Why Councilman Cate Likely Won’t Be Prosecuted for Helping Out Soccer City

by on October 18, 2017 · 0 comments

in San Diego

City Councilman Chris Cate’s admission of his decision to pass along a confidential legal memo to a lobbyist working for the backers of the Soccer City development proposal has been at the center of controversy in recent days.

Cate and his PR guy say the decision to share was a necessary part of gathering information to make an informed decision. Except it would appear the Councilman had already taken a stance since his photograph appears alongside a supportive quote with other project backers at GoalSD.com. And lobbyist Craig Benedetto, who received the memo–stamped “confidential”–donated to and raised funds for Cate earlier this year.

Image of Councilman Cate praising SoccerCity development at GoalSD website. What more do you need to know?

The City Attorney says she believes a misdemeanor offense was committed and referred the case to the County District Attorney’s office. And there it will die, despite compelling evidence Cate violated San Diego Municipal Code section 27.3564(e).

No judge or jury will ever hear the evidence or the Councilman’s defense. Such is the power of the County DA, a position currently held by appointee and heir apparent Summer Stephan.

Her ascension to the top prosecutor’s job was carefully orchestrated by Bonnie Dumanis, who stepped down to run for the District 4 County Supervisor seat held by term-limited Ron Roberts.

Summer Stephan and her establishment friends, via SDASD Twitter

Appointee Stephan will have all the advantages of incumbency in running for County DA in June 2018. The usual suspects in San Diego’s downtown cabal have all lined up to support her, and one need look no further than how the protection likely to be afforded Councilman Cate should be considered Exhibit A to understand why.

San Diego City Attorney Mara Elliott felt compelled to make her case as to why Cate’s actions were wrong in an op-ed at the Union-Tribune, following a bunch of “so what?” type of responses.

So what’s wrong with sharing the memo with a City Hall lobbyist if the intention was to have “the points clarified by all sides” because “the public has a right to know all points of view”?

First, it’s illegal. No single city employee can break the attorney-client privilege on behalf of the city. That can only be done by a vote of the City Council. It is also illegal for a council member to use city resources to help one side of an initiative campaign.

Second, nothing was clarified as a result of the leak, nor was the public made any the wiser. In the months since the memorandum was shared, there is no record that anyone other than the SoccerCity developers benefited from knowing “all of the points of view.”

Chris Cate’s (and Soccer City’s*) public relations consultant Tony Manolatos wrote an op-ed at Voice of San Diego suggesting that sharing the memo was a necessary part of the Councilman’s quest for understanding on the issue.

UPDATE: *Manolatos worked for backers of Mayor Kevin Faulconer’s plan to expand the San Diego Convention Center via a November 2017 special election. Had the City Council approved the idea (they didn’t), a measure concerning the proposed SoccerCity redevelopment of the Qualcomm Stadium property in Mission Valley would have also been on the ballot.

Manolatos use of the word “necessary” sets the stage for a possible defense argument, should this case ever end up in court.

It’s a jury of one on the SoccerCity question. Credit: Pixabay

Knowing this argument amounts to weak sauce since the Cate inquiry apparently began and ended with sharing the memo, the PR guy went on to do what all good debaters do when facing an incontrovertible argument: he attacked the person making the argument.

The city attorney has made it her mission to convict Cate in the media. She also is now on record as saying she longer trusts her client. This raises a whole host of potential problems for the city and city attorney’s office, including a potential conflict of interest the city attorney may now have in advising anyone on SoccerCity.

There is a related wrinkle that’s just as troubling as the political punches. For some reason, the city attorney’s office felt it was their right to announce that the district attorney’s office is investigating this matter. The city attorney’s spokesman, who is neither an attorney nor an investigator, released this confidential information in a written statement to the media following Cate’s press conference. Who shared this confidential information with the city attorney’s spokesman and why did he feel it was his secret to share? There is a reason agencies do not disclose the existence of investigations.

So now, if we are to follow Manolatos’ line of reasoning, there’s a political conspiracy against his client.

This isn’t the only conspiracy theory being bandied about town.

Union-Tribune columnist Michael Smolens raised questions about whether the leak of the memo, along with discussions preceding its disclosure, rose to the level of conspiracy.

Cate turned the analysis over to lobbyist Craig Benedetto, who in turn gave it to his client FS Investors, who have proposed the SoccerCity development and drafted a voter initiative to make it happen. It also made its way to FS’ attorney.

The memo wasn’t sent out of the blue. Cate and Benedetto discussed it beforehand, according to Cate’s newly hired public relations consultant, Tony Manolatos.

That could make things a little more interesting. The state Penal Code states it’s a criminal conspiracy “if two or more persons conspire: (1) To commit any crime.” And then it lists a bunch of more specific things that constitute a crime as well.

Attorney Will Moore, I think, accurately predicts the ending to the Chris Cate controversy in a Voice of San Diego op-ed published this morning:

Siobhan Rohlwink-Coutts / Flickr

The “necessary” defense doesn’t stand up to even the slightest scrutiny.

But Cate’s defense isn’t really “it was necessary.” Cate’s defense is: I did it because I felt like it, and I’m going to get away with it.

This was an abject and brazen betrayal of the public trust. He certainly should resign. But he won’t. He should lose his election over this — but his seat is pretty safe, and he raised a ton of re-election money before anybody else found out about this. The decision about whether to charge Cate with a crime resides with a district attorney who is facing her first election next year, and may be reluctant to confront a very powerful Republican Council member and probable mayoral candidate.

Maybe Cate’s calculation is right. Maybe he will get away with it. But it won’t be innocence that protects him. It will simply be power.

This is a portion of Doug Porter’s column at our online partner, San Diego Free Press.

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