26 Defendant/Respondent and was, in doing the things alleged in this pleading, acting within the scope 27 of said agency, servitude, or employment and with the full knowledge or subsequent ratification of his 28 principals, masters, and employers. Alternatively, in doing the things alleged in this pleading, each Defendant/Respondent was acting alone and solely to further his own interests. FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 2 1 2 Jurisdiction and Venue 7. The Court has jurisdiction over this lawsuit pursuant to Government Code Sections 6258 3 and 6259; Code of Civil Procedure Sections 526a, 1060 et seq., and 1084 et seq.; the California 4 Constitution; the San Diego City Charter; and the common law, among other provisions of law. 5 6 8. Venue in this Court is proper because the obligations, liabilities, and violations of law alleged in this pleading occurred in the County of San Diego in the State of California. 7 FIRST CAUSE OF ACTION: Violation of Open-Government Laws (Against All Defendants/Respondents) 8 9 9. The preceding allegations in this pleading are fully incorporated into this paragraph. 10 10. At all times relevant to this lawsuit, Section 3(b) of Article 1 of the California 11 Constitution has provided as follows: “(1) The people have the right of access to information 12 concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the 13 writings of public officials and agencies shall be open to public scrutiny. (2) A statute, court rule, or 14 other authority, including those in effect on the effective date of this subdivision, shall be broadly 15 construed if it furthers the people’s right of access, and narrowly construed if it limits the right of 16 access. A statute, court rule, or other authority adopted after the effective date of this subdivision that 17 limits the right of access shall be adopted with findings demonstrating the interest protected by the 18 limitation and the need for protecting that interest. (3) Nothing in this subdivision supersedes or 19 modifies the right of privacy guaranteed by Section 1 or affects the construction of any statute, court 20 rule, or other authority to the extent that it protects that right to privacy, including any statutory 21 procedures governing discovery or disclosure of information concerning the official performance or 22 professional qualifications of a peace officer. (4) Nothing in this subdivision supersedes or modifies 23 any provision of this Constitution, including the guarantees that a person may not be deprived of life, 24 liberty, or property without due process of law, or denied equal protection of the laws, as provided in 25 Section 7. (5) This subdivision does not repeal or nullify, expressly or by implication, any constitutional 26 or statutory exception to the right of access to public records or meetings of public bodies that is in 27 effect on the effective date of this subdivision, including, but not limited to, any statute protecting the 28 confidentiality of law enforcement and prosecution records. (6) Nothing in this subdivision repeals, FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 3 1 nullifies, supersedes, or modifies protections for the confidentiality of proceedings and records of the 2 Legislature, the Members of the Legislature, and its employees, committees, and caucuses provided by 3 Section 7 of Article IV, state law, or legislative rules adopted in furtherance of those provisions; nor 4 does it affect the scope of permitted discovery in judicial or administrative proceedings regarding 5 deliberations of the Legislature, the Members of the Legislature, and its employees, committees, and 6 caucuses. (7) In order to ensure public access to the meetings of public bodies and the writings of public 7 officials and agencies, as specified in paragraph (1), each local agency is hereby required to comply 8 with the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 9 of Title 1 of the Government Code) and the Ralph M. Brown Act (Chapter 9 (commencing with Section 10 54950) of Part 1 of Division 2 of Title 5 of the Government Code), and with any subsequent statutory 11 enactment amending either act, enacting a successor act, or amending any successor act that contains 12 findings demonstrating that the statutory enactment furthers the purposes of this section.” 13 11. At all times relevant to this lawsuit, Section 216.1 of the San Diego City Charter has 14 provided as follows: “(a) The people have the right to instruct their representatives, petition government 15 for redress of grievances, and assemble freely to consult for the common good. (b) (1) The people have 16 the right of access to information concerning the conduct of the people’s business, and therefore, the 17 meetings of public bodies and the writings of public officials and agencies shall be open to public 18 scrutiny. (2) A statute, court rule, or other authority, including those in effect on the effective date of 19 this Section, shall be broadly construed if it furthers the people’s right of access, and narrowly 20 construed if it limits the right of access. A statute, court rule or other authority adopted after the 21 effective date of this Section that limits the right of access shall be adopted with findings demonstrating 22 the interest protected by the limitation and the need for protecting that interest. (3) Nothing in this 23 Section supersedes or modifies the right of privacy guaranteed by Section 1 of the California 24 Constitution or affects the construction of any statute, court rule, or other authority to the extent that 25 it protects that right to privacy, including any statutory procedures governing discovery or disclosure 26 of information concerning the official performance or professional qualifications of a peace officer. (4) 27 Nothing in this Section supersedes or modifies any provision of this Charter or the California 28 Constitution, including the guarantees that a person may not be deprived of life, liberty or property FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 4 1 without due process of law, or denied equal protection of the laws. (5) This Section does not repeal or 2 nullify, expressly or by implication, any constitutional or statutory exception to the right of access to 3 public records or meetings of public bodies that is in effect on the effective date of this Section, 4 including, but not limited to, any statute protecting the confidentiality of law enforcement and 5 prosecution records.” 6 12. Defendants/Respondents have violated the applicable open-government laws in at least 7 three ways. By way of example and not limitation, PLAINTIFF is informed and believes and on that 8 basis alleges: 9 10 A. CITY has violated the California Constitution and the San Diego City Charter as follows: 11 1. On or about August 4, 2017, the San Diego City Council passed 12 Resolution no. R-311286 approving that certain Council Policy on Conflict of Interest Waivers 13 (“Council Policy”). A true and correct copy of the Resolution is attached to this pleading as Exhibit 14 “A,” and a true and correct copy of the draft Council Policy that was approved by the resolution is 15 attached to this pleading as Exhibit “B.” 16 2. Prior to and after the passage of Resolution no. R-311286, PLAINTIFF 17 communicated with CITY in an attempt to prevent the Council Policy from being approved. CITY’s 18 representatives promised PLAINTIFF that they would work with her to resolve her concerns without 19 the need for litigation, but they did not follow through on their promise. A true and correct copy of the 20 e-mail correspondence between PLAINTIFF and CITY’s representatives is attached to this pleading 21 as Exhibit “C.” 22 3. The Council Policy promotes secrecy and limits the right of the public 23 to review requests for conflict-of-interest waivers from CITY’s past attorneys and to monitor and 24 participate in the discussions by CITY’s leaders over the pros and cons of granting such requests. 25 4. The Resolution approving the Council Policy contains no findings that 26 satisfy the applicable requirements of the California Constitution or the San Diego City Charter 27 regarding the interest protected by the Council Policy and the need for protecting that interest. 28 FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 5 1 B. Plaintiff is informed and believe and on that basis alleges that CITY has violated 2 the California Constitution, the San Diego City Charter, the Ralph M. Brown Act, and/or the State Bar 3 Act as follows: 4 1. The Resolution recognizes that, depending on the matter in question, “the 5 client” for purposes of considering a request for a conflict-of-interest waiver is the San Diego City 6 Council.” 7 2. The Council Policy does not require that any waiver request be put on 8 the San Diego City Council’s agenda unless (i) the City Attorney’s Office has notified the San Diego 9 City Council in writing that a waiver request has been made, (ii) the City Attorney’s Office has 10 determined that the City Council is “the client” for purposes of approving the request, and (iii) at least 11 four members of the City Council ask that the request be put on its meeting agenda. 12 3. For matters on which the City Attorney’s Office has determined that the 13 City Council is “the client,” the Council Policy authorizes a process for approving waiver requests that 14 are done without public disclosure, input, or deliberation. For matters on which the City Attorney’s 15 Office has determined that a CITY officer or body other than the City Council is “the client,” the 16 Council Policy again authorizes a process for approving waiver requests that are done without public 17 disclosure, input, or deliberation. These procedures violate the California Constitution, the San Diego 18 City Charter, and/or the Ralph M. Brown Act. 19 4. The Council Policy also impermissibly delegates to the City Attorney’s 20 Office the City Council’s obligation to determine who “the client” is for purposes of any waiver 21 request, and it further impermissibly delegates the authority to approve at least some waiver requests 22 to a CITY officer or body other than the City Council when in fact only the City Council give such 23 approval. 24 5. Plaintiff believes that, after having a reasonable opportunity to conduct 25 and complete discovery, the following allegations can be proven: CITY has approved at least one 26 waiver request since the Council Policy took effect, without the City Council voting at a duly agendized 27 meeting to authorize the request’s approval or to delegate authority to approve the request even though 28 FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 6 1 the City Council is “the client” whose approval or delegation of authority is required in order for the 2 waiver to be legally valid. 3 6. Plaintiff believes that, after having a reasonable opportunity to conduct 4 and complete discovery, the following allegations can be proven: CITY has approved at least one 5 waiver request since the Council Policy took effect after the City Council voted in secret to approve 6 the request or delegate authorization to approve it. Alternatively and additionally, CITY has denied 7 at least one waiver request since the Council Policy took effect after the City Council voted in secret 8 not to approve the request and not to delegate authority to approve it. A true and correct copy of 9 examples of the waiver requests and approvals described in this paragraph is attached to this pleading 10 as Exhibit “D.” 11 7. Plaintiff believes that, after having a reasonable opportunity to conduct 12 and complete discovery, the following allegations can be proven: The written “Procedure for Approving 13 or Denying Conflict of Interest Waivers” adopted by the City Attorney’s Office states that third step 14 in the Office’s procedure “is to obtain approval from either the Mayor or Council, depending on the 15 issue in the request for waiver. If it is within the Mayor’s authority, he or she may waive or refuse to 16 waive the conflict of interest without Council approval. Any matter that is not under the purview of 17 the Mayor must be approved or denied by Council.” The approval or denial by the City Council, as 18 described in the third step, constitutes an “action” under the Brown Act that may only be taken at a duly 19 agendized meeting and not in secret. 20 21 22 C. Plaintiff is informed and believe and on that basis alleges that CITY has violated the California Constitution, the San Diego City Charter, and/or the CPRA as follows: 1. On or about July 31, 2017, PLAINTIFF submitted the following request 23 for public records to CITY through its online public-records portal (known as NextRequest): “I am 24 trying to find copies of documents for the Conflict of Interest Waivers that have been approved by the 25 City in the past 5 years (2012 to 2017). I have been unable to locate them online and hope that you can 26 assist me in locating them or providing copies to me.” CITY responding by providing some waivers 27 and related documents and then closing PLAINTIFF’s request. 28 PLAINTIFF’s request and CITY’s response is attached to this pleading as Exhibit “E.” A true and correct copy of FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 7 1 2. CITY did not provide all responsive waivers and related public 2 documents as requested by PLAINTIFF. At least one approved waiver was not provided to 3 PLAINTIFF. 4 13. PLAINTIFF has been harmed as a result of Defendants’/Respondents’ failure to lawfully 5 process requests for conflict-of-interest waivers and produce all public records responsive to her 6 request. By way of example and not limitation, the legal rights of PLAINTIFF to access information 7 concerning the conduct of the people’s business is being violated and continues to be violated. 8 SECOND CAUSE OF ACTION: Declaratory Relief under Code of Civil Procedure Section 1060 et seq. (Against All Defendants/Respondents) 9 10 14. The preceding allegations in this pleading are fully incorporated into this paragraph. 11 15. PLAINTIFF is informed and believes and on that basis alleges an actual controversy 12 exists between her, on the one hand, and Defendants/Respondents, on the other hand, concerning their 13 respective rights and duties under the California Constitution, the San Diego City Charter, the Ralph 14 M. Brown Act, the CPRA, the common law, and other applicable legal authorities. As alleged in this 15 pleading, PLAINTIFF contends that CITY is not and has not been lawfully processing requests for 16 conflict-of-interest waivers and has not produced all public records responsive to her request as 17 required by law; whereas Defendants/Respondents dispute PLAINTIFF’s contention. 18 19 16. PLAINTIFF desires a judicial determination and declaration on the matters described in the preceding paragraph. 20 Prayer 21 FOR ALL THESE REASONS, PLAINTIFF respectfully prays for the following relief against 22 all Defendants/Respondents (and any and all other parties who may oppose PLAINTIFF in this lawsuit) 23 jointly and severally: 24 25 A. On the First Cause of Action: 1. A judgment determining or declaring that Defendants/Respondents have not 26 promptly and fully complied with the California Constitution, the San Diego City Charter, the Ralph 27 M. Brown Act, the CPRA, the common law, the State Bar Act, and/or other applicable laws with regard 28 FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 8 1 to the processing of requests for conflict-of-interest waivers and/or the response to her request for 2 public records, and that those waiver requests that have been illegally approved are invalid; 3 2. A writ of mandate ordering Defendants/Respondents to promptly and fully 4 comply with the California Constitution, the San Diego City Charter, the Ralph M. Brown Act, the 5 CPRA, the common law, the State Bar Act, and/or other applicable laws with regard to the processing 6 of requests for conflict-of-interest waivers and/or the response to PLAINTIFF’s request for public 7 records; and 8 9 10 3. Preliminary and permanent injunctive relief directing Defendants/Respondents to fully respond to PLAINTIFF’s request for public records and to permit her to inspect and obtain copies of all responsive public records. 11 B. 12 On the Second Cause of Action: 1. An order determining and declaring that Defendants’/Respondents’ have not 13 fully complied with the California Constitution, the San Diego City Charter, the Ralph M. Brown Act, 14 the CPRA, the common law, and/or other applicable laws with regard to the processing of requests for 15 conflict-of-interest waivers and/or the response to PLAINTIFF’s request for public records; and 16 2. Preliminary and permanent injunctive relief directing Defendants/Respondents 17 to fully comply with the California Constitution, the San Diego City Charter, the Ralph M. Brown Act, 18 the CPRA, the common law, and/or other applicable laws with regard to the processing of requests for 19 conflict-of-interest waivers and/or the response to PLAINTIFF’s request for public records. 20 C. 21 On All Causes of Action: 1. An order providing for the Court’s continuing jurisdiction over this lawsuit in 22 order to ensure that Defendants/Respondents fully comply with the California Constitution, the San 23 Diego City Charter, the Ralph M. Brown Act, the CPRA, the common law, and/or other applicable 24 laws; 25 26 27 2. All attorney fees and other legal expenses incurred by PLAINTIFF in connection with this lawsuit; and 3. Any further relief that this Court may deem appropriate. 28 FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 9 1 Date: February 8, 2019. Respectfully submitted, 2 BRIGGS LAW CORPORATION 3 4 By: ___________________________ Cory J. Briggs 5 Attorneys for Plaintiff and Petitioner Donna Frye 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST AMENDED COMPLAINT FOR DECLARATORY, INJUNCTIVE, AND OTHER RELIEF ETC. Page 10 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT, THE CALIFORNIA CONSTITUTION, AND OTHER LAWS Exhibit “A” ..... 311286 RESOLUTION NUMBER R-- - - - - - DATE OF FINAL PASSAGE _....c::A.....,UG""'---=-G:·......_4......,20"-'-'17'-----A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN DIEGO TO APPROVE COUNCIL POLICY NO. TITLED CONFLICT OF INTEREST WAIVERS. WHEREAS, the City of San Diego (City) occasionally receives requests to waive potential conflicts of interest under the California Rules ofProfessional Conduct (CRPC), Rule 3-31 O(E); and WHEREAS, CRPC, Rule 3-310 requires that the client give informed consent when its attorney or former attorney has a potential conflict of interest; and WHEREAS, CPRC, Rule 3-600 defines "the client" as the highest authorized officer, employee, body, or constituent overseeing the particular matter; and WHEREAS, depending upon the matter, the client authorized to waive a potential or actual conflict of interest will be the City Council (Council) as the legislative body of the City; and WHEREAS, the Council Policy provides guidance on when conflicts of interest may be waived; and WHEREAS, the Council Policy outlines a procedure for notifying Council in writing of requests for a waiver of potential conflicts of interest that concern matters for which the City Attorney has determined Council to be "the client" under CPRC, Rule 3-600; and WHEREAS, the Rules Committee reviewed the proposed Council Policy on Conflict of Interest Waivers at its July 27, 2017 meeting and voted 4-0 with one member absent to forward it to the full Council with a recommendation to adopt the proposed Council Policy; NOW, THEREFORE, -PAGE 1 OF 2- .... (R-2018-41) BE IT RESOLVED, by the City Council of the City of San Diego, that the Council Policy No._ titled "Conflict oflnterest Waivers" is approved and adopted. BE IT FURTHER RESOLVED, that the City Clerk is instructed to update the Council Policy Manual to reflect the addition of this Council Policy. APPROVED: MARA W. ELLIOTT, City Attorney By ~- ~- ~~y-r-Catherine C. Morrison Deputy City Attorney CCM: pd:jvg July 28, 2017 Or.Dept: City Attorney Doc. No.: 1550296 I certify that the foregoing Resolution was passed by the Council of the City of San Diego, at this AUG 0 1 2017 meeting of ELIZABETH S. MALAND City Clerk Approved: ------\~ll-f--~~J4_/7!....____ (date) Vetoed: (date) KEVIN L. FAULCONER, Mayor -PAGE2 OF 2- .. AUG o·-12017 Passed by the Council of The City of San Diego on Councilmembers Barbara Bry LorieZapf Chris Ward Yeas Nays Not Present Recused ~ 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 David Alvarez Georgette Gomez 0 Mark Kersey Chris Cate Scott Sherman ;d 0 ~ ~0 Myrtle Cole , by the following vote: 0 0 0 0 ~ ¢ Date of final passage _ __,_A....,.U'-31!6---'&:.._4~20"'-'-17_,____ _ (Please note: When a resolution is approved by the Mayor, the date of final passage is the date the approved resolution was returned to the Office of the City Clerk.) AUTHENTICATED BY: (Seal) KEVIN L. FAULCONER Mayor of The City of San Diego, California. ELIZABETH S. MALAND City Clerk of The City of San Diego, California. By~~ , Deputy Office of the City Clerk, San Diego, California Resolution Number R-_---=3:....:1,;,:_1_2_8_6_J_ _ __ FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT, THE CALIFORNIA CONSTITUTION, AND OTHER LAWS Exhibit “B” CITY OF SAN DIEGO, CALIFORNIA COUNCIL POLICY CURRENT SUBJECT: CONFLICT OF INTEREST WAIVERS POLICY NO.: [###]-[##] EFFECTIVE DATE: [Month Day, Year] BACKGROUND: The City of San Diego (City) occasionally receives requests to waive potential conflicts of interest under the California Rules of Professional Conduct (CRPC), Rule 3-310(E). CRPC Rule 3-310(E) prohibits an attorney from representing clients whose interests may be adverse to, and therefore conflict with, another client’s or a former client’s. Under the CRPC, most conflicts may be waived by the potentially adversely affected client, but only after that client is fully informed of the circumstances giving rise to the potential conflict(s). Under the CPRC, Rule 3-600, the City, as a municipal corporation, is “the client” acting through its highest authorized officer, employee, body, or constituent overseeing the particular matter. Depending upon the matter, this will be the City Council (Council) as the legislative body of the City. See San Diego Charter, Art. III. The Council may delegate its waiver authority as appropriate under this Policy. PURPOSE: The purpose of this Policy is to provide a delegation and notification procedure for potential conflicts of interest that concern matters for which the City Attorney has determined Council to be “the client” under the CRPC, Rule 3-600. Further, it provides guidance for when conflicts may be waived. POLICY: Where waiver of conflicts of interest is not already addressed in an applicable attorney services agreement, waivers may be granted if (1) waiver of the conflict does not pose a risk of detrimental impact to the City and (2) the conflicted attorney, by virtue of his or her representation of the City, obtained no confidential information that is material to the matter. If the conflicted attorney works at a law firm, there must also be appropriate screening measures in place to protect against sharing of confidential information obtained from the City. PROCEDURE: The City Attorney’s Office will promptly notify Council in writing of all requests for waiver where the City Attorney has determined that Council is the client under the CRPC, Rule 3-600. If the City Attorney’s Office receives requests from at least four Councilmembers within CP-[###]-[##] Page 1 of 2 CITY OF SAN DIEGO, CALIFORNIA COUNCIL POLICY CURRENT 10 days (or sooner if required), the City Attorney will process the sought waiver(s) of conflict of interest for consideration on the Council agenda. Once placed on the Council agenda, the Council will have the authority to consider and grant the requests consistent with the factors articulated in this Policy. For all other requests, the Mayor in consultation with the City Attorney is authorized to consider and grant the request(s) consistent with the factors articulated in this Policy. HISTORY: “Conflict of Interest Waivers” Adopted by Resolution __________________ CP-[###]-[##] Page 2 of 2 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT, THE CALIFORNIA CONSTITUTION, AND OTHER LAWS Exhibit “C” From: Donna Frye Subject: Re: Item 2 at Rules July 27 Re: Conflict of Interest Waiver Date: July 26, 2017 at 12:48:30 PM PDT To: gbraun@sandiego.gov, cityattorney@sandiego.gov Hi Gerry, Hope all is well. I wanted to bring to your attention an item that will be heard at the Rules Committee tomorrow. I have sent the following email to all the committee members and wanted to make sure Mara sees this before the meeting. Thanks, Donna I am writing in opposition to the proposed COUNCIL POLICY ON WAIVER OF CONFLICTS OF INTEREST UNDER CALIFORNIA RULES OF PROFESSIONAL CONDUCT that will be heard on July 27 at the Rules Committee as ITEM-2. According to the City Attorney’s Report, “The City of San Diego (City) occasionally receives requests to waive potential conflicts of interest under the California Rules of Professional Conduct (CRPC), Rule 3310(E).” Given that these requests are received occasionally, there is no reason that the authority to review and approve should be delegated. I am requesting that any and all conflict of interest waivers be heard by the full council and that the authority to do so not be delegated to the office of the mayor. The council as a legislative body represents the public and when you delegate your authority, the public’s right to know what our elected officials are doing and why you are doing it is also delegated. In other words, you are limiting our ability to participate and have shown no reason why this is necessary. Additionally, San Diego City Charter, Section 216.1 (b) (2) states that (emphasis mine): “A statute, court rule, or other authority, including those in effect on the effective date of this Section, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule or other authority adopted after the effective date of this Section that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” Therefore, if you decide to deny the public the opportunity to have full access to this process, you will need to adopt findings that show why this proposed policy (that limits public access and participation) is in compliance with the City Charter. I request that you amend the proposed policy to ensure that all conflict of interest waivers are heard by the full city council so the public can participate and remain informed. Please feel free to contact me with any questions. Thank you, Donna Frye From: Donna Frye Subject: Request to discuss Conflict of Interest Waiver Policy by August 30 Date: August 25, 2017 at 4:45:39 PM PDT To: Mara Elliott August 25, 2017 Dear Mara, On July 26, 2017, I sent you and your chief of staff an email regarding my concerns with the Waiver of Conflict of Interest policy being proposed by your office. I was specifically concerned that it is in conflict with the San Diego City Charter, Section 216.1 (b) (2). (A copy is included at the end of this email.) I received no acknowledgment of my email, but know that it was received based upon comments by your staff at the August 1, 2017 City Council meeting. Specifically, your staff responded to a question from a council member about Charter Section 216.1 (b) (2) and whether the policy “put us in conflict with the charter?” Your staff responded that: “We did receive an email suggesting there was an issue with charter section 216 and public access requirements …” and “our analysis is that section is not applicable to this proposed action. Whatever records would be available now would be continue to be available under the counsel policy if adopted. So we don't see a legal issue with public access required findings are provided for in that section.” I do not agree with that analysis and believe that the council’s adoption of a policy that eliminates public access to the deliberations concerning conflict of interest waivers violates the City Charter and the California Constitution, Article I, Section 3. The policy allows future waivers on the City’s behalf, but there are no findings stating the interest to be protected by such delegation and the need for that interest. The public has a right to hear why a given waiver is justified and this right would be satisfied by public notice and deliberation of the issues involved. I am requesting that you ask the City Council to reconsider the policy your office asked the council to adopt and ensure that all future conflict of interest waivers, whether approved by the mayor or council, be placed on the City Council agenda for a public hearing. I would prefer to find a solution to these matters by August 30, 2017 as opposed to initiating litigation to resolve them. I realize this is a short time frame, so I would request that you toll the statute of limitations so that we have have time to find a workable solution. Thank you, Donna Frye Hi Gerry, Hope all is well. I wanted to bring to your attention an item that will be heard at the Rules Committee tomorrow. I have sent the following email to all the committee members and wanted to make sure Mara sees this before the meeting. Thanks, Donna I am writing in opposition to the proposed COUNCIL POLICY ON WAIVER OF CONFLICTS OF INTEREST UNDER CALIFORNIA RULES OF PROFESSIONAL CONDUCT that will be heard on July 27 at the Rules Committee as ITEM-2. According to the City Attorney’s Report, “The City of San Diego (City) occasionally receives requests to waive potential conflicts of interest under the California Rules of Professional Conduct (CRPC), Rule 3310(E).” Given that these requests are received occasionally, there is no reason that the authority to review and approve should be delegated. I am requesting that any and all conflict of interest waivers be heard by the full council and that the authority to do so not be delegated to the office of the mayor. The council as a legislative body represents the public and when you delegate your authority, the public’s right to know what our elected officials are doing and why you are doing it is also delegated. In other words, you are limiting our ability to participate and have shown no reason why this is necessary. Additionally, San Diego City Charter, Section 216.1 (b) (2) states that (emphasis mine): “A statute, court rule, or other authority, including those in effect on the effective date of this Section, shall be broadly construed if it furthers the people’s right of access, and narrowly construed if it limits the right of access. A statute, court rule or other authority adopted after the effective date of this Section that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.” Therefore, if you decide to deny the public the opportunity to have full access to this process, you will need to adopt findings that show why this proposed policy (that limits public access and participation) is in compliance with the City Charter. I request that you amend the proposed policy to ensure that all conflict of interest waivers are heard by the full city council so the public can participate and remain informed. Please feel free to contact me with any questions. Thank you, Donna Frye From: "Elliott, Mara" Subject: Automatic reply: Request to discuss Conflict of Interest Waiver Policy by August 30 Date: August 25, 2017 at 4:45:42 PM PDT To: Donna Frye ??I am out of the office and will return on August 28, 2017. I will respond to your e-mail when I'm back in the office. From: "Elliott, Mara" Subject: RE: Request to discuss Conflict of Interest Waiver Policy by August 30 Date: August 29, 2017 at 12:17:37 PM PDT To: Donna Frye Donna, Thank you for speaking with me this afternoon. I think we discussed some good potential solutions. I’ll do some research on my end and circle back as soon as possible. In the meantime, the City agrees to toll the statute of limitations through October 31, 2017, so that we can continue to work together on this. Again, thank you, and take good care. Mara Mara W. Elliott San Diego City Attorney Office of the San Diego City Attorney 1200 Third Avenue, Suite 1620 San Diego, CA 92101 Bus.: 619.236.6220 E-mail: melliott@sandiego.gov PLEASE NOTE: This email is for the sole use of the intended recipient(s) and may contain information protected by the ATTORNEY-CLIENT PRIVILEGE and/or by the ATTORNEY WORK PRODUCT DOCTRINE. The contents of this email may include confidential and/or inside information and may be legally privileged or protected and should not be communicated to or relied upon by any person without express consent of the sender. If you are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, distribution, downloading, or copying of this communication is strictly prohibited and may be unlawful. If you have received this email in error, please immediately notify the sender by reply email, delete the original communication, and destroy all copies. From: Donna Frye Subject: Re: Request to discuss Conflict of Interest Waiver Policy by August 30 Date: August 29, 2017 at 12:23:11 PM PDT To: Mara Elliott Thank you so much Mara for agreeing to toll the statute of limitations until October 31, 2017. I appreciate your phone call and am available to help in any way. With gratitude, Donna From: Donna Frye Subject: Conflict of Interest Waiver policy Date: October 5, 2017 at 9:02:20 PM PDT To: Mara Elliott Hi Mara, I am emailing about the status of the policy regarding conflict of interest waivers. As you know, I am asking that the policy be changed to require all conflict of interest waivers to be placed on the city council agenda so the public can be kept informed and have an opportunity to participate. Please advise. Thank you, Donna From: "Elliott, Mara" Subject: Re: Conflict of Interest Waiver policy Date: October 5, 2017 at 9:15:05 PM PDT To: Donna Frye We have some options to present. I just haven't had time to write the letter yet. Mara From: Donna Frye Subject: Re: Conflict of Interest Waiver policy Date: October 6, 2017 at 7:38:29 AM PDT To: Mara Elliott Thanks Mara. Looking forward to a resolution. From: "Elliott, Mara" Subject: Options - Conflict of Interest Waiver Policy Date: October 12, 2017 at 3:57:23 PM PDT To: Donna Frye Hi Donna, Under the newly adopted policy, if a request for waiver falls within the Council’s purview, the City Attorney notifies all councilmembers of the request. Our office dockets the item for Council review if at least four councilmembers make that request within 10 days from the date we inform them of the waiver request. The 4-person memo is consistent with Rules of Council. If we do not receive a request for review, the Mayor may consider and approve the request following consultation with my office and application of the standards provided in the policy. To address the concern you’ve raised, we can supplement the process described above as follows: Option 1: We can post the conflict waiver request on the City Attorney’s website at the time the request is transmitted to the City Council. Members of the public could contact their councilmember, come to non-agenda public comment, or contact the City Attorney’s Office with concerns. Option 2: We can add a standing informational line item on the Council agenda for conflict of interest waiver requests that lists each request for waiver of items within the Council’s purview. Public comment can be taken. If the Council wishes to hear it, they can put the item on a future Council agenda for action. Option 3: Do both items 1 and 2. Look forward to hearing back. Mara Mara W. Elliott San Diego City Attorney Office of the San Diego City Attorney 1200 Third Avenue, Suite 1620 San Diego, CA 92101 Bus.: 619.236.6220 E-mail: melliott@sandiego.gov PLEASE NOTE: This email is for the sole use of the intended recipient(s) and may contain information protected by the ATTORNEY-CLIENT PRIVILEGE and/or by the ATTORNEY WORK PRODUCT DOCTRINE. The contents of this email may include confidential and/or inside information and may be legally privileged or protected and should not be communicated to or relied upon by any person without express consent of the sender. If you are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, distribution, downloading, or copying of this communication is strictly prohibited and may be unlawful. If you have received this email in error, please immediately notify the sender by reply email, delete the original communication, and destroy all copies. From: Donna Frye Subject: Re: Options - Conflict of Interest Waiver Policy Date: October 13, 2017 at 8:58:35 AM PDT To: Mara Elliott Good morning Mara, Thank you for getting this to me. I will review it and get back to you in the next few days. Happy Friday, Donna From: Donna Frye Subject: Re: Options - Conflict of Interest Waiver Policy Date: October 16, 2017 at 4:00:49 PM PDT To: Mara Elliott Dear Mara, I have reviewed the options and appreciate your willingness to resolve this. However, the proposed options do not ensure full public participation and require more work, time and energy than my proposal. Option 1 requires the public to find the conflict of interest waivers on the city attorney’s website, contact their councilmember or come to non-agenda public comment, or contact your office. Even then, there is no guarantee the item will ever be heard at a city council meeting. Option 2 allows public comment but there is no assurance the city council will hear the item on a regular agenda. It also allows the city council to make an affirmative decision to support the conflict of interest waivers without ever holding a noticed public meeting. Combining the options creates even more new processes and does not solve the underlying problem of lack of public participation and right to know what the elected officials are doing and why they are doing it. Additionally, based upon the city’s responses to my Public Records Act request for copies of all conflict of interest waivers for the last five years, there appears to be, at most, two waiver requests per year. Minimal time would be needed to place all conflict of interest waivers on the city council consent agenda and doing so would accomplish the objective of full public participation. Please consider again my proposal to simply amend the City Council Policy that was adopted August 1, 2017, to include docketing all conflict of interest waivers, both mayoral and those within the city council’s purview, on the city council consent agenda. This would allow the public to participate and make it much easier for all involved because it is a standard process to which everyone is accustomed. Thank you for your consideration and timely reply, Donna From: Donna Frye Subject: Second email re: Options - Conflict of Interest Waiver Policy Date: October 20, 2017 at 12:00:31 PM PDT To: Mara Elliott Hi Mara, I am resending this email that I sent to you on Monday. Please let me know that you have received it. Thanks, Donna Begin forwarded message: From: Donna Frye Subject: Re: Options - Conflict of Interest Waiver Policy Date: October 16, 2017 at 4:00:49 PM PDT To: Mara Elliott Dear Mara, I have reviewed the options and appreciate your willingness to resolve this. However, the proposed options do not ensure full public participation and require more work, time and energy than my proposal. Option 1 requires the public to find the conflict of interest waivers on the city attorney’s website, contact their councilmember or come to non-agenda public comment, or contact your office. Even then, there is no guarantee the item will ever be heard at a city council meeting. Option 2 allows public comment but there is no assurance the city council will hear the item on a regular agenda. It also allows the city council to make an affirmative decision to support the conflict of interest waivers without ever holding a noticed public meeting. Combining the options creates even more new processes and does not solve the underlying problem of lack of public participation and right to know what the elected officials are doing and why they are doing it. Additionally, based upon the city’s responses to my Public Records Act request for copies of all conflict of interest waivers for the last five years, there appears to be, at most, two waiver requests per year. Minimal time would be needed to place all conflict of interest waivers on the city council consent agenda and doing so would accomplish the objective of full public participation. Please consider again my proposal to simply amend the City Council Policy that was adopted August 1, 2017, to include docketing all conflict of interest waivers, both mayoral and those within the city council’s purview, on the city council consent agenda. This would allow the public to participate and make it much easier for all involved because it is a standard process to which everyone is accustomed. Thank you for your consideration and timely reply, Donna On Oct 12, 2017, at 3:57 PM, Elliott, Mara wrote: Hi Donna, Under the newly adopted policy, if a request for waiver falls within the Council’s purview, the City Attorney notifies all councilmembers of the request. Our office dockets the item for Council review if at least four councilmembers make that request within 10 days from the date we inform them of the waiver request. The 4-person memo is consistent with Rules of Council. If we do not receive a request for review, the Mayor may consider and approve the request following consultation with my office and application of the standards provided in the policy. To address the concern you’ve raised, we can supplement the process described above as follows: Option 1: We can post the conflict waiver request on the City Attorney’s website at the time the request is transmitted to the City Council. Members of the public could contact their councilmember, come to non-agenda public comment, or contact the City Attorney’s Office with concerns. Option 2: We can add a standing informational line item on the Council agenda for conflict of interest waiver requests that lists each request for waiver of items within the Council’s purview. Public comment can be taken. If the Council wishes to hear it, they can put the item on a future Council agenda for action. Option 3: Do both items 1 and 2. Look forward to hearing back. Mara Mara W. Elliott San Diego City Attorney Office of the San Diego City Attorney 1200 Third Avenue, Suite 1620 San Diego, CA 92101 Bus.: 619.236.6220 E-mail: melliott@sandiego.gov PLEASE NOTE: This email is for the sole use of the intended recipient(s) and may contain information protected by the ATTORNEY-CLIENT PRIVILEGE and/or by the ATTORNEY WORK PRODUCT DOCTRINE. The contents of this email may include confidential and/or inside information and may be legally privileged or protected and should not be communicated to or relied upon by any person without express consent of the sender. If you are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, distribution, downloading, or copying of this communication is strictly prohibited and may be unlawful. If you have received this email in error, please immediately notify the sender by reply email, delete the original communication, and destroy all copies. From: "Elliott, Mara" Subject: RE: Second email re: Options - Conflict of Interest Waiver Policy Date: October 21, 2017 at 4:30:52 PM PDT To: Donna Frye Donna, We are still vetting your email internally. Mara From: Donna Frye Subject: Re: Second email re: Options - Conflict of Interest Waiver Policy Date: October 21, 2017 at 5:28:09 PM PDT To: Mara Elliott Thanks Mara! From: Donna Frye Subject: Conflict of interest waivers tolling agreement Date: October 24, 2017 at 4:14:15 PM PDT To: Mara Elliott Hi Mara, I know you have your hands full with all that is going on so if it would help, we could extend the tolling agreement. Let me know please. Thanks, Donna FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT, THE CALIFORNIA CONSTITUTION, AND OTHER LAWS Exhibit “D” Office of The City Attorney City of San Diego MEMORANDUM DATE: June 11,2018 TO: Honorable Councilmembers FROM: City Attorney SUBJECT: Request to Waive Attorney Conflict of Interest The enclosed from Kimberly S. Oberrecht, Esq. of Horton, Oberrecht, Kirkpatrick & Martha dated June 6, 2018, requests the City waive an attorney conflict of interest pursuant to California Code of Professional Conduct, Rule 3-310 and states the basis for the waiver request. The City Attorney's Office has detennined that the City Council is the appropriate client to provide the waiver on this matter. As provided in Council Policy No. 000-34, please notify the City Attorney's Office within 10 days of the date of this memo if you request to hear this matter at a City Council meeting. Unless four Councilmembers request that this matter be heard at City Council, this waiver request will be provided to the Mayor to consider in consultation with the City Attorney's Office as provided in Council Policy No. 000-34. MARA W. ELLIOTT, City Attorney By~~ -- Deputy City Attorney KLM:jn Enclosure COSDPROD-000540 ---------, KIRKPATRICK & MARTHA 3847 TW£l.LPTH STREET "" Kimb~rly S. Obenecht Cheryl A.: Kirkpatrick R.l~RSIDE, CAUfiOR.'N!A 92$0 l ORANGE CO!JNTY OFFICE ATTORNEYS A1 LAW A PROFESSIONAL CORPORATION 225 BROADWAY, SUITE 2200 SAN DIEOO, CALIFORNIA 921 0! Richard H. Martha Erin E. Schroeder Michael P. Marchesini Fang-Chung Li 2 PARK l>LA.zA, SU11'E 440 IRVINE, CAUFolml.A 92614 T'EL.EPHON.B (949) 2S l·S J 00 FACSlMll.E (949) 251-5104 !ELEPHONE(619)232-ll83 F'ACSIMILE (619) 696·5719 ASSOCIATES NO)'{Tf1ERN CAL!FO'f!.N1'A OFFICE 980 NrNTH STREET, 16\"' FLOoR SACRAMENTO,CAL~OR}UA95814 ~ONE(916)449-9950 FACSIMILE (~16) 44~-9507 Karen L. Bilotti Eric M. Leen~lrT.S Sba.da N. Hilburn Courtney S. Becker Peter C.L Chen Michad S. Ayers Nathaniel J. Michels Edward M. Chavez Jonathan M. E~erg;er Danielle C. mcks \Vhimey J. Betts Dawn C. Nelms Alice S. Li Carolyn A. Mush Heidi K. Willlams Carey J. Eshelman Elise M. Czelusniak Kimberly L Marcus Danielle K. l...Hsure-Sopheak 'fi AAALEGALS Tina Hill Adrian Ziegler ElviaRamcs Kathryn Fig! Jordan Malav!lf Arturo Suarez VIA FACSIMILE & U.S. MAIL Kelly McGeehan, Esq. Deputy City Attorney Office of the San Diego City Attorney 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Fax: (619) 533~5856 Re: Cindy Gates, et al. vs. Aaron Blakely, et al. Our Clients Aaron Blakely and Lynda Crawford Date ofLoss : December 30, 2017 Jurisdiction San Diego County Superior Court Court Case No.: 37-2018-00017261-CU-PO~CTL Dear Ms. McGeehan: .--- This wrongful death lawsuit involves an automobile vs. motorcycle accident that occurred at or near the intersection of 19th and Broadway in downtown San Diego on December 30, 2017 at approximately 1:20 p.m. It is alleged that Decedent Adam Carmeli, who was driving hls 2012 Ducati Streetfi.ghter motorcycle, was struck by a vehicle driven by our client, Aaron Blakely, and subsequently died ftom his injuries. We also represent Lynda Crawford, who was the registered owner of the vehicle driven by Blakely, It is further alleged by the Plaintiffs that there are various dan~e:rous conditions relatin!:! to road construction :a.nd cle~ig:n rh:ilt may hsve contributed to the accid~nt. Therefore, the City of San :D1ego 1s also named as a Defendant in this matter. COSDPROD-000541 Attomey "';~e: Cindy Gates. et al. vs. Aaron Blakely. et al. June 6, 2018 ~ v; .1.'\.t::Hy lYli,;\Jt:elll:l.l.l, .c:sq., .l)Cpmy ~ny Page~·2~------------------------------------------------------POTENTIAL :PRESENT CONFLICT Liberty Mutual~ who is providing a defense to Aaron Blakely and Lynda Crawford pursuant to an insurance policy~ have requested that we handle the matter and defend Blakely and Crawford. The City of San Diego is also a Defendant. We would therefore be adverse to the City of San Diego, whotn we have represented in prior matters. At the time of the accident, Aaron Blakely was driving in the course of his employment for Coca-Cola. Coca-Cola is not yet a nam.ed party to the action, although it is anticipated they will be shortly. Coca.Colahas therefore retained its own attorneys and it is unknown whether Coca-Cola will tender its defense to Liberty Mutual once they are brought into the case. PRIOR REPRESENTATION QF THE CITY Our office has previously represented the City of San Diego in prior matters where the City_ has been indemnified tlu·cmgh various insurance policies. Below please find a list of prior litigated matte:rs wherein our office represented the City of San Diego. These matters have all resolved and are dismissed. ' 1. ' Peter Bridge vs. The City of San Diegq, San Diego Superior Court Case No. 37-201400027279CU-PO-CTL. This is a case in which Plaintiff allegedly slipped and fractured his ankle while crossing a cement spillway in the middle of a walking trail in Tierrasanta, 1 Plaintiffs theory was that the City of San Diego is liable because Treebeard Landscape, Inc., who had a maintenance contract with the City, used an inappropriate paint to paint over graffiti on the spillway, which made the spillway slippery. Treebeard Landscape's insurance carrier picked up the defense of the City under Treebeard 1s policy. The City signed a conflict waiver allowing us to represent it since our firm had previously been adverse to the City in other matters. This matter settled and the City was dismissed in 2016. 2. Gaither Allen Rosser. IV vs. Santaluz Maintenance Association, et al., San Diego Superior Court, Case No. 37-2014-00021566-CU-PO-CTL. Thi.s is a case where Plaintiff was involved in a motor vehicle collision at an intersection, wherein the driver of the vehicle that hit Plaintiff ran a red light. Plaintiff claimed that vegetation on one comer of the intersection interfered \V:ith his and the other driver's sightline and created a dangerous condition. Plaintiff claimed that the vegetation was on land ov.ned and/or controlled by the City of San Diego. The City was defended and indemnified under an insurance policy held by Treebeard Landscape~ who had a maintenance contract with the City. The City signed a conflict waiver allowing us to represent it since our finn had previously been adverse to the City in other matters. This matter settled and the City was dismissed in 2016. COSDPROD-000542 ro: Re: csq., Ueputy City Attorney Cindy Gates. et al. vs. Aaron Blakely, et al. K.elly M.cUeehan~ June6~2018 Page~.3------------------------------~----------------------3. Claire Rowland vs. City_of San Dierro, San Diego Superior Court> Case No. 37~201500000690-CU-PO~CTL. This is a case wherein Plaintiff, a minor, allegedly had her leg severely lacerated by a wrought .iron sprinkler head support while walking along a Cityowned and maintained area between condominium residences and a hillside. The City was defended and indemnified under an insurance policy held by Landscapes USA, Inc., the landscape contractor who served the subject area. The City signed a conflict waiver allowing llS to represent it since our firm had previously been adverse to the City in other matters. Thls matter settled and the City was dismissed in 2016. CURRENT REPRESENTATION OF THE CITY We do not currently represent the City of San Diego in any pending matters. HOW WE WILL GUARD AGAINST CONFLICt As mentioned previously, we do not currently represent the City of San Diego in any pending matters and therefore do not have any current active cases that pose a conflict. ,f\'1/e did previously represent the City of San Diego as discussed above and will keep any and all information about the City learned in those cases kept separately and confidentially and will not use any information learned from those cases. We are enclosing a Conflict Waiver for the City's consideration and signature. If the City approves, please return the signed document to us as soon as possible. Aaron Blakely and Lynda Crawford's response to the Complaint is due to be fired with Court by June 18, 2018. Therefore, we would appreciate an expedited decision from the City. Thank you for your assistance. KSO:njr Enclosure COSDPROD-000543 f>50 West C Street 15th Floor San Diego, CA 92101 !iil 619.233.4100 ti 619.23L4372 II' ill Sullivan Hilt~ sultivanhill.com Sultlvan Hill Lewin Roz & Engel A Professional Law Corporation !'imothy G. f:.arl (l" .. :.,;.i' · · .·· • .. \'R~8J~st)pf"@o:~nj'~~· y\rritte':1¢·ons~l1t tO._\tl.iai~€(P6tentl~l corifliors: of-lnteresf: ·::. • ,·I \ ··i~~. }\";,,/.-'··;. ',,•,• .•.:,• · : , : .• .-• ·•·.;_ G_e'_titJe,~~n_i~"· . ·--. ·.··.:.:.:.·. :•L.:·... ·.~-.;·::,- ... : · :··:· .. . .··'.~}••..1 •::- :··,; .... ~.~· .t.:~=.·::;.~;._:\... , =::~··<:':;·;,:...:. •:.·... ·.::.-:.:.·~_.}: t',• .:.:"r'· .~·:··.:..... ,_. :· ··. .·. ·.~·:.: .: : :.:·:.,. ,·_,,·r.·.. . : . :·::: ·-. . ·: · :.: .:..-'· : . .. . ~: ~ ~ We write to obtain th~ jnfqrmed, . writtE;Jn consent of Wermers Multi-Family Corporation ("Wermers") and The 'CifY':_of ·San· pi (the: 11 Ch~?Y' to 'cul•simultaneous representation of W.ermers and the City, and the_ir waiyer of any actual or potential· confficts of interest that ci:ilild arise from su·ch sirrniltaneovs·representatiori as· detailed· beiO\IIi:·:: ::;· ·.. . .~... · · . ego: . . ·. . . . .. r . . . ·. . . . . . . : .,.~·. :-.~ : ., :. ! Wermers and the c{tihave:been clie'nts of this 'firm for many ye'ars, · ·. · . Wermers has asked·us·to repr'esent it as insurarice.c.overage counsel only in regard to the claim of the City in the above~referenced case (the· "Werniers Case1');''' We ·will ·not- be representing Werrners as a party in the Werrners Case and we will not be dii·:ectly adverse to the City in the Wermers Case. ou·r role will be more limited:- to communicate-with cirle or"more of Wermers' insurers about coverage·issu~s arisin.g·out of the·Wermers Case: • · We are currEmtly representing the City in litigation known as Ganley v. The City of San Diego; San Dieg~ Superi.or .99.ur.t 9.ase No. 37~2016~qoqoo261-~U-OE-CTL (the "Ganley Case"). The Ganley Case ·relates: to· alleged discrimination· arising out of survivor benefits in the City's define.d-benefit pension plan. We have previously represented the City ln other litigation predicated on claims identicaf to those alleged in the· Ganley Case. \·. · > · · · ' ' : ' :, • '~ t • ' ' ~' :' . .• ; . ~ ' • :·, ,•: .... I.: ': ,• ', '·.' ."'; ' ' We believe we can represent Wermers In connection with the Insurance coverage Issues related to the Wermers Case while simultaneously representing the City in connection with the Ganley qq~_e withou~ .c91Y.IP.risin_g our dut.ie.s of loyalty, competence, zealous advocacy, and confideJ1ti Subject: Request to Waive Conflict of Interest Councilmetubers: Please see the attached memo related to a Request to Waive Con?ict of Interest received from Sulliven Hill at Gil9~533~5816. Ami/ta Anne Lonergen Principal Legal Secretary Of?ce of the City Attorney 1200 wi?hird Avenue, Suite 1100 San Diego, CA 92103 Tel: 6195336838 Fax: 6196336856 CONFIIDEWL This electronic mail message and may atteehmemte are intended oniy for the use of the named above end may contain information. that is privileged, oernfidentiel and exempt from. dieoloeure under applicable law. If you are not an. intended recipient, or the employee or agent for delivering this email to the intended recipient, you are hereby notified that any dietri'bution or copying of this; communication is strictly prohibited. If you received thie ewmeil in error, please immediately notify the sender by replying to this meet-sage or by telephone. Thank you. Office of The City Attorney City of San Diego MEMORANDUM DATE: August 25, 2017 TO: Honorable Councilmembers FROM: City Attorney SUB.JECT: Request to Waive Conflict ofinterest p~ \IJ2__ The enclosed from Sullivan Hill Levin Rez & Engel, dated June 21,2017 requests the City waive an attorney conflict of interest pursuant to California Code of Professional Conduct, Rule 3-310 and states the basis for the waiver request. The City Attorney's Office has determined that the City Council is the appropriate client to provide the waiver on this matter. As provided in Council Policy No. 000-34, please notify David J. Karlin, Senior Deputy Attorney at the City Attorney's Office within 10 days of the date of this memo if you request to hear this matter at a City Council meeting. Unless four Councilmembers request that this matter be beard at City Council, this waiver request will be provided to the Mayor to consider in consultation with the City Attorney's Oft1cc as provided in Council Policy No. 000-34. DJK:aml Doc. No.: 1567584 Enclosure COSDPROD-000556 f>50 West C Street 15th Floor San Diego, CA 92101 !iil 619.233.4100 ti 619.23L4372 II' ill Sullivan Hilt~ sultivanhill.com Sultlvan Hill Lewin Roz & Engel A Professional Law Corporation !'imothy G. f:.arl (l" .. :.,;.i' · · .·· • .. \'R~8J~st)pf"@o:~nj'~~· y\rritte':1¢·ons~l1t tO._\tl.iai~€(P6tentl~l corifliors: of-lnteresf: ·::. • ,·I \ ··i~~. }\";,,/.-'··;. ',,•,• .•.:,• · : , : .• .-• ·•·.;_ G_e'_titJe,~~n_i~"· . ·--. ·.··.:.:.:.·. :•L.:·... ·.~-.;·::,- ... : · :··:· .. . .··'.~}••..1 •::- :··,; .... ~.~· .t.:~=.·::;.~;._:\... , =::~··<:':;·;,:...:. •:.·... ·.::.-:.:.·~_.}: t',• .:.:"r'· .~·:··.:..... ,_. :· ··. .·. ·.~·:.: .: : :.:·:.,. ,·_,,·r.·.. . : . :·::: ·-. . ·: · :.: .:..-'· : . .. . ~: ~ ~ We write to obtain th~ jnfqrmed, . writtE;Jn consent of Wermers Multi-Family Corporation ("Wermers") and The 'CifY':_of ·San· pi (the: 11 Ch~?Y' to 'cul•simultaneous representation of W.ermers and the City, and the_ir waiyer of any actual or potential· confficts of interest that ci:ilild arise from su·ch sirrniltaneovs·representatiori as· detailed· beiO\IIi:·:: ::;· ·.. . .~... · · . ego: . . ·. . . . .. r . . . ·. . . . . . . : .,.~·. :-.~ : ., :. ! Wermers and the c{tihave:been clie'nts of this 'firm for many ye'ars, · ·. · . Wermers has asked·us·to repr'esent it as insurarice.c.overage counsel only in regard to the claim of the City in the above~referenced case (the· "Werniers Case1');''' We ·will ·not- be representing Werrners as a party in the Werrners Case and we will not be dii·:ectly adverse to the City in the Wermers Case. ou·r role will be more limited:- to communicate-with cirle or"more of Wermers' insurers about coverage·issu~s arisin.g·out of the·Wermers Case: • · We are currEmtly representing the City in litigation known as Ganley v. The City of San Diego; San Dieg~ Superi.or .99.ur.t 9.ase No. 37~2016~qoqoo261-~U-OE-CTL (the "Ganley Case"). The Ganley Case ·relates: to· alleged discrimination· arising out of survivor benefits in the City's define.d-benefit pension plan. We have previously represented the City ln other litigation predicated on claims identicaf to those alleged in the· Ganley Case. \·. · > · · · ' ' : ' :, • '~ t • ' ' ~' :' . .• ; . ~ ' • :·, ,•: .... I.: ': ,• ', '·.' ."'; ' ' We believe we can represent Wermers In connection with the Insurance coverage Issues related to the Wermers Case while simultaneously representing the City in connection with the Ganley qq~_e withou~ .c91Y.IP.risin_g our dut.ie.s of loyalty, competence, zealous advocacy, and confideJ1ti~:"!..:~·,- ..; .;::;~·.<:-·:;··:,:_..; '·;'.·... :::.~·.. ;~:~~-!·:.: 1\.~;.::~ l39ht1'6ni~n::.·r-: . \:·...... _,. trL.:·. :· .···::,._: .. :j:~~- ·~!::.·n~:i·.:u, ..<.'. ·:.~ :.::~~:·:, . . ~·:.!(rJ:.~ ~--~,~,f :·.;·:., ~ .:· ·. :::.-~·.:~:· ·: '. ·. ~-j ~;J~·:· i!:.. · .... • · ,. i . ··.:. :··:···· .;; ·.:.:· :',':.:.~· •,.•.':..\.· :,.,;~·:;.j,'· ''..'. ~~' . :·:: ;',. ~.·;.'. ·:.:: ~-!..:·: ;.~ '··~ ~ ..'f,'!::- :, .: ·...'' ... ·· ..... ·· We write to obtain the informed, writt~n consent of Werrners Multi~Family Corporation ("Werrners") and The 'Cit~<:of ·sa·n·· p,iego'·:,.(the: ~~~:fity1!)'·· fa: ·~t.N'•s'li:Ylultaneous representation of \f.Yermers !;11Jd the C!tY, an~ .~he.i,r walyer of any' actual o.r potential· coriflicts 'of interest that ob'Lild arise from S'U.Ch Simuitanao~fs·'representation· ·as' detailed• beiOW~ 1: :::(' ... V.: . . • ' ., ' : Wermens· and ' '' ' ,~ ' ' ' '' ' ' : : .' ' ' '' • ' ·' '!~i: '{' ', .~ the c(ty·: liavi:i(bee'n clle'nts :of this firm for many ye'£i'rs.· • i •; I I ' ' ·. · ·. Wermers has asl ; · ·. · . . : I' ' ' I '' 'j ' ' ' I ,1' ,, ' '~ 'fo• .; ;,,' ',~ ':! I •,'\• ,",;' I'' '' ~ J' : ' ' ; We .beii<-?Vp we can represent Wermers In connection with the Insurance coverage Issues related t6·the Werrners Case while simultaneously representing the City in connection with the Ganley qa,~,C:l. Wl\hol!t.cornr.ri~lt}g ou.r duties 9f loyalty, competence, zealous advocacy, and conflder)ti; Batten, Kelly ; Bry, Barbara  ; Bukalova, Dominika ; Cate, Chris ; Chase,  Molly ; Clampett, Ian ; Councilmember Myrtle Cole  ; Councilmember Scott Sherman ; Fox, Jamie  ; Gates, Lara ; Gomez, Georgette ; Hauser,  James ; Jackson, Venessa ; Joes, Vicky ;  Kersey, Mark ; Knowles, Travis ; Lugo, Brenda  ; Pepin, Kimberly ; Slack, Jimmie ; Spillane,  Elizabeth ; Tetlow, Barrett ; Ward, Christopher  ; Zapf, Lorie   Cc: Mayor Kevin Faulconer ; Chadwick, Scott ; So, Kenneth    Subject: Memo re Waive Atty Conflict of Interest    Good Afternoon, Please see the attached Memorandum, by DCA Ken So re a Request to Waive Attorney Conflict of Interest. Thank you. 1 COSDPROD-000598 Jessie D. Fernandez  Legal Secretary to DCA’s Bret Bartolotta, Brant Will, Joan Dawson, Ken So, Sharon Spivak, and William Gersten  City of San Diego / City Attorney's Office  (619) 533-5874  jdfernandez@sandiego.gov    2 COSDPROD-000599 Office of The City Attorney City of San Diego MEMORANDUM DATE: December 15, 2017 TO: Honorable Councilmembers FROM: City Attorney SUBJECT: Request to Waive Attorney Conflict oflnterest The enclosed letter dated December 13, 2017, from attorney Michael Colantuono with the law finn of Colantuono, Highsmith & Whatley, P.C., requests that the City waive an attorney conflict of interest pursuant to California Rule of Professional Conduct, Rule No. 3-310. Mr. Colantuono's letter dated November 20, 2017, along with our Office's response letter dated December 8, 2017, set forth the basis for the waiver request. The City Attorney's Office has determined that the City Council is the appropriate client to provide the waiver on this matter. As provided in Council Policy No. 000-34, please notify me in writing within 10 days of the date of this memo if you request to hear this matter at a City Council meeting. Unless four Councilmembers request that this matter be heard at City Council, this waiver request will be provided to the Mayor to consider in consultation with the City Attorney's Office as provided in Council Policy No. 000-34. Sincerely yours, MARA W. ELLIOTT, City Attorney By Kenneth R. So Deputy City Attorney KRS:jdf Doc. No.: 1644704 Enclosures cc: Honorable Mayor Kevin Faulconer Scott Chadwick, Chief Operating Officer COSDPROD-000600 SANNA R. SINGER ASSISTANT CITY ATTORNEY KENNETH R. SO OFFICE OF CIVIL ADVISORY DIVISION THE CITY ATTORNEY 1200 THIRD A VENUE, SUITE 1620 CITY OF SAN DIEGO DEPUTY CITY ATTORNEY SAN DIEGO, CALIFORNIA 92101-4178 TELEPHONE (619) 236-6220 FAX (619) 236-7215 MARA W. ELLIOTT CITY ATTORNEY December 8, 2017 Michael Colantuono, Esq. Colantuono, Highsmith & Whatley PC 101 West Broadway, Ninth Floor San Diego, CA 92101 Re: Conflict Analysis involving Colantuono Highsmith & Whatley, PC Representing Citizens for a Better San Diego Dear Mr. Colantuono: Thank you for your email dated November 20, 2017, infonning us of your finn's intent to represent Citizens for a Better San Diego, a ballot measure committee and unincorporated association (Committee). According to your letter, the Committee appears to intend to propose an ordinance via citizen's initiative to impose a special tax to fund a Convention Center expansion, road improvements, and homeless initiatives. You ask whether we believe a fonnal conflict waiver is necessary. Based on your letter and our own records, it is our understanding that your finn currently represents the City of San Diego (City) in two post-redevelopment litigation matters which appear completely unrelated to your proposed representation of the Cmmnittee. Ifthis infonnation changes or is inaccurate, please let me know as it may affect our analysis of this situation. Given that the City is a current client of your finn, the firm owes a duty of undivided loyalty to the City and may not concurrently represent two clients who have adverse interests, even on unrelated matters. Western Sugar Coop. v. Archer-Daniels-Midland Co., 98 F. Supp. 3d 1074, 1081-82 (2015). As implicated in Rule of Professional Conduct 3-310, which proscribes the representation of adverse interests, the duty ofloyalty is concerned with the client's sense of trust and security, which are features essential to the effective functioning of the fiduciary relationship. Flatt v. Superior Court, 9 Cal. 4th 275, 282 (1994). The key issue is whether there are potential or actual adverse interests between the City and the Committee. See Cal. Rule of Prof. Conduct, Rule 3-310. An actual conflict of interest exists whenever their cmmnon lawyer's representation of one may be rendered less effective by reason of representation of the other. In re Jaeger, 213 B.R. 578, 584 (Bkrtcy. C.D. Cal. 1997). A potential conflict of interest exists if there is no present actual conflict of interest, but there is the possibility of actual conflict arising in the future, resulting Document Number: 1636532 COSDPROD-000601 Michael Colantuono, Esq. -2- December 8, 2017 from developments that have not yet occmTed or facts that have not yet become known. Id. If there is only a remote possibility of conflict, an attorney generally has no obligation to obtain infonned written consent of the affected clients. Id. Here, it would appear that there is at least a potential conflict of interest. As you are most likely aware, the Mayor's Office proposed a similar ballot measure earlier this year. That measure was on the City Council agenda of June 12, 2017 as Item 600. Ultimately, it was not acted upon by the City Council and was returned to City staff. While you may be correct that the City would be supportive of a special tax to fund Convention Center expansion, road improvements, and homeless initiatives as such a measure is akin to what the Mayor's Office had proposed, we believe that there is more than a remote possibility that the City through a City official could propose a similar, but somewhat different, ballot measure to impose a special tax than what the Committee proposes to do, especially given what has previously occurred. 1 If this were to take place, the two ballot measures, and thus the positions of the Committee and the City, would be adverse to each other as the measures could be competing against each other for voter approval. Furthern1ore, there is the possibility that your representation of the Conunittee could be adverse to the City because the City Clerk is responsible for detennining whether an initiative petition complies with applicable law. San Diego Municipal Code § 27.1021. While this adverse interest could conceivably be considered more remote, if for whatever reason, the City Clerk were to detennine that the Cmru11ittee' s initiative was insufficient, your finn may be called upon by the Cmrunittee to dispute this issue with the City. As you know, it is the responsibility of the potentially conflicted lawyer and law finn to determine whether there is a potential or actual adverse interest and what action needs to be taken by them to comply with all rules and regulations applicable to attorneys in California. See Rules of Professional Conduct, Rules 1-100, 1-110, and 3-310. Therefore, our opinion on this matter should not be relied upon to ensure your compliance with applicable ethical rules. With that said, we believe the more cautious approach is for you to seek a conflict waiver from the City. If you detennine that you would like to seek a conflict waiver from the City, please infonn us in writing and we will process your request in accordance with City Council Policy 000-34. 1 In addition to the Mayor's prior proposal in June 2017 for a tax increase, there is also another potential proposal that we are aware of. In the attached memorandum dated November 7, 2017, a City Councilmember requested that the City Council act to amend the City Charter to mandate growth in Transient Occupancy Tax revenues be dedicated for the next 20 years to fund homelessness services, shelters and permanent supportive housing solutions. Given the fact that the exact language of any proposed ballot measure (whether on behalf of the Committee or the City) has yet to be put together, it is not entirely clear exactly how any such ballot measures would impact each other, but there exists the potential that they could conflict. COSDPROD-000602 Michael Colantuono, Esq. -3- December 8, 2017 If you have any questions or would like to discuss futiher, please feel free to contact me at (619) 533-5814. . Sincerely yours, MARA W. ELLIOTT, City Attorney By Kenneth R. So Deputy City Attorney KRS:jdf Attachment COSDPROD-000603 COUNCILMEMBER DAVID ALVAREZ City of San Diego Eighth District MEMORANDUM DATE: November 7, 2017 TO': Honorable Council President Myrtle Cole FROM: Councilmember David Alvarez SUBJECT: Dedicated Funding Source for Homeless Services The City of San Diego is in the midst of a terrible homelessness crisis. To date, every proposal brought ~~~~~forward,-from~industriaHentsio~campgrounds~have~been~Jargely-ineffective:;---lds-abundantly-clearihat~~-~----; the most effective way to address homelessness is to have an ample supply of permanent supportive housing available for families and individuals that are close to or actually experiencing homelessness. While the lack ofsecure funding for services is concerning, it is the lack of funding for housing that is especiaJ!y glaring. I am requesting a City Charter amendment mandating that growth in Transient Occupancy Tax revenues be dedicated for the next 20 years to fund homelessness services, shelters, and permanent supportive housing solutions be placed on the Rules Committee agenda that will discuss 2018 ballot measures. The City has an obligation to ensure certain levels of public safety and health by not only preventing the current crisis from growing, but also by taking meaningful steps to proactively curb the number of individuals and families living on the streets. According to the San Diego Regional Task Force on the Homeless annual Point-In-Time Count, the population of homeless individuals has grown throughout the City, from 5,093 in 2016 to 5,619 in 2017, as well as a 34% increase in chronically homeless in the City since 2016. Growth ofthis magnitude heightens the potential for unsanitary conditions and the spread of infectious diseases. The Hepatitis A crisis the City is currently responding to likely could have been averted if the City had an effective permanent supportive housing program that quickly 1natched homeless individuals and families with services and housing in place. Critical services that can help prevent individuals from experiencing homelessness include mental health treatment, health care, dmg and alcohol treatment, education and job training. COSDPROD-000604 Thank you for your attention to this matter. Your timely response is greatly appreciated. CC: Honorable City Councilmembers Honorable City Attorney Mara Elliott Andrea Tevlin, Independent Budget Analyst ··--··-·--- COSDPROD-000605 THE CITY OF SAN DIEGO MEMORANDUM DATE: November 8, 2017 is,a Be~n R. o~mm 'ttee Consultant TO: Ut))c abet1l FROM: SUBJECT: alan , t "erk . Ballot Proposals for Committee Review Attached is a ballot proposal filed in my office pursuant to Council Policy 000-21 for the submission of ballot proposals to be reviewed by the Committee for possible placement on the ballot. Date Filed November 8,2017 Topic Dedicated Funding Source for Homeless Services Proponent Councilmember David Alvarez The Clerk's Office has established January 2, 2018 as the deadline for submitting such ballot proposals for the June 5, 2018 ballot, and anticipates that the Committee will review the proposals at its January 10, 2018 meeting. Ballot proposals which are referred for 2nd Committee review and to the full City Council will be listed under Public Notice on the Council Docket of January 22, 2018, and docketed for consideration between February 12, 2018 through March 6, 2018. EM/cs cc: Erin Demorest, Director of Legislative Affairs Sharon Spivak, Deputy City Attorney COSDPROD-000606 790 E. Colorado Boulevard, Suite 850 Pasadena, CA 91101-2109 Voice (213) 542-5700 Fax (213) 542-5710 COLANTUONO HIGHSMITH WHATLEY, PC Michael G. Colantuono (530) 432-7359 MColantuono@chwlaw.us December 13, 2017 VIAE-MAIL AND U.S. MAIL Kenneth R. So, Esq. Deputy City Attorney City of San Diego 1200 Third Avenue, Suite 1620 San Diego, CA 921 01-6220 Re: Request for Consent to Simultaneous Representation of the City and Yes for a Better San Diego Dear Mr. So: I reply to your letter of December 8, which I received by email on December 11th. As you invited, I write to request the City of San Diego's consent to our representation of Yes for a Better San Diego, an unincorporated association and ballot measure committee that will soon propose an initiative ordinance of the City to impose a hotel bed tax to fund a Convention Center expansion, homeless services, and road maintenance services. The measure creates resources for City programs and I believe aligns with the City's goals. It is in the City's interest that it be well drafted and legally defensible. Nor do we represent your Mayor, City Council or elections official and therefore there is little risk our work will interfere with our professional judgment in the post-redevelopment and municipal finance matters for which the City has retained us. If you need any additional information to handle this request, please let me know. Very truly yours, ichael G. Colantuono MGC:mgc COSDPROD-000607 I COLANTUONO 790 E. Colomdo Boulevard, Suite 850 Pasadena, CA 91101-2109 Voice (213) 542-5700 Fax (213) 542-5710 HIGHSMITH WHATLEY, PC Michael G. Colantuono (530) 432-7359 MCohmtuono@chwlaw.us Our File No. 10000.0191 November 20, 2017 VIA ELECTRONIC AND U.S. MAIL Mara W. Elliott, City Attorney City of San Diego 1200 3rd Avenue, Ste. 1620 San Diego, CA 92101 Re: Representation of Yes for a Better San Diego Dear Mara: As you know, our firm represents the City, along with several other San Diego County cities, in two post-redevelopment disputes. We have previously assisted the City in litigation involving assessment revenues. Due to our pre-existing relationships with the San Diego Tourism Marketing District Corporation, the San Diego LAFCO, the San Diego County Water Authority, and other cities in County, we have limited our relationship with the City to those matters and the City has consented to our doing so. I write to disclose a further proposed client relationship. Citizens for a Better San Diego, a ballot measure committee and unincorporated association ("the Committee"), has asked us to represent it with respect to a proposed initiative ordinance of the City to impose a special tax to fund a Convention Center expansion, road improvements, and homeless initiatives. Because we understand the proposal to fund programs and services the City supports, we see no legal adversity here that would require a formal written consent of the City to our taking this project on. We have not represented the City's election official, who will have ministerial responsibilities for the measure, as will the Council. If you view this differently and believe formal consents are necessary, please let . me know and I will prepare requests to the City and the Committee. 187358.1 COSDPROD-000608 Mara W. Elliott November 20, 2017 Page2 Thank you for your consideration and for the privilege of representing the City. Very truly~ ~ Michael G. Colantuono MGC:mgc I I' I I COSDPROD-000609 COLANTUONO 790 E. Colomdo Boulevard, Suite 850 Pasadena, CA 91101-2109 Voice (213) 542-5700 Fax (213) 542-5710 HIGHSMITH WHATLEY, PC Michael G. Colantuono (530) 432-7359 MCohmtuono@chwlaw.us Our File No. 10000.0191 November 20, 2017 VIA ELECTRONIC AND U.S. MAIL Mara W. Elliott, City Attorney City of San Diego 1200 3rd Avenue, Ste. 1620 San Diego, CA 92101 Re: Representation of Yes for a Better San Diego Dear Mara: As you know, our firm represents the City, along with several other San Diego County cities, in two post-redevelopment disputes. We have previously assisted the City in litigation involving assessment revenues. Due to our pre-existing relationships with the San Diego Tourism Marketing District Corporation, the San Diego LAFCO, the San Diego County Water Authority, and other cities in County, we have limited our relationship with the City to those matters and the City has consented to our doing so. I write to disclose a further proposed client relationship. Citizens for a Better San Diego, a ballot measure committee and unincorporated association ("the Committee"), has asked us to represent it with respect to a proposed initiative ordinance of the City to impose a special tax to fund a Convention Center expansion, road improvements, and homeless initiatives. Because we understand the proposal to fund programs and services the City supports, we see no legal adversity here that would require a formal written consent of the City to our taking this project on. We have not represented the City's election official, who will have ministerial responsibilities for the measure, as will the Council. If you view this differently and believe formal consents are necessary, please let . me know and I will prepare requests to the City and the Committee. 187358.1 COSDPROD-000610 Mara W. Elliott November 20, 2017 Page2 Thank you for your consideration and for the privilege of representing the City. Very truly~ ~ Michael G. Colantuono MGC:mgc I I' I I COSDPROD-000611 790 E. Colorado Boulevard, Suite 850 Pasadena, CA 91101-2109 Voice (213) 542-5700 Fax (213) 542-5710 COLANTUONO HIGHSMITH WHATLEY, PC Michael G. Colantuono (530) 432-7359 MColantuono@chwlaw.us December 13, 2017 VIAE-MAIL AND U.S. MAIL Kenneth R. So, Esq. Deputy City Attorney City of San Diego 1200 Third Avenue, Suite 1620 San Diego, CA 921 01-6220 Re: Request for Consent to Simultaneous Representation of the City and Yes for a Better San Diego Dear Mr. So: I reply to your letter of December 8, which I received by email on December 11th. As you invited, I write to request the City of San Diego's consent to our representation of Yes for a Better San Diego, an unincorporated association and ballot measure committee that will soon propose an initiative ordinance of the City to impose a hotel bed tax to fund a Convention Center expansion, homeless services, and road maintenance services. The measure creates resources for City programs and I believe aligns with the City's goals. It is in the City's interest that it be well drafted and legally defensible. Nor do we represent your Mayor, City Council or elections official and therefore there is little risk our work will interfere with our professional judgment in the post-redevelopment and municipal finance matters for which the City has retained us. If you need any additional information to handle this request, please let me know. Very truly yours, ichael G. Colantuono MGC:mgc COSDPROD-000612 I From: Lonergan, Anna Sent: Thursday, December 14, 2017 1:26 PM To: Hoy, Cheri Subject: RE: Soccer City - Conflict of Interest Hi Cheri, Appreciate the response. ?Fl/1511,4135, Ami/La From: Hoy, Cheri Sent: Thursday, December 14, 2017 1:23 PM To: Lonergan, Anna Subject: RE: Soccer City - Conflict of Interest Hello Anna, Thank you, i will check into this and someone from our office will get back to you. Kind Regards, Cheri Cheri Hoy Executive Assistant to the Mayor The City of Mayor Kevin L. Faulconer 619?236?7776 ndieeosaov/ mayor DISCLOSURE: This email is public information. Correspondence to and from this email address is recorded and may be viewed by third parties and the public upon request. From: Lonergan, Anna Sent: Thursday, December 14, 2017 10:22 AM To: Hoy, Cheri Subject: Soccer City- Conflict of Interest Hi Cheri, We sent the attached memo to the Mayor on November 1() 111 last. Can you provide ute with an npdate please? Anna Lonergan Principal Legal Secretary Office of the City Attorney 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Tel: 61 3-5838 Fax: 619-533-5856 CONFIDENTIAL COMMUNICAl'ION 'l'his electronic mail message and any attachments are i.nt.ended only for the use of the addressee( s) named above and may cont.ain information that is privileged, confidential and exempt from disclosure under appllcablo law. If you are not an intended recipient, or the employee or agent, :responsible for deliVC!Ping this e-mail to t.ho int.ended Peoipient;, you a:re hoJ.'oby notified that any dissomina;ti.on., distribution or copying of this communication is strictly prohibited. If you received this e-mail message in error, please immediately notify the sender by Pep lying to this message o:r by telephone. Thank you. 2 COSDPROD-000614 ---------, KIRKPATRICK & MARTHA 3847 TW£l.LPTH STREET "" Kimb~rly S. Obenecht Cheryl A.: Kirkpatrick R.l~RSIDE, CAUfiOR.'N!A 92$0 l ORANGE CO!JNTY OFFICE ATTORNEYS A1 LAW A PROFESSIONAL CORPORATION 225 BROADWAY, SUITE 2200 SAN DIEOO, CALIFORNIA 921 0! Richard H. Martha Erin E. Schroeder Michael P. Marchesini Fang-Chung Li 2 PARK l>LA.zA, SU11'E 440 IRVINE, CAUFolml.A 92614 T'EL.EPHON.B (949) 2S l·S J 00 FACSlMll.E (949) 251-5104 !ELEPHONE(619)232-ll83 F'ACSIMILE (619) 696·5719 ASSOCIATES NO)'{Tf1ERN CAL!FO'f!.N1'A OFFICE 980 NrNTH STREET, 16\"' FLOoR SACRAMENTO,CAL~OR}UA95814 ~ONE(916)449-9950 FACSIMILE (~16) 44~-9507 Karen L. Bilotti Eric M. Leen~lrT.S Sba.da N. Hilburn Courtney S. Becker Peter C.L Chen Michad S. Ayers Nathaniel J. Michels Edward M. Chavez Jonathan M. E~erg;er Danielle C. mcks \Vhimey J. Betts Dawn C. Nelms Alice S. Li Carolyn A. Mush Heidi K. Willlams Carey J. Eshelman Elise M. Czelusniak Kimberly L Marcus Danielle K. l...Hsure-Sopheak 'fi AAALEGALS Tina Hill Adrian Ziegler ElviaRamcs Kathryn Fig! Jordan Malav!lf Arturo Suarez VIA FACSIMILE & U.S. MAIL Kelly McGeehan, Esq. Deputy City Attorney Office of the San Diego City Attorney 1200 Third Avenue, Suite 1100 San Diego, CA 92101 Fax: (619) 533~5856 Re: Cindy Gates, et al. vs. Aaron Blakely, et al. Our Clients Aaron Blakely and Lynda Crawford Date ofLoss : December 30, 2017 Jurisdiction San Diego County Superior Court Court Case No.: 37-2018-00017261-CU-PO~CTL Dear Ms. McGeehan: .--- This wrongful death lawsuit involves an automobile vs. motorcycle accident that occurred at or near the intersection of 19th and Broadway in downtown San Diego on December 30, 2017 at approximately 1:20 p.m. It is alleged that Decedent Adam Carmeli, who was driving hls 2012 Ducati Streetfi.ghter motorcycle, was struck by a vehicle driven by our client, Aaron Blakely, and subsequently died ftom his injuries. We also represent Lynda Crawford, who was the registered owner of the vehicle driven by Blakely, It is further alleged by the Plaintiffs that there are various dan~e:rous conditions relatin!:! to road construction :a.nd cle~ig:n rh:ilt may hsve contributed to the accid~nt. Therefore, the City of San :D1ego 1s also named as a Defendant in this matter. COSDPROD-000615 Attomey "';~e: Cindy Gates. et al. vs. Aaron Blakely. et al. June 6, 2018 ~ v; .1.'\.t::Hy lYli,;\Jt:elll:l.l.l, .c:sq., .l)Cpmy ~ny Page~·2~------------------------------------------------------POTENTIAL :PRESENT CONFLICT Liberty Mutual~ who is providing a defense to Aaron Blakely and Lynda Crawford pursuant to an insurance policy~ have requested that we handle the matter and defend Blakely and Crawford. The City of San Diego is also a Defendant. We would therefore be adverse to the City of San Diego, whotn we have represented in prior matters. At the time of the accident, Aaron Blakely was driving in the course of his employment for Coca-Cola. Coca-Cola is not yet a nam.ed party to the action, although it is anticipated they will be shortly. Coca.Colahas therefore retained its own attorneys and it is unknown whether Coca-Cola will tender its defense to Liberty Mutual once they are brought into the case. PRIOR REPRESENTATION QF THE CITY Our office has previously represented the City of San Diego in prior matters where the City_ has been indemnified tlu·cmgh various insurance policies. Below please find a list of prior litigated matte:rs wherein our office represented the City of San Diego. These matters have all resolved and are dismissed. ' 1. ' Peter Bridge vs. The City of San Diegq, San Diego Superior Court Case No. 37-201400027279CU-PO-CTL. This is a case in which Plaintiff allegedly slipped and fractured his ankle while crossing a cement spillway in the middle of a walking trail in Tierrasanta, 1 Plaintiffs theory was that the City of San Diego is liable because Treebeard Landscape, Inc., who had a maintenance contract with the City, used an inappropriate paint to paint over graffiti on the spillway, which made the spillway slippery. Treebeard Landscape's insurance carrier picked up the defense of the City under Treebeard 1s policy. The City signed a conflict waiver allowing us to represent it since our firm had previously been adverse to the City in other matters. This matter settled and the City was dismissed in 2016. 2. Gaither Allen Rosser. IV vs. Santaluz Maintenance Association, et al., San Diego Superior Court, Case No. 37-2014-00021566-CU-PO-CTL. Thi.s is a case where Plaintiff was involved in a motor vehicle collision at an intersection, wherein the driver of the vehicle that hit Plaintiff ran a red light. Plaintiff claimed that vegetation on one comer of the intersection interfered \V:ith his and the other driver's sightline and created a dangerous condition. Plaintiff claimed that the vegetation was on land ov.ned and/or controlled by the City of San Diego. The City was defended and indemnified under an insurance policy held by Treebeard Landscape~ who had a maintenance contract with the City. The City signed a conflict waiver allowing us to represent it since our finn had previously been adverse to the City in other matters. This matter settled and the City was dismissed in 2016. COSDPROD-000616 ro: Re: csq., Ueputy City Attorney Cindy Gates. et al. vs. Aaron Blakely, et al. K.elly M.cUeehan~ June6~2018 Page~.3------------------------------~----------------------3. Claire Rowland vs. City_of San Dierro, San Diego Superior Court> Case No. 37~201500000690-CU-PO~CTL. This is a case wherein Plaintiff, a minor, allegedly had her leg severely lacerated by a wrought .iron sprinkler head support while walking along a Cityowned and maintained area between condominium residences and a hillside. The City was defended and indemnified under an insurance policy held by Landscapes USA, Inc., the landscape contractor who served the subject area. The City signed a conflict waiver allowing llS to represent it since our firm had previously been adverse to the City in other matters. Thls matter settled and the City was dismissed in 2016. CURRENT REPRESENTATION OF THE CITY We do not currently represent the City of San Diego in any pending matters. HOW WE WILL GUARD AGAINST CONFLICt As mentioned previously, we do not currently represent the City of San Diego in any pending matters and therefore do not have any current active cases that pose a conflict. ,f\'1/e did previously represent the City of San Diego as discussed above and will keep any and all information about the City learned in those cases kept separately and confidentially and will not use any information learned from those cases. We are enclosing a Conflict Waiver for the City's consideration and signature. If the City approves, please return the signed document to us as soon as possible. Aaron Blakely and Lynda Crawford's response to the Complaint is due to be fired with Court by June 18, 2018. Therefore, we would appreciate an expedited decision from the City. Thank you for your assistance. KSO:njr Enclosure COSDPROD-000617 WAIVER OF CONFLICT OF INTEREST This agreement will be referred to as the ?Waiver?. The City of San Diego (?hereinafter ?City?) understands that Horton, Oberrecht, Kirkpatrick Martha (hereinafter ?the Horton Firm?) has been retained to represent the interests of The City of San Diego in a current litigation entitled Claire Rowland, et al. vs. City of San Diego, San Diego Superior Court, Case No. 37-2015- The City understands and has been informed that a con?ict of interest exists because Partner Kimberly S. Oberrecht of the Horton Firm also represents a party adverse to The City of San Diego in a current case entitled Holly Jean Richardson vs. The City of San DiegoLSan Diego Superior Court, Case No. The Horton Firm represents the interests of the City in two other current litigations, entitled Peter Bridge vs. The City of San Diego, San Diego Superior Court, Case No. 37-2014-00027279- and Gaither Allen Rosser, IV vs. Santaluz Maintenance Association, et al., San Diego Superior Court, Case No. 37-2014-00021566-CU-PO-CTL. The Horton Firm also represented clients who have been sued by the City and/or were adverse to the City. The City is informed California State Law requires that an attorney not disclose confidential communications or secrets of a client. The City is further informed that the Rules of Professional Conduct of the State Bar of California require the City?s informed written consent before the Horton firm can represent them in the above-described matter. The Horton Firm has disclosed to the City that there is a conflict of interest by the current representation. After informed consent, the City elected and agreed to waive the con?ict of interest to allow for the Horton Firrn?s representation them in the above-described matter. execution of this Waiver, the City expressly acknowledge nd that they have elected to be represented by the Horton irrn for the purpose of representation escribed herein. Therefore, the City expressly agrees to waive the con?ict of interest which exists between the representation of the City by and through the Horton Firm. The City agrees and elects of their own free will after informed consent has been provided to be represented by the Horton Law Firm in the above-described lawsuit. The City elected to continue with the retention the Horton Firm to defend their interests and to represent them in the above-described lawsuit. In addition to their con?ict waiver in the above?described lawsuit, the City expressly agrees to waive con?icts in future cases wherein the Horton Firm may be adverse to the City andlor may be required to file . toss-actions and/or claims against the City. Date: a! CITY OF SAN DIEGO I Daniel Bamberg, Esq. Name of Person Signing aw: Wei. We, . . 3-,,ch 332' 3mm 3.43-- .. City Attorney Title am a a 2015 Waiver - City of WAIVER OF CONFLICT OF This agreement will be referred to as the ?Waiver?. The City of San Diego (?hereinafter ?City?) understands that Horton, Oberrecht, Kirkpatrick Martha (hereinafter ?the Horton Firm?) has been retained to represent the interests of the City in a current litigation entitled Peter Bridge vs. The City of San Diego, San Diego Superior Court, Case No. The City understands and has been informed that a con?ict of interest exists because the Horton Firm represents and has represented the interests of clients adverse to the City in current litigation and multiple past lawsuits. The Horton Firm has also represented clients who have been sued by the City and/or were adverse to the City. The City is informed California State Law requires that an attorney not disclose con?dential communications or secrets of a client. The City is further informed that the Rules of Professional Conduct of the State Bar of California require the City?s informed written consent before the Horton ?rm can represent them in the above-described matter. The Horton Firm has disclosed to the City that there is a conflict of interest by the current representation. After informed consent, the City elected and agreed to waive the conflict of interest to allow for the Horton Firm?s representation of them in the above-described matter. execution of this Waiver, the City expressly acknowledges? and that they have elected to be represented by the Horton Firm for the purpose of representation described herein. Therefore, the City expressly agrees to waive the con?ict of interest which exists between the representation of the City by and through the Horton Firm. The City agrees and elects of their own free will after informed consent has been provided to be represented by the Horton Law Firm in the above~described lawsuit. 1e City elected to continue with the retention the arm to 'en tieir interests and to represent them in the above-described lawsuitthe cribe lawsuit, the City expressly agrees to waive con?icts 1n futule cases?eiein-t T?Wito Firearm abe adverse to the City and/or may be required to a Ior?t?ilaims against Date: CITY OF SAN DIEGO Emu Bomw??f/?I Willie's/I? Title WAIVER OF CONFLICT OF INTEREST This agreement will be referred to as the "Waiver". The City of San Diego ("hereinafter "City") understands thatthe lawfmn ofHorton, Ober1·echt, Kirkpatrick & Martha, APC (hereinafter "the Horton J;lirm") has beenretai11ed to represent the interests ofAaron Blakely and Lynda Crawford in a current litigation entitled Cindy Gates, et al. vs. Aaron Blakely, et al., SanDi ego Superior Com1, Case No. 37~20 15-00000690-CU-PO-CTL. The City ofSanDiego is also a named Defendant in this matter and is being represented by the Office of the San Diego City Attomey. The City understands and has been informed that a conflict of interest may exist due· to the Horton Firm's prior representation of The City of San Diego in past cases that have since resolved. Those case.~ were. entitled.£.*.r Bridge vs. Thp City.of. San Diegu,· s~m Dieg" Superior Court, Case · No .. 37-2014-00027279-CU-PO-CTL: Gaither Allen Rosser. IV vs. Santaluz Maintenance Association, et al., San Diego Superior Court, Case No. 37-2014-000215 66-CU-PO-CTL, and Claire Rowlm1d vs. City of San Diego, San Diego Superior Court, Case No. 37-2015-00000690-CU-POCTL. The Horton Firm has also represented clients who have been sued by the City and/or were adverse to the City. The City is informed California State Law requires tlmt an attorney not disclose confidential communications or secrets of a client. The City is f·urther informed that the Rules of Professional Conduct of the State Bar of Califomia require the City's informed written consent before the Hmton fmn can represent them in the above-described matter. The Horton Fitm has disclosed to the City that there is a conflict of interest by the prior representation, although no current l'epresentation of the City exists. After informed consent, the City elected and agreed to waive the conflict of interest to allow for the Horton Firm's representation of defendants adverse to the City in the matter of Cindy Gates.Jlj_al. vs. Aaron Bla1cely, et al. By execution of this Waiver, the City expressly acknowledges they have been advised that they have elected to allow the Horton Firm to represent Aa1'0n B1alcely and Lynda Crawford for the purpose.ofrepresentation described herein. Therefore, the City expressly agrees to waive the conflict of interest which exists due to ptior representation of the City by and through the Hotion Firm. The City agrees and elects of their own fme .will after infotmed,.co.nsent ·has been provided to allow the Hatton Law Firm to be aclvel'Se to the City of San Diego irrthe matter of Cindy Gates, eta!. vs. Aaron Blakely. ei al. In addition to their conflict waiver in the case entitled Cindy Gates, et al. vs. Aaron Blakely, et al., the City expressly agrees to waive conflicts in future cases wherein the r:rorton Firm may be adverse to the City and/or may be required to file cross-actions and/or claims against the City. Title O:ICLli!NTSINn!ftllc\Con/llot Wnlvor. Clly orsn(3).wpd COSDPROD-000620 FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDATE UNDER THE CALIFORNIA PUBLIC RECORDS ACT, THE CALIFORNIA CONSTITUTION, AND OTHER LAWS Exhibit “E” 10/30/2017 NextRequest - Modern FOIA & Public Records Request Software Request #17-2042    CLOSED As of October 30, 2017, 11:39am Details I am trying to nd copies of documents for the Con ict of Interest Waivers that have been approved by the City in the past 5 years (2012 to 2017). I have been unable to locate them online and hope that you can assist me in locating them or providing copies to me. Received July 31, 2017 via web Departments City Attorney Documents Documents 17-2042 - 082417.pdf Documents PRA request #17-2042 -10/6/17.pdf Documents produced 9717 #17-2042.pdf Sta Point of Contact Nancy Shapiro Timeline Request Published Public October 9, 2017, 9:39am https://sandiego.nextrequest.com/requests/17-2042 1/2 10/30/2017 NextRequest - Modern FOIA & Public Records Request Software Request Closed Public 02a. Released - Redacted All responsive documents have been released except for portions redacted pursuant to: attorney-client privilege. October 6, 2017, 9:39am by Nancy Shapiro, Paralegal, O ce of the City Attorney Document(s) Released Documents PRA request #17-2042 -10/6/17.pdf Public October 6, 2017, 9:38am by Nancy Shapiro, Paralegal, O ce of the City Attorney Document(s) Released Documents produced 9717 #17-2042.pdf Public September 7, 2017, 2:00pm by Nancy Shapiro, Paralegal, O ce of the City Attorney Document(s) Released Documents 17-2042 - 082417.pdf Public August 24, 2017, 4:04pm by Catherine Morrison https://sandiego.nextrequest.com/requests/17-2042 2/2 Tuesd~t w/~fZorrlftot (R-2017-617 REV.) (COR. COPY) 3_1_1_1_6_6_ RESOLUTION NUMBER R-_ _ JUN 0-6 2017 DATE OF FINAL PAS SAGE - ----A RESOLUTION OF THE COUNCIL OF THE CITY OF SAN DIEGO AUTHORIZING THE MAYOR TO EXECUTE W ANERS OF POTENTIAL CONFLICTS OF INTEREST. ( WHEREAS, the City of San Diego (City) occasionally receives requests for waivers of potential conflicts of interest under the California Rules of Professional Conduct (CRPC); and WHEREAS, the City's historic practice has been for the Mayor and City Attorney to confer on and execute waiver requests without this practice being formally documented; and WHEREAS, the City has received requests from two law flrms requesting that the City waive potential conflicts of interest on three matters; and WHEREAS, CRPC, Rule 3-310 requires that the client give informed consent when its attorney or former attorney has a potential conflict of interest; and WHEREAS, the City received one request from the Procopio law flrm requesting a waiver on two matters because the former City Attorney is currently serving as "Of Counsel" for Procopio; and WHEREAS, the City is informed that the former City Attorney has not and will not participate in any matter of Procopio's that involves the City; and WHEREAS, the second law flnn requesting a waiver from the City is Kane, Ballmer & Berkman (K.BB) which formerly represented the City and the Redevelopment Agency in matters involving redevelopment and economic development; and WHEREAS, KBB seeks to represent a client in a conveyance ofland to the City which is completely separate from the matters on which KBB formerly represented the City and Redevelopment Agency; and -PAGE 1 OF 2- (R-2017-617 REV.) (COR. COPY) WHEREAS, the matters for which waivers are requested require informed consent from the City Council; and WHEREAS, neither the potential conflict of interest of Procopio or KBB pose a risk of detrimental impact to the City; and WHEREAS, this Resolution is not subject to Mayoral veto pursuant to City Charter section 280(a)(l); NOW, THEREFORE, BE IT RESOLVED, by the Council of the City of San Diego, including in its capacity as the Successor Agency to the former Redevelopment Agency, that the waiver of potential conflicts of interest as represented and requested by Procopio and KBB are given; and BE IT FURTHER RESOLVED, that the Mayor or his designee is authorized to execute the requested waivers on behalf of the City including in its capacity as the Successor Agency to the former Redevelopment Agency. MA.R.f.. W. ELLIOTT, City Attorney By Prescilla Dugard Chief Deputy City Attorney . PD:jvg:ccm:jdf 05/25/2017 05/31/2017 COR. COPY 06/16/2017 REV. Or .Dept: City Attorney Doc. No. 1511777 4 -PAGE 2 OF 2- JUN ·O 6 2017 Passed by the Council of The City of San Diego on , by the following vote: Councilmembers Yeas Nays Not Present BarbaraBry tJ D Lorie Zapf ,(!1 Chris Ward ,lZl D D D Myrtle Cole Z] D Mark Kersey e1 Scott Sherman D D D David Alvarez ~ Georgette Gomez ~ Chris Cate D D D D D D D 0 ;zr ,E1 D D Recused D D D D D D D D 0 JUN 06 2017 Date of final p a s s a g e - - - - - - - - (Please note: When a resolution is approved by the Mayor, the date of final passage is the date the approved resolution was returned to the Office of the City Clerk.) AUTHENTICATED BY: KEVIN L. FAULCONER Mayor of The City of San Diego, California. Office of the City Clerk, San Diego, California Resolution Number R- 311166 SANNA R, SINGER ASSISTANT CITY ATTORNEY CATHERINE C. MORRISON DEPUTY CITY ATTORNEY OFFICE OF CIVIL ADVISORY DIVISION THE CITY ATTORNEY 1200 THIRD AVENUE, SUITE 1620 SAN DIEGO, CALIFORNIA 92101-4178 CITY OF SAN DIEGO TELEPHONE (619) 236-6220 FAX (619) 236-7215 MARA W. ELLIOTT CITY ATTORNEY July 26, 2017 Robert G. Russell Jr. PROCOPIO 525 B Street, Suite 2200 San Diego, CA 92101 Attorney Client Conflict Waiver Request Dear: Mr. Russell:. Enclosed please find the City of San Diego's signed Waiver and Consent to Procopio's representation ofMetropolitan!SDPB Fifth Avenue LLC, CP Kelco U.S., Inc., and R.E Staite Engineering, Inc. This waiver is given pursuant to the facts as you set forth in your letter addressed to the City dated April 3, 2017. Please. feel free to contact me if you have any questions regarding this letter or the enclosed waiver. Sincerely yours, MARA W. ELLIOTT, City Attorney By ~~~ Catherine C. Morrison Deputy City Attorney CCM:jvg Attaclunent Document Nmnbtl!': 1548309 . WAIVER AND CONSENT On behalf of the City of San Diego, I consentto the representation of Metropolitan/SDPB Fifth Avenue LLC, CP Kelco U.S., Inc., and R.E. Staite Engineering, Inc. by Procopio, Cory, Hargreaves & Savitch LLP in the matters Identified in your letter to Mara W. Elliott, City Attorney of the City of San Diego, dated April3, 2017. The City of San Diego understands that the matters discussed In your letter are potentially adverse to the City of San Diego, notwithstanding the fact that former City Attorney Jan Goldsmith, who is now "Of Counsel" to Procopio, may have worked on said matters during his time as City Attorney. It Is understood and agreed that Procopio will establish an ethical screen o that J§J!l••®tfl'as' •It· will have no ~J·\1!/in Rez & Engel A Prokss:1ona! Uwv Corporation r~~(;F-:J{flSLt ;\~J.'\\f=··> ... :: ~~t~1 ~HY5 :J?1S d 619 March ·16, 2017 Ming K. Tom Tom VIII Enterprises, LP. i 524 Dorcas Street San Diego, CA 92110 Re: Walter C. Chung, Esq. Senior Deputy Attorney Office of the City Attorney City of San Diego 1200 Third Avenue San Diego, California 92101 wchung@sandlego. gov Sale of Land by Tom .to City of Sd ilt t~ fote',going docum- • ., true (;( oD)' (lwlll.nQ•W. ~'M<'piiiHO!b.~~ Which rwJOa, 0 ""w 11111: ••·••ud 011 itlt'Ormlltka and bclid. ulld lbo:lsoe mtmc~ I bd~c ''"""' 10 toe~. I "n (WI; of tho:: afS(Imrq• f.,. u I'Wt)' 10 tlllw11ction.. Sutb pnny is ~~~ from the COUIMY (If ;,fu!WilJ whm: sutll ..Ollie')' &lvc tll~t afilOc$, 11012 J olW:~ till~ •ft"llicat~t~oo f(, :o"(J 00 {1(;1.-J/ dtbal puny (crrtbu ~. I rom ld0f11t..d IOiloJ loctlcvc ltnd 1,m tbid \fi'OIIIl!l alle~t !Nttllt mutll:l!l •'"'od in tho: fc.n:j'nin& d«mno:mllt~: tfloo:. LM:cutodon .20 .u .Clllirol'fU. ''Da-;:;;;·•~;;@&'"'dwS•••'~·•---;;;;;;-'~~ Ty,..otPiilllNmc Siplii:R PROOf Of' SERVICE ·---·c/ . . ._.,.,.,liD•• $TATI; OftG\UJOIL'i!A. ~....... (W ·- ¢ ' jcdill~_,-c( .-~..,.___ ......... Oo • _............. - ··--·--·<"--~~"" _,_..._..,..,.,.__.a:~-C-III:llo0.1fS~IIJ PROOF OF SERVICE 1. My name is Ruth Flores . I am over the age of eighteen. I am employed in the State o'f California, County of _San BenrardinQ__ _ _ _ . 2. My~ 3. On February 8 , 2019 , I served an original copy_,£_a true and correct copy of the following documents: Verified First Amelld_ed Complaint for Declaratory and~·---­ business _ _ residenceaddressis Briggs Law Corporation, 99 East "C" Street, Suite 111, Relief and Petition For Writ of Mandate under the California Public Records Act, The California Constitution, And Other Laws 4. I served the documents pn the person(s) identified on the attached mailing/service list as follows: _· by personal service. I personally delivered the documents to the person(s) at the address(es) indicated on the list. L by U.S. mail. I sealed the documents in an envelope or package addressed to the person(s) at the address(es) indicated on the list, with first-class postage fully prepaid, and then I deposited the envelope/package with the U.S. Postal Service L placed the envelope/package in a box for outgoing mail in accordance with my office's ordinary practices for collecting and processing outgoing mail, with which I am readily familiar. On the same day that mail is placed in the box for outgoing mail, it is deposited in the ordinary course of business with the U.S. Postal Service. I am a resident of or employed in the county where the mailing occurred. The mailing occurred in the city of ___________U-"'-~'p,.,la,.,n,.,._d, California. __ by overnight delivery. I sealed the documents in an envelope/package provided by an overnight-delivery service and addressed to the person(s) at the address(es) indicated on the list, and then I placed the envelope/package for collection and overnightdeliveryin the service's box regularly utilized for receiving items for overnight delivery or at the service's office where such items are accepted for overnight delivery. _ by facsimile transmission. Based on an agreement of the parties or a court order, I sent the documents to the person(s) at the fax number(s) shown on the list. Afterward, the fax machine from which the documents were sent reported that they were sent successfully. by e-mail delivery. Based on the parties' agreement or a court order or rule, I sent the documents to the person(s) at the e-mail address(es) shown on the list I did not receive, within a reasonable period of time afterward, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws that the foregoing is true and correct. Date: ------"F~e~br._,u"'a._..r_yJL ~2""0""'19~-- of the United States_.[__ of the State of California 1 SERVICE LIST 2 Donna Frye v. City ofSan Diego et al. San Diego County Superior Court Case No. 37-2017-00041323-CU-MC-CTL 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorneys for Defendant and Respondent City of San Diego