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The developers are counting on your apathy. 12/31/06

As far as I am concerned the people of California still own Navy Broadway. 12/26/06

Don't blame KPMG - blame incompetent City staff. 12/22/06

Waring and Graham have to go. 12/21/06

Yes, Judge Barton was wrestling with ghosts. 12/19/06

Is Sunroad the turning point? 12/17/06

Navy Broadway is subject to the Coastal Commission. 12/16/06

The pension benefits are still illegal. 12/15/06

An extraordinary act of civic duty. 12/14/06

The job of a City Attorney is to apply the law. Period. 12/12/06

The Mayor's best chance of fixing things is to let the light in. 12/11/06

The waterfront projects need a fault investigation. 12/05/06

Bob Manis saw no fault. 12/03/06

The NBC site belongs to the people of San Diego. 12/02/06

Manchester's Navy Lease was signed on November 22, 2006. 12/01/06

Is Bob Kittle sabotaging Aguirre's pension case? 11/30/06

Is Manchester withholding seismic information from the City? 11/29/06

All this City needs is another investigation. 11/28/06

Merry Christmas Mr. Manchester. Signed: San Diego City Attorney. 11/26/06

City Attorneys and land giveaways. 11/24/06

Docketing for Dollars. 11/20/06

Have we become a government of men (or women)? 11/19/06

The elephant in San Diego's
living room - redevelopment. 11/17/06

The Knights and peasants of San Diego Today. 11/16/06

The SEC finding. 11/14/06

The Qualcomm Stadium parking lot car sales lease. 11/13/06

Sanders hasn't forgotten who elected him - has Mike. 11/11/06

Did Mike Aguirre hire Suzanne Varco to lie? 11/10/06

Neighborhood Groups are the ultimate stakeholders in this city. 11/09/06

A man we can best consign to our past. 11/06/06

The law is the same for everybody, even for Sanders and Hillel. 11/05/06

I can't imagine the courts upholding Ann Smith's premise. 11/03/06

The anatomy of a smoke and mirrors "Redevelopment" deal. 11/01/06

The CPGs have the votes - therefore the power. 10/31/06

Affordable Housing can be a city's cities' "Nuclear Waste". 10/30/06

Thanks Mr. Hall. Join Tevlin and Fulhorst on the Roll of Honor. 10/29/06

Tevlin and Fulhorst deserve our full support. 10/27/06

How our Citizen Army is defending our City. 10/26/06

The SEC is not the problem - Sanders is. 10/25/06

Prop. A - a regional airport or regional gridlock.10/24/06

"The poor are always with us" - and so it shall remain. 10/23/06

An outrageous denial of the public's rights. 10/22/06

Poway is the canary in the coal mine. 10/21/06

There will be a Navy Broadway CEQA hearing. 10/20/06

Treachery has always demanded the harshest penalties. 10/19/06

Carl DeMaio is the real face of Prop C 10/18/06

The developer/union pact in action today. 10/16/06

The hidden hand of "Pappa" Doug again. 10/16/06

How to achieve balance in the development process. 10/15/06

A taste of government for profit. 10/14/06

Prop B is a win-win for Sanders - 10/13/06

The "Jerry & Jerry Business Plan". 10/12/06

If the politicians won't take responsibility, the staff must take the fall. 10/11/06

Prop C would create Halliburton-by-the-sea 10/10/06

How to break the developers' grip on DSD 10/09/06

The City Council must reject this tainted SEC decree or face corruption charges
10/07/06

Strongman Sanders is trying to become a right wing dictator 10/06/06

Aguirre provides for the "rule of necessity". 10/05/06

Does DSD have a conflict of interest? 10/05/06

This is our Charter Document to defeat the developer takeover 10/04/05

All we needed was somebody to uphold the law 10/04/06

Who will take personal responsibility now? 10/03/06

Don't believe everything you read in the papers 10/03/06

The DC gig is off. Aguirre removes Sanders "wraps" 10/02/06

Sure Mike, Sanders is a nice guy. 10/02/06

Developers intend to outsource most of our City Government. 10/01/06

Manchester's Monstrosity will cost 4 seats on the Council  09/28/06

Sanders is now the Developer-in-Chief himself. 09/27/06

CCDC is not the redevelopment agency and
the U-T knows it 09/26/06

Will the unions now grab their chance? 09/25/06

Will Manchester try to sue the City? 09/23/06

We could become the Alexandria of the Modern World. 09/21/06

Is CityTV being censored? 09/21/06

LaSar gives Manchester's project the coup de grâce 
09/20/06

Thanks Mike. You're everything we knew you were 09/20/06

We need a Citizens' Action Plan 09/19/06

San Diego is becoming the national model for developers 09/19/06

They want to place CCDC above the City Council 09/17/06

Go ahead Mike, "obstruct" the hell out of them 09/14/06

The Brown Act is winning 09/14/06

The Brown Act vs. Mayoral Decree 09/13/06

So much for the Brown Act
09/09/06

Guilt and Billions in the balance
09/08/06

Remediation is big business 09/06/06

Levitt and Kittle want a Wall Street Monitor real bad 09/05/06

Has Jerry Sanders been "got at" too? 08/31/06

Aguirre's Tax Remediation Plan 08/30/06

The Kroll/Carlyle Plan 08/30/06

Without Aguirre we would still be in the dark 08/27/06

We need an elected City Auditor, not another appointee 08/26/06

The Bribe is working! 08/25/06

The real Vortmann "Bombshell" 08/24/06

Isn't interfering with the duties of a City Attorney, actionable? 08/22/06

The entire City Council is hiding under Donna Frye's skirts 08/22/06

This letter is "Ground Zero" 08/20/06

Plot to discredit Frye will backfire 08/17/06

The U-T try to discredit Donna Frye 08/17/06

The case of the negligent bank robber 08/16/06

The Blogosphere welcomes Mike Aguirre 08/16/06

Matt Hall in the U-T "pulls a Levitt" 08/14/06

David Copley should talk to his accountants then fire Kittle 08/13/06

April Boling should apologize to Mike Aguirre 08/11/06

It will take more than a KPMG audit to straighten out this city 08/11/06

It's time we all woke up around here 08/10/06

Levitt has a number of City Councilors over a barrel 08/10/06

Crime pays - if you have the right connections 08/08/06

San Diego can be the U.S. poster child for democracy 08/06/06

Your City needs you at City Hall on Tuesday 08/03/06

Levitt is being paid to keep our City Councilors out of jail 08/02/06

Just show us the Settlement Statements 08/02/06

The oldest trick in the game - release bad news, break for vacation 08/01/06

Manchester's Empire vs. our priceless downtown waterfront 07/31/06

It is time the U-T reined in Bob Kittle 07/29/06

The Kroll Report may decide the bankruptcy question 07/28/06

Scott Peters and the Corbett Settlement 07/27/06

$450,000 per employee! 07/27/06

This is not about Aguirre 07/27/06

"Her Honor" the unelected Mayor of Downtown again 07/26/06

Pat Shea and Ann Smith 07/25/06

Matt Hall and the Brown Act 07/25/06

The U-T continue to run interference for Kroll 07/21/06

Peters denies everything 07/19/06

Peters and Murphy must stop Aguirre or they go to jail 07/18/06

Has Bob Kittle seen the Kroll report? 07/14/06

The real estate sky is not falling 07/14/06

The Madaffer "fix it" machine is in full swing this week 07/13/06

The U-T is not an unbiased reporter 07/12/06

Facts are stubborn things 07/11/06

Back to normal with the U-T in charge 07/11/06

We finally have some outrage 07/10/06

Anybody for jury duty? 07/10/06

Superwoman quits 07/07/06

The Malcolm Magic 07/07/06

Nearing a judgment in the pension case 07/05/06

The developers are counting on your apathy. 12/31/06

Buyers Realty Special Offer

by Pat Flannery

The City Attorney has issued legal guidelines for the City Council's upcoming January 9th decision, regarding Navy Broadway. Here is the full MOL. It draws heavily on the Navy's Environmental Assessment (EA) dated June 2006. According to DSD this Navy document was not made available to them until November 25, 2006, more than a month after the October 19, 2006 Manis finding. That could become a key point on January 9th.

With the benefit of having read this June 2006 EA, the City Attorney's MOL clearly contradicts the Manis finding. It lists a whole range of major "changed circumstances" identified by the Navy, where Manis found none. The writer, Chief Deputy City Attorney Shirley Edwards, could not usurp the Council's authority to determine whether these changes are "substantial" or not, so she deferred to their decision on January 9th.

If you read the MOL carefully it is hard to imagine how the City Council will be able to ignore these "changed circumstances" and "new information" and uphold the Manis finding. This "new" information simply was not available to Manis on October 19, 2006 - or was it? It is very odd that Sanders' staff never saw that June 2006 Manchester seismic report or saw that June 2006 Navy EA. Both documents were "unavailable" to Manis until after he wrote his finding and until after Manchester donated $50,000 to Sanders' Prop C.

What part did the Navy play in these political shenanigans? How badly do the brass want those waterfront offices?

In a fit of patriotic fervor, after the 1914-18 World War, the people of San Diego "granted" the U.S. Navy the use of a valuable piece of public trust land on the waterfront. The Navy had urgently needed a pier and supply depot for their growing pacific operations and the San Diego people responded generously. They never imagined that the Navy would try to keep this public trust land for ever.

For millenia, long before the Romans, all river, lake and seafront land was public land. The reason: freedom of navigation was universally considered vital to commerce and defense. Nobody, not even the king, was allowed to own or control waterfront land.

Here in San Diego the U.S. Navy has broken that trust, sacred over thousands of years. By becoming a developer in its own right, the Navy has abused the power of its mission to defend us. It has taken our land for its own gain and comfort. It did so by the simple expedient of declaring that the land in question, Navy Broadway, is no longer "tidelands" because it has been "filled"!

That was the spurious argument used by the U.S. Court in its Memorandum of Decision and Order dated July 1, 1991. Read it again on page 7. It baldly states that public land ceases to be "tidelands" when it is "filled". If that flawed logic were applied everywhere "tidelands" have been "filled", there would be precious little "tidelands" left in the U.S.

Now read the struggle of the people of Miami to preserve their bayfront. Note that the Navy commandeered it from the Miami people at the outbreak of WW II but gave it back to them in 1950. Quite a different story from San Diego. Look at their bayfront today:

Miami's Waterfront

 

Look at Chicago's lakefront today. Miamians and Chicagoans KNEW they deserved a waterfront park. We San Diegans are too shy to ask. So we get what we deserve.

Chicago's Waterfront

Look at San Diego's pathetic bayfront. This is the scale model proudly displayed in the downtown offices of CCDC as I write. What is wrong with us San Diegans? Why do we tolerate spineless City Councils one after the other? Where is our civic pride?

San Diego's Waterfront

The January 9th City Council session will settle the question once and for all: "do people matter in San Diego?", or is this just a "Navy town"? Is that the difference between us and Chicago and Miami?

In order to side with the Navy and its eager co-developer Doug Manchester, the City Council will have to make a highly moral choice. Each Member knows, as everybody knows, that this whole Navy Broadway affair has been rigged by the Navy. Its brass wants the best view in town. And they picked the perfect partner - Doug Manchester.

Instead of a bayfront park, Navy Broadway would become a warren of dingy offices, populated by a rabble of panhandlers, contractors who would hook a sewer pipe for a 1,000 bed Navy dorm facility to the storm drain and dump 14 million gallons of raw sewage into our bay. Anybody heard from the Navy on that? An apology maybe?

The big contractors of course will have bay views and private walkways to the Navy brass's bayfront suites. "Pappa" Doug will get what he wants: an endless stream of contractor wannabes, eager to rub shoulders with corrupt politicians in a controlled environment. Any politician worth his/her salt will want to have an office there.

So what do you San Diegans want? A nest of thieves, or a bayfront park? What does our City Council want? Assuming it is "ours". The moment of truth is on January 9, 2007.

If you wait to read about it in the newspapers, you already know the answer. The Mayor, the City Council, the CCDC, the Navy and its greedy co-developer Doug Manchester, are all counting on your apathy. On January 9th you will get the waterfront you deserve. On the other hand you could go down there and speak up. It would make a difference.
 

As far as I am concerned the people of California still own NBC. 12/26/06

by Pat Flannery

My thanks to Don Wood for sending me this U.S. District Court Memorandum of Decision and Order dated July 1, 1991. It makes interesting and timely reading.

Contrary to popular belief, that the City of San Diego freely gave "fee simple" ownership of the Navy Broadway site to the Navy in 1919, the truth is that the Navy took it by eminent domain in 1991.

The land was ours before we were the land's.
She was our land more than a hundred years
Before we were her people. She was ours
In Massachusetts, in Virginia,
But we were England's, still colonials,
Possessing what we still were unpossessed by,
Possessed by what we now no more possessed.
Something we were withholding made us weak
Until we found out that it was ourselves
We were withholding from our land of living,
And forthwith found salvation in surrender.
Such as we were we gave ourselves outright
(The deed of gift was many deeds of war)
To the land vaguely realizing westward,
But still unstoried, artless, unenhanced,
Such as she was, such as she would become

                                 Robert Frost

Remember that sovereign people of states request entry into the United States, the United States does not extend its government over the people of new states. California requested entry into the U.S. but remained a sovereign State. The U.S. District Court Memorandum of Decision and Order dated July 1, 1991 was a rape of that sovereignty.

The Spanish Empire "acquired" California by conquering the Aztec Empire and various other Native American peoples.  William Lamport (1615-1659), an Irishman living in Mexico and nicknamed El Zorro, posted his Proclamation of Independence on the walls of Mexico City. He was the "author of the first declaration of independence in the Indies, a document that promised land reform, equality of opportunity, racial equality and a democratically elected monarch over a century before the French Revolution."

Like many Irish revolutionaries he met an untimely death, not at the hands of the British, but burned at the stake by the Spanish. Mexico had to wait nearly three hundred years for independence from Spain. In 1824 it became a federation of "free and sovereign states", which unfortunately was replaced in 1835 by a French-style "departments" system, centralizing national power in Mexico City under President Santa Anna.

The people of California, new Europeans and what was left of the Native Americans, finally became a sovereign State on September 9, 1850. You wouldn't think so to read the U.S. District Court's Memorandum of Decision and Order dated July 1, 1991, granting itself, the United States, "fee simple" title to the Navy Broadway site "subject only to certain utility easement rights held by the City of San Diego".

I wonder what would happen to this Irishman if he posted a Proclamation of California Sovereignty on the walls of the downtown Federal Building. Do they still burn heretics at the stake? As far as I am concerned the people of California still own Navy Broadway.
 

Don't blame KPMG - blame incompetent City staff. 12/22/06

by Pat Flannery

I thought I should republish a list of KPMG "pending" items released by City staff earlier this year, when they were trying to demonstrate how hard they were working to satisfy KPMG. It actually had the opposite effect on me. I wondered, and still wonder, how so many basic items could still be outstanding since 2003. The very questions asked by KPMG give some idea of the chaotic state of the City's bookkeeping.

Here is the audit list once again. And here is a list of auditing terms. The City staff indicated that they had "provided" each item, but because KPMG had not signed off on them, the City marked them "pending" in the KPMG column. I wonder how many of them are still "pending" as far as KPMG is concerned. Unless the standard of record keeping has vastly improved the answers "provided" are as dumb as the records were in the first place. My sympathies are with KPMG in trying to make sense of anything "provided".

Read down through the "Item" column and get a feel for the kind of basic stuff KPMG was asking for. I wonder if we will ever get a meaningful audit. I can just imagine the internal "quality control" discussion presently taking place at KPMG - "what are we going to do with these idiots at San Diego? How can anybody sign off on such garbage?" I was once an auditor myself and know how exasperating an incompetent client can be.

A good manager needs to be able to read financial statements, just as a good physician needs to be able to read X-rays and lab reports. Sanders has no training or interest in financial statements, therefore he is incapable of telling a department head that their operating statement doesn't make sense. He doesn't know!

That is the reason we have no audited accounts, no idea when we are going to get them and a zero credit rating. Sanders allows the same bunch of incompetent paper shufflers to shuffle ever more meaningless paper, because he has no idea what they are doing.

Putting a former police chief in charge of the City's finances is like putting a fireman in charge of a surgery. Sanders  may be a smiley face, but he is no administrator.

Sanders hired Jay Goldstone to neuter the one man at City Hall who knew how to prepare financial statements, John Torrel the City Auditor/Comptroller. John quit on Thursday, totally disgusted with the police state City Hall has become under Sanders,  who is more concerned with managing the City's news than the City's finances.
 

Waring and Graham have to go. 12/21/06

by Pat Flannery

In my opinion Jim Waring and Nancy Graham should be fired on the spot. They have been deliberately hiding a "large, 2-inch thick, final fault investigation report consisting of analysis and interpretation of seismic reflection surveys, Cone Penetration Test (CPT) soundings, and borings dated June 2006".

Katheryn Rhodes, finally gained access to this report yesterday, courtesy of Perry Dealy, Executive VP of Manchester Financial. She was only allowed to look at it in Mr. Dealy's presence. No copies. To his credit Dealy seemed less interested in hiding it than do Waring and Graham. What are these two up to?

Here are some quotes from Ms. Rhodes' email to the City this morning: "The developer was told by both Jim Waring and Nancy Graham that the report was not required to be submitted during plan review of the project and they could wait until building permits are issued in a few years".

Perry Dealy confirmed this to Ms. Rhodes, but added: "The developer stated that if the City of San Diego asks that the fault investigation report be turned in for review, they will comply with the request."

This means that Waring and Graham asked Manchester to sit on the June 2006 seismic fault investigation, saying they did not need to see it. These are not the kind of people we want in positions of authority in this city. They did this so their compliant underling, Bob Manis, could write his infamous finding on October 19, 2006.

Through them the City contrived not to see this report so it could issue a false CEQA finding. That is the long and the short of it. If Sanders is to retain any credibility he must immediately fire the three people most responsible for this piece of gross mal-administration. Waring and Graham are particularly unfit to serve in city government.

As for Manis, his own operating manual makes his duties abundantly clear. Rhodes writes: "according to the City of San Diego Project Submittal Manual and Information Bulletin 515, the June 2006 fault investigation report should have been turned in before CCDC were ever allowed to look at plans for the project." Instead, he did as he was told.

Rhodes concludes: "we insist that an independent review of the fault investigation report prepared by Geocon Incorporated dated June 2006 be conducted by the City of San Diego Geologist, the State of California Division of Mines and Geology, and concerned citizens for this billion dollar-plus project as soon as possible."

Her quick look at the report yesterday revealed that "fault or fault-like features offset and displaced the horizontal soil layers for hundreds of feet vertically."

Very concerned, she today warns the City (she is a civil engineer): "The north-south trending direction of the fault or fault-like features identified in the (also in June 2006) Terra Physics report would correlate well with the 2001 and 2003 fault investigations of San Diego Bay by the California Division of Mines and Geology, and the 2006 investigation for the Coronado tunnel by Kleinfelder, Inc.  Based only on a cursory review of the cross sections of the seismic reflection survey, active faulting seems to exist on the Navy Broadway Complex."

With tongue firmly in cheek she writes: "The active Coronado fault may abruptly stop within feet of the Embarcadero and not reach land or it may trend to the east of the project site."

Sure, the Coronado fault may stop dead at the water's edge - because Nancy Graham commanded it to. Or it may suddenly have taken a hard right turn to the east and is now a mere "anomaly" (it is through "anomalies" in the earth's crust we discover "faults").

We have had enough of people like Graham and Waring. It is because we had such flawed public servants in the past that we now face bankruptcy. The City Council did not heed the warnings of Diann Shipione in 2002 (indeed they tried to discredit her) will they now ignore the warnings of Katheryn Rhodes? We will see on January 9, 2007.
 

Yes, Judge Barton was wrestling with ghosts. 12/19/06

by Pat Flannery

It was so refreshing to read Pat Shea's piece in The Voice yesterday: "You don't need to do anything to make them "void." They just are as a matter of law. The secret unfunded and unbudgeted deficits never exist because the law, as I previously understood it, doesn't allow them to come into existence in the first place."

I hope the law still is as Pat and I "previously understood it". That is the way I learned contract law many years ago as part of my accountancy and business training. I well remember the classroom distinction between "void" and "voidable".

What really bothers me is this modern trend towards relativism. How can we have an ordered society if there are no absolutes? Under relativism, concepts of truth and moral values are not true in all cases. "Circumstances" and "situations" have to be taken into account. But who gets to decide the merits of these "circumstances" and "situations"? One individual? A judge? That's my problem with relativism. Judge Barton's misguided and confused pension ruling is a perfect example of this woolly kind of thinking.

Pat Shea is right. Barton was wrestling with ghosts. The pension benefits he treated as real, didn't exist. In the process, he nearly drove himself, and us, crazy. He really needs to look in the mirror and ask himself what it means to be a judge. I hope he does.

Maybe it's our own fault for running to judges with every piece of nonsense we encounter every day. We seem to have debased the whole judicial concept. Making sense of nonsense is not what judges are for. Unfortunately many of them are not smart enough to understand that. They think they become wise when they don those robes. They sit and listen to circular, convoluted, spurious nonsense, unable to discern what is real and what is not. Deciding what is real and what is not is exactly their primary duty!

Many of them do not seem to believe in "absolute" truths or moral values. Judge Barton for one, could have spared us all a lot of time and expense by simply applying the objective law as it undoubtedly exists. He could have disposed of this case within a week. The pension benefits he has been wrestling with are ghosts - they do not exist.
 

Is Sunroad the turning point? 12/17/06

by Pat Flannery

Welcome home Mike Aguirre - I hope. His lawsuit against Sunroad Enterprises evoked this negative comment from Fred Sainz, spokesman for Mayor Jerry Sanders: “We don't think it sends a positive message to the development community”. Maybe not, but it sure was music to my ears. Is Mike Aguirre finally standing up to Sanders?

The handling of this Kearny Mesa construction project by the City of San Diego's Development Services Department (DSD) is a classic example of how DSD exists to serve the development community at the expense of the people of San Diego.

On page 5, Mike's lawsuit describes how this project was handled under "Process Two" in order to avoid review by the Planning Commission or by the City Council. The first anybody knew about it, including the FAA, was when steel framing appeared along 163. That's how "Process Two" works, it is an inside job.


























What citizens need to understand is that Sanders and Waring are trying to make  virtually all development decisions under "Process Two", thus rendering the Planning Commission and the City Council irrelevant. Our thanks to Deputy City Attorney Carmen Brock for her diligence in preparing this lawsuit and bringing this point to the public's notice. It is fundamental to Sanders' pro-developer policy.

Now let's hope our City Council finally wakes up and realizes what Sanders and Waring are up to. They should pay attention to the land use appeals of the ordinary people in the neighborhoods, rather than consistently swallowing the Waring and DSD snake oil.

Read Mike's entire lawsuit for a good picture of how this City under this Mayor tried to pull the wool over the eyes of not only its citizens but the FAA as well. I hope this means we have our City Attorney back. And again, well done Carmen Brock.
 

Navy Broadway is subject to the Coastal Commission. 12/16/06

by Pat Flannery

I attended the December meeting of the State Lands Commission (SLC) on Thursday. It was held right here in San Diego in the Port District's board room. Commission Members State Controller Steve Westly and Lt. Governor Cruz Bustamante were in attendance but the third Member, Director of Finance Michael C. Genest, was represented by his Alternate, Anne Sheehan.

According to Chairman Steve Westly it was the most important meeting in his four years on the Commission and it attracted the largest numbers of public speakers. The reason: a developer's attempt to build a timeshare/hotel on a precious Harbor Island parking lot. Harbor Island is State Land. If allowed it would set a precedent for the whole State. Fortunately the Lands Commission voted it down, to the great relief of those present.

The developer is Woodfin Suite Hotels, a San Diego based company. Here is the SLC staff report. It refers to the Commission's Policy Statement regarding the Public Trust Doctrine. The SLC staff concluded that "a timeshare development is not a use consistent with the Public Trust Doctrine". They based their conclusion on the fact that "timeshare accommodations are only available to a small segment of the population who can afford the tens of thousands of dollars for the initial purchase and who would own personal rights to the rooms and thereby prevent other use of these public lands".

The San Diego Unified Port District holds title to Harbor Island (and all other lands under its jurisdiction) in trust from the State Lands Commission. The Commission directed its staff: "to convey staff's analysis as set forth in this report and the Commission's finding (that it had adopted the staff's report) to the California Coastal Commission and the cities, counties and special districts that manage public trust lands granted to them by the State Legislature and for which the Commission retains oversight authority".

This means that the Coastal Commission cannot allow Manchester, or anybody else, to build hotel-condos (or whatever they may choose to call them) on land subject to the Coastal Commission. I wanted to see if Manchester would turn up. He did, in the person of his ever-faithful Executive VP, Perry Dealy.

Dealy's pitch was hilarious. He actually said that hotel developers need greater returns because the cost of building hotels on coastal land is skyrocketing as a result of the need to mitigate seismic faults and the accompanying risk of liquefaction.

This is the company that is telling the City that there is no seismic fault or risk of liquefaction on the Navy Broadway site! The City and CCDC are letting this company do its own seismic evaluation in its own time, which means that Manchester gets to decide what cost he must incur to mitigate non-existing seismic faults - none.

As a result he is setting this City up for the biggest corporate welfare law suit in American history. If the City Council confirms the Manis CEQA finding (that Manchester does not need to show the City an adequate fault investigation before getting clearance) the City will be liable for all his cost overruns due to fault and liquefaction mitigation. That will be decided by the City Council on January 9, 2007.

I urge you to read the Commission's Policy Statement and the Public Trust Doctrine.
 

The pension benefits are still illegal. 12/15/06

by Pat Flannery

For those who might be tempted to revel in Aguirre's embarrassment, especially some City Councilors and union members, let them reflect that with his rollbacks now off the table the City will have to choose between a special pension tax and service cuts. The 1996 and 2002 pension benefits are still illegal and their cost will continue to grow until they are either renegotiated or strangle the city.

The people will reject a tax increase. Period. They have made that clear time and again. They will not pay for Cadillac pensions for overpaid public employees while they struggle to survive in the private sector with nothing to look forward to but social security. There is no point in anybody proposing it. It cost Donna Frye the Mayor's Office.

That leaves only massive service cuts. Therefore "the sins of the fathers will be visited upon the sons". Both the people and employees will suffer. The golden days of City employment are over. Current and future employees will pay for the past excesses. City employment will become less and less attractive, barely a notch above Wal-Mart.
 
The finances of the City will eventually recover but the unions will not. Many City employees will refuse to pay union dues. The political power of the unions will be non-existent. Italiano, Saathoff and Torres are the last of a breed.

Aguirre will quite rightly pursue a ruling of illegality to preserve the integrity of  government law. Barton did not rule that the benefits were legal. In fact he was careful to point out: "the issues in phase one do not deal with the underlying "legality" of the benefits, but rather the procedural impact of these past actions by the City which are not consistent with the City’s legal position in the current litigation. Like any party before the court, the City’s past inconsistent positions, or failures to act when there was a legal duty to do so, can impair the ability to proceed in the current litigation.

Before Peters and Madaffer start crowing about Aguirre's "failure" they should reflect on Barton's words. It was their failure to act "when there was a legal duty to do so" that denied Barton the ability to rule in favor of Aguirre. "Corbett" in 2000 and "Gleason" in 2004 merely compounded the illegalities on MPI in 1996 and MPII in 2002.

The tragedy is that the people did not find some way of getting rid of the four remaining City Councilors, Peters, Madaffer, Maienschein and Atkins, who perpetrated this fraud before they could consolidate it. They are still in there voting to cover up their illegal acts and blaming everybody but themselves. Peters will now pompously assert that he was right all along. It is a travesty of justice that he is a Councilor let alone Council President.

That is why I was so disappointed on Monday when Aguirre offered to help Peters with the SEC. Instead of helping these people he should be forcing them to resign in disgrace. Not only did they grant illegal pension benefits, they committed securities fraud, which will affect this City's credit rating for years to come.

As a result, no progress will be made until after the 2008 election. In the meantime these four gold diggers will outdo Juan Vargas in feathering their post-Council nests. Madaffer wants to become the Redevelopment Czar, a Nancy Graham on steroids. Atkins is singing the praises of a Balboa Park Conservancy. I am sure the top job there will pay in excess of $200,000. Why should outsiders like Nancy Graham from Florida have all the gravy? Toni is becoming a born-again privatization evangelist.

In the end of the day the whole pension mess will have to be renegotiated. It is either that or bankruptcy. But before negotiations can begin the unfunded benefits must be ruled illegal, it is the law. Aguirre may not have delivered the rollbacks but he has made the point that needs to be made: a city government cannot spend money it does not have; it cannot grant unfunded pension benefits. And Judge Barton has not said otherwise.
 

An extraordinary act of civic duty. 12/14/06

by Pat Flannery

Here is a summary of the Navy Broadway situation to date:

1. Despite Perry Dealy's various promises to Katheryn Rhodes and despite her best efforts, including a trip to Dealy's plush waterfront office, Ms. Rhodes has not been shown the seismic fault investigation done by Manchester.

2. Nor has either of the appellants, Ian Trowbridge or Katheryn Rhodes, been given a copy of the Navy/Manchester lease. This puts them at a huge disadvantage. That lease contains contingency clauses the disclosure of which is essential to the appeals. They are engaged in a contest the rules of which they are not allowed to know.

3. As City staff care so little about protecting the City (all they seem to care about is the developer) Katheryn Rhodes will commission one of her own! She has written to the Port Authority for permission "to conduct the non-invasive seismic reflection survey on Port of San Diego property at the northwest corner of Harbor Drive and Pacific Highway, directly south of the Navy Broadway Complex". This location is a lightly used public parking lot owned by the Port Authority and is the only place available for a limited investigation.

Hopefully her private investigation will determine whether the Coronado fault continues right up to the Navy Broadway site. This is the fault investigation the Port refused to do.

This bright young lady, who just happens to be a civil engineer, with very limited personal means, is willing to put $12,850 on her credit card (or however she intends to pay for it) in order to do the right thing and protect the City. CCDC, with its bloated $187 million annual budget could easily do it. DSD could simply require it of Manchester.

Instead we see this extraordinary act of civic duty. That is why she has had my total support from the very beginning. She has given me pride in my city again. Whatever the outcome of this sordid NBC affair, this city will be the richer for knowing it has faithful citizens like Katheryn Rhodes. I hope there are many more.

It is time the City Council started thinking about their vote on January 9th. Who will they trust? Ms. Rhodes or Doug Manchester? Their vote on that day will be as critical as that infamous vote on November 18, 2002. This time it will be Katheryn Rhodes not Diann Shipione and the issue is CEQA, not pension underfundung, but just as critical.

If the City Council allows Manchester to start construction on that site without knowing whether or not a seismic fault runs through it, serious consequences will occur.

My belief is that Manchester is backing the City into a corner. He is setting them up. He knows there is a seismic problem with that site. So he wants to shift the risk to the City. Two senior City employees, Jim Waring and Nancy Graham are helping him do it - by attempting to defer a fault investigation until after the City Council has voted.

When Manchester later "discovers" the full impact of a seismic fault on the project, he will blame the City. He will claim that it did not follow CEQA law, that it allowed him to proceed when it should have stopped him. He will cite the Manis CEQA clearance and the fact that the City Council upheld it. And he will have a point.

Bob Manis will be personally liable because he knows that by law when a site is in a known risk area and is subject to liquefaction, a fault investigation must be done as part of a CEQA clearance, not as part of the developer's due diligence in his own time, which is the position Manis now holds. He has been warned. He has read the appeal.

If each City Councilor has not read the appeal by now, it is time they did. They will be given no opportunity to say afterwards that they did not know the relevant law or that City staff misled them. Their clear legal obligation to obtain an adequate seismic fault report before voting on the Manis CEQA clearance will be put on record on the day of the appeal. There will be no escape afterwards from the consequences of their actions.

Once they know the facts they may choose to accept all kinds of seismic mitigation measures, but they must see a report to determine the seismic risk to that site before voting. If they try to obfuscate through this critical vote, with the usual hypocritical verbiage and wringing of hands, they will have proven that developers get anything they want in this city. The repercussions for themselves and the City will put the pension problem in the shade. Developer power will have replaced union power.

If they put on the blinders for developers, as they did so many times for the unions, there will undoubtedly be an investigation. I know of at least one Member of Congress who is following this case closely. I know of at last one law suit that is already being prepared.

This City Council will be accused of something far worse than securities fraud. They will have conspired to hide the fact that the San Diego bayfront is unsuitable for development due to seismic activity under hydraulic fill. They will be exposed as developer stooges.

Waring and Graham either already have the seismic study done by Manchester and are refusing to release it, or Manchester is refusing to give it to them. One is as bad as the other. Either way they are putting Manchester's interests before that of the City.

But the ultimate responsibility rests with the Members of the City Council. They can deal with their errant employees Waring and Graham later. Their vote on January 9, 2007 will be a test of who runs this city. If the Council rolls over and gives the developer everything he wants, there will be a gathering of the clans all over the city. It will be a signal to the people that they have lost control of city government. My guess is that there are many more Katheryn Rhodes' out there. But she is certainly the standard bearer.
 

The job of a City Attorney is to apply the law. Period. 12/12/06

by Pat Flannery

I went to Mike Aguirre's end of year Town Hall gig last night - an evening of Mike handing out valium. What surprised me was his over the top praise of Sanders. We desperately need open government, not Sanders-style closed government.

To cap his hero-worship of Sanders, Mike now wants to "help" the four City Councilors who disgraced this city and brought it to the verge of bankruptcy. That will come as a shock to many of his supporters. Most of them detest Madaffer and Peters. But Mike will now "help" these people with their high crimes and misdemeanors! Will he also "help" Murphy, McGrory, Golding, Grissom, Chapin, Herring, Lexin, Saathoff, Torres, Webster and Wilkinson? What about Zuchett and Inzunza?

Peters immediately spurned the offer. He says he is unaware he has any problems with the SEC. He is spending huge public money on private attorneys dealing with the SEC but is unaware he has a problem with them? And Aguirre wants to help this guy?

These four Councilors did wrong and should be held accountable. Mike should not offer the services of the City Attorney's Office in their dealing with the SEC. That is getting the City involved again. We are paying their massive legal fees, that is enough.

If we are governed by laws not by men, as Mike assures us we are, he should apply the Municipal Code to the sale of a City property to Hillel. He should apply the Municipal Code to NBC by requiring a seismic fault investigation before granting Manchester a CEQA clearance.

Finally, Mike made an error last night in not mixing with his guests, before or after his speech. Instead of coming down into the auditorium and shaking a few hands he gave a long interview to two reporters, off to one side. His hero Sanders would not have made that mistake. Jerry knows the value of pressing the flesh. Mike needs to learn it.
 

The Mayor's best chance of fixing things is to let the light in. 12/11/06

by Pat Flannery

I have been studying the 2007 City Budget. It is a hodgepodge of inarticulate statements that do not fit together to give an overall picture of the City. It raises more questions than it answers. It is not like any financial statement you would ever see in the private sector.

Sanders' Five Year Plan is a mere extension based on assumed % increases and decreases. It contains nothing new and sticks to the same inarticulate format.

The City's operations are carried out within various Funds:

Enterprise Funds provide various services such as Water, Metropolitan Wastewater, Development Services, Refuse Disposal, Recycling and others, through user fees.

$147 million of Inter-Fund transfers are dispersed throughout the Fund statements. An un-itemized total ($147 million) is shown at the end. But these money transfers are not grouped or totaled within each Fund.

The Mayor should require clear Revenue and Expense Statements per Fund. Inter-Fund transfers should be itemized and shown as a total in each Fund. We need to know how money is moved around. There should be a balancing statement, showing all money transfers within the system. All we know right now is that inter-fund transfers total $147 million. The opportunities for abuses and cover-ups are enormous.

In addition to Inter-Fund Transfers there are all kinds of internal services being billed backwards and forwards:

Again all we know is the total. There is no overall reconciliation of these charges. We don't even know when an expense item is internal or external. Nor is it possible to link a revenue item with its counterpart expense item in the fund where it is a charge.

Here are a few puzzling questions: how does the $293 million Capital Improvement Program (CIP) money get from other Funds, e.g. do sewer fees get transferred from the Sewer Fund to a CIP fund? How does the 1/2 cent sales tax get from the TransNet Fund to a CIP fund? When are Internal Services paid by fees and when by Inter-fund transfers?

The truth is that financial reporting at the City is a mess. How can the Mayor fix anything when he doesn't know what is broken? The City's staff has been allowed to get away with unbelievable sloppiness for years. Outsourcing is not going to cure that. It will become an even bigger mess. The Brits certified me as a public accountant nearly 40 years ago in London and I have never seen such bizarre "accounting" anywhere, here or in Europe.

After a whole year Sanders has failed to demand what any manager, from the smallest to the largest business, would require - basic revenue and expense statements.

The citizens would quickly reform this City if the light of day were allowed to shine into its finances. They would ask the questions Sanders is obviously not asking. The clamor for reform would be deafening. It makes one wonder whether Sanders really wants reform or if he just wants to reward his developer/business backers while he is in there.

He has surrounded himself with a team of control freaks. To get clarification on anything you have to fill out a public information request. Instead of openness the information doors are closed tight. Everything has to go through the Mayor's control freaks.

The Five Year Plan is business as usual - under greater secrecy. Nothing is changed. According to these people they will fix the City in the General Fund. All other Funds are off limits because they are self-sustaining e.g. DSD and Waste Water. Half the General Fund is also off-limits - it is for police and fire services. Therefore the City will be fixed within the $500 million left in the General Fund after public safety. That is insane.

The following Funds are not only off-limits to Sanders' cuts, they are completely off the books and off the the Budget.
 

Overall there is approximately $3 billion sloshing around in these badly managed "Funds". Incompetence is piled upon incompetence. Sanders, Froman & Goldstone haven't got a clue what is going on let alone know how to fix it. They run around doing BPR (Business Practice Reengineering) like kids playing doctor with toy stethoscopes.

Fred Sainz heads a bloated PR staff to put a lid on all information while keeping the Sanders spin machine whirring. Jerry makes soothing public appearances, smiling to the TV cameras, kissing babies and cutting ribbons. We must be America's Dumbest City.
 

The waterfront projects need a fault investigation. 12/05/06

by Pat Flannery

I went along to the Port District meeting today to see whether they would require a fault investigation for the Old Police Headquarters project.

No. They went ahead and issued a Coastal Development Permit (CDP) despite the fact that their Final EIR for the project, given to the Division of Mines and Geology, said that the project is within the Downtown Special Studies Zone and that a geotechnical investigation including a fault investigation would be conducted before a (CDP) would be issued. Staffers, John Helmer and Lesley Nishihira told the Commissioners that a fault investigation was not required.

It seems the Port Authority and CCDC are going to great lengths to avoid doing seismic fault investigations. Are they afraid that they will confirm that the Coronado fault continues under both the Old Police HQ and the Navy Broadway projects? Isn't that all the more reason to do a proper fault investigation? Lives could be at risk.

It is becoming inevitable that State regulatory agencies will get heavily involved in San Diego. Lying is endemic here. The pension crisis would never have happened if city staff simply told the truth. Port District staff John Helmer and Lesley Nishihira know that a seismic fault investigation must be done for the Old Police Headquarters project.

There is a real possibility that senior San Diego planning staff are being told to hide the implications of the Coronado fault. The developers of Navy Broadway and the Old Police HQ are obvious suspects. We must get them to do fault investigations on both their projects, otherwise we should call for outside help.
 

Bob Manis saw no fault. 12/03/06

by Pat Flannery

This official seismic map shows the magnitude of the Manis/DSD cover-up.

A well documented earthquake fault is headed directly at the NBC site, but Manis said it is totally clear of all environmental concerns. He cannot possibly believe that. So why on earth did he say it?

Because his boss, Jim Waring, told him to? Why would the City want to cover up something as deadly as an earthquake fault?

Why would Sanders take such an enormous risk? For one campaign contribution? Hardly. A seismic fault investigation would almost certainly kill NBC because the site is on hydraulic fill and prone to liquefaction. But not even Sanders would risk it all for just one project.

Maybe that's it. It would affect not just one project, it would affect all of downtown! Is that why Sanders, Waring and Nancy Graham conspired not to do a fault investigation at NBC? Finding an active fault would bring all downtown development to a screeching halt pending clarification of the seismic situation? Sanders' backers wouldn't like that.

I wondered why CCDC authorized Manchester to do a fault investigation as part of his "due diligence" rather than have the City do one for CEQA compliance. The difference is that the State of California must approve a fault investigation done for an EIR under CEQA while a "due diligence" fault investigation can be anything Manchester wants it to be. CCDC decided to move it out of the public domain into the private domain. Why?

Then last Wednesday Manchester's Executive VP, Perry Dealy promised Katheryn Rhodes (the appellant) that he would let her examine the fault investigation he claims to have done but which he says will remain private for two years. That sounded odd to me at the time. So far Ms. Rhodes has not heard back from him despite numerous phone calls to his office. He never had any intention of showing it to her, just fobbing her off.

Therefore both CCDC and Manchester have gone to great lengths to avoid doing a proper fault investigation. Why? They must be covering up for something. If they had nothing to hide they would simply have complied with CEQA from the start and got it over with.

On January 9, 2007 each member of the City Council will have to examine their conscience and decide whether or not to uphold the most immoral finding ever to come out of a city department - the notorious Manis finding. Manis deliberately ignored a fault declared active in the mid 90's that runs right under the proposed project. Unbelievable!

If the Council upholds Manis, the State of California will have to intervene and enforce CEQA law. It is inconceivable that such immorality, let alone illegality, will prevail. It is inconceivable that anybody could look at the above map and say "we see no fault".
 

The NBC site belongs to the people of San Diego. 12/02/06

by Pat Flannery

Mike Freeman's U-T report on yesterday's announcement by Doug Manchester that he had secured a 99 year lease with the Navy and thus avoided NBC entering the BRAC process, offers a glimpse into how the Mayor's office "coordinates" the news.

Freeman is the Mayor's favored reporter whenever anything to do with NBC is being released to the public. What is not said is often more significant than what is said. What was not said yesterday was that the City's finding of CEQA compliance is being appealed. It's amazing that the U-T would "forget" to mention that.

Obviously the Mayor's office would rather not stress that particular piece of information and Mike Freeman obliged. His continued access at the Mayor's office is obviously more important to him than a balanced report. After all he has a job to keep.

Then Mike Aguirre was quoted on a TV news program last night warning the City Council that if they uphold these appeals, scheduled for a January 9, 2007 hearing, they will invite a law suit from Manchester. Obviously the decks are being stacked against the appeals. The Mayor and the City Attorney are of the same mind on this one.

If on January 9, 2007 the City Council decide that a private investor, Doug Manchester, should be given a $1 billion asset for a mere $160 million (the construction of a new Navy HQ for $160 million is all that is being required of him for a 99 year lease), the State of California will intervene to enforce CEQA. That will kill the deal.

If the US Navy was willing to offer this deal to a private party, outside the BRAC process, surely the US Navy should offer the same deal, within the BRAC process, to the people who gave them that land in the first place, the citizens of San Diego. We should offer the Navy their $160 million and tell them go build their HQ elsewhere. This site belongs to the people of San Diego - for a municipal park.
 

Manchester's Navy Lease was signed on November 22, 2006.
12/01/06 (12:00 Noon)

by Pat Flannery

According to the Voice of San Diego this morning Doug Manchester "will make a major announcement at a press conference this afternoon". The Voice then goes on to say: "Officials for the Navy and Manchester said they will not comment until today's 3 p.m. event, but it's probable that the announcement will be related to both parties' agreement on a lease of the bayside property, which is due soon."

The "major announcement" the Voice are referring to already took place on Wednesday 29, 2006 when the Navy recorded this document at the San Diego County Recorder's Office. It is a Memorandum of Ground Lease between the Navy and Manchester Pacific Gateway LLC. The lease is for 99 years which amounts to fee simple ownership.

Was the release of this little gem of "news" carefully managed by the Mayor's Office? Did the Voice of San Diego have this document since Wednesday but sit on it so as not to steal Manchester's thunder at his 3:00 PM press conference today? This document has been on the public record since Wednesday. If I can get it, anybody can.

The last sentence of Section 4.1 of the City's 1992 Development Agreement (page 9) says: "The Navy shall provide the City with a copy of said memorandum contemporaneously with recordation". So we know that the Mayor's office received a copy of this crucial Memorandum of Lease before the CCDC board meeting on Wednesday November 29, 2006. Yet it was not mentioned at that meeting.

The actual Lease is dated November 22, 2006. A lot seems to have happened on that day: the Navy issued its  Finding of No Significant Impact (FONSI), Mike Aguirre's Office issued its NBC MOL, and Manchester's Lease was signed by the Navy.

For me the most significant thing about this Lease is that it is for 99 years. Section 5.9C (page 23) of the City's 1992 Development Agreement with the Navy sets the term of the Navy's lease to the City for the open space parcel, at 65 years. This was widely interpreted as also applying to a developer lease. How could the developer's lease be longer than the City's lease? What will happen to the open space after 65 years? Will it be developed? There is nothing to say that it cannot.

Section 4.4 (page 10) of the City's 1992 Development Agreement with the Navy says "it is the present intention of the Navy to retain fee ownership indefinitely". Is a 99 year lease consistent with that statement? A 99 year lease is treated as fee ownership by the County Tax Assessor and in various other legal interpretations of land ownership.

I have several other questions which I am sure will emerge and be dealt with over the next few weeks, or at least I hope so. For example, is the Navy required to record the full Lease or just a Memorandum of Lease? Are we ever going to see the full document?

The Lessee is a Delaware Limited Liability Company, Manchester Pacific Gateway LLC. Manchester is hiding behind the same impenetrable veil of secrecy Corky McMillan used in NTC. Why does the City allow that? Any one of the City Councilors could have shares in Manchester's Delaware LLC and we could never know! That is why they use a  Delaware LLC -  to hide the true identity of the Lease owners. NTC all over again.
 

Is Bob Kittle sabotaging Aguirre's pension case? 11/30/06

by Pat Flannery

Bob Kittle today wrote a mean-spirited and highly dishonest editorial lauding the last self-serving act of former Mayor Dick Murphy before he shuffled off the San Diego political stage to forever dwell in the shadows of well-deserved ignominy and disgrace.

Kittle turned the truth about this June 27, 2005 Council Meeting (Item 208, page 52) on its head by defending Murphy's last "present" to San Diego's taxpayers. Murphy tried to enact ordinances that validated his 2002 pension giveaways. It was so obvious.

The truth is that in 2005 Murphy phonyed up a 3 year labor agreement, designed to cover up his 2002 under funding of the City's pension system. At the end of that well-choreographed day in June Murphy touted the termination of the DROP program (for new hires only) as a major contribution towards curing the deficit. The whole thing was a nauseating con job, unworthy of the lowliest used car salesman. Eliminating the DROP program for new hires only was a drop in the bucket and a decoy for MP II.

Murphy hired an outside attorney, Bill Kay from San Francisco, to negotiate a series of wage agreements with the City's public service unions. It was a total farce. Here is what I wrote about it at the time entitled "The City may as well have hired Ann Smith".

Now Kittle would have us believe, as Murphy inanely asserted at the time, that this "labor agreement" was a major contribution to fixing the pension deficit. How could Mike Aguirre have validated such a farce? He didn't. Now Kittle is touting Aguirre's inaction as "obstructionism" and an "Expensive Snafu". What is Kittle up to?

The timing of his editorial is interesting - right when Judge Barton must make an important decision in the pension case. Is Kittle trying to sabotage Aguirre's rollbacks? Is the U-T coming to the aid of the very official that brought disaster to this city, Dick Murphy? It can't be for love of the city unions. Or is it something else?

Winning back the City Attorney's Office in 2008 is more important to these guys than saving the city taxpayers $600 million. Depriving Aguirre of a major court victory would go a long way to that objective. Aguirre won by the slimmest of margins. If he loses his pension case he will have a tough time getting reelected. Hence Kittle's editorial.

There is no way Aguirre could have supported a labor agreement that was designed to validate illegal pension benefits. He could not have given legal life to their phony MOUs.
 

Is Manchester withholding seismic information from the City? 11/29/06

by Pat Flannery

Manchester's Executive VP, Perry Dealy unexpectedly t