MEMORANDUM - Voice Of San Diego

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City of San DiegoCouncilmember Scott ShermanSeventh DistrictMEMORANDUMDATE:March 22, 2018TO:Honorable Mara Elliott, City AttorneyFROM:Councilmember Scott ShermanRE:Additional Clarification Regarding SDSU West InitiativeOn March 1, 2018, the City Council received an initial review of the SDSU West Initiative fromyour office. The report provided clarification on a number of important details. As the reportnoted, the Initiative contains many novel and untested issues1 that will need to be clarified andresolved. In clarifying some of those issues, several new questions have arisen. I respectfullyrequest a response on the impact of these new issues that have been raised by your initial review.The California Education Code states that “No person shall, without the permission of theTrustees of the California State University, use this name, or any abbreviation of it or any nameof which these words are a part, in any of the following ways: Cal. Educ. Code §89005.5(a)(2).[ ] To display, advertise, or announce this name publicly at, or in connection with for itspurpose or any part of its purpose the support, endorsement, advancement, opposition, or defeatof any strike, lockout or boycott or of any political, religious, sociological, or economicmovement, activity, or program.” Cal. Educ. Code §89005.5(a)(2)(C). In light of the CaliforniaEducation Code and your memo, which states that the Initiative is “proposed by privateindividuals, not SDSU,”2 I have the following questions: 12Does the Initiative title “SDSU West Campus Research Center, Stadium and River ParkInitiative” itself violate California Education Code § 89005.5?o What are the remedies if the title is found to violate the California EducationCode section?City Attorney Report 2018-1 (March 1, 2018) Footnote 13City Attorney Report 2018-1 (March 1, 2018) p. 4

Was the SDSU West Initiative financed and circulated in violation of CaliforniaEducation Code § 89005.5 due to the name of the finance committee as “Friends ofSDSU, A Coalition of SDSU Alumni, Business and Community Leaders?”o What are the remedies if the financing and circulation of the SDSU WestInitiative are found to violate the California Education Code section?Could the City of San Diego and individual Councilmembers be held liable for placing anInitiative on the ballot that violates California Education Code § 89005.5?The California Government Code states “It is unlawful for any elected state or local officer,including any state or local appointee, employee, or consultant, to use or permit others to usepublic resources for a campaign activity, or personal or other purposes which are not authorizedby law.” Cal Gov’t Code § 8314. The CSU Board of Trustees are state appointees. The signedproponent of the Initiative, Jack McGrory, was recently appointed to the CSU Board of Trusteeson March 5, 2018. The term “Public resources” is defined as “any property or asset owned by thestate or any local agency.” Cal Gov’t Code § 8314(3). The California Education Code identifiesthe name of the university as “property of the state.” Cal. Educ. Code §89005.5(a)(1). As a resultof these sections, I have the following questions: Has the Board of Trustees approved the usage of the abbreviation “SDSU” for theInitiative title or the campaign finance committee?If the Board of Trustees were to approve the usage of the abbreviation, would thatconstitute a violation of California Government Code § 8314, as the usage of a publicresource (the name of the university) is for a campaign activity and possible personalpurposes?Is there a possible conflict of interest or violation of California Government Code § 8314for the Board and/or Boardmember Jack McGrory to take a future action related to theInitiative prior to its possible passage as Mr. McGrory is the signed proponent of theInitiative?Your memo thoroughly discussed the question “How Would the Terms for a Sale of the Site BeDetermined?”3 This section outlines the significance of the Purchase and Sale Agreementnegotiation. The significance is solidified throughout the memo as it notes that despite its title,there are no binding requirements in the Initiative for a research center, stadium, and river parkto be built4. The memo also states that there are provisions that “may affect the remediesavailable to be negotiated.”5 I would request additional clarification regarding the capabilities ofa Purchase and Sale Agreement. 3Due to the Initiative’s language that the “sale shall provide for the development of,”6 butdoes not explicitly require compliance with the conditions, can the City legally requirethose conditions as obligations as part of the Purchase and Sale agreement?In the negotiation of the Purchase and Sale agreement, does the City have the ability toinclude a provision for reversion in order to ensure the development envisioned isaccomplished?City Attorney Report 2018-1 (March 1, 2018), p. 6City Attorney Report 2018-1 (March 1, 2018), p. 10, 115City Attorney Report 2018-1 (March 1, 2018), Footnote 406Initiative, § 3,22.0908(c)4

If the City were to record restrictive use covenants or some other form of conditionsagainst the site, can the City enforce those requirements on SDSU, a state agency, afterthe sale?If the City were to record restrictive use covenants or some other form of conditionsagainst the site, can those conditions be overruled through the Campus Master Planrevision process?If the City were to record restrictive use covenants or some other form of conditionsagainst the site, are those conditions still valid if SDSU sells or leases to a third-partydeveloper?Thank you for reviewing the above questions. I look forward to your response and the continueddiscussion regarding the SDSU West Initiative.Attachments:California Education Code § 89005.5Page One of SDSU West Campus Research Center, Stadium and River Park InitiativeFriends of SDSU Campaign Finance FilingCalifornia Government Code § 8314

RE: Additional Clarification Regarding SDSU West Initiative On March 1, 2018, the City Council received an initial review of the SDSU West Initiative from your office. The report provided clarification on a number of important details. As the report noted, the Initiative contains many novel and untested issues1 that will need to be clarified and

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