By Geoff Page
I did not watch Todd Gloria’s State of the City speech. I heard afterward that Gloria announced he had signed some kind of “executive order.” I had no idea the mayor had the power to issue executive orders. I decided to check this out.
After 20 years of working on complex construction claims and lawsuits, the most important thing I learned was the paramount importance of substantiation, good substantiation, specific substantiation. The first thing to look at was the mayor’s order.
Here is what the order said:
By virtue of authority vested in me as Mayor of the City of San Diego pursuant to the provisions of Article XI of the California Constitution and sections 28, 260, and 265 of the City of San Diego Charter, to promulgate, issue, and enforce rules, regulations, and orders governing the administrative affairs of the City, I hereby declare the following orders and direction to be necessary for the protection of life and property and I hereby order, effective at 11:59 p.m. on January 11, 2023. (sic)
So, the substantiation for the mayor’s authority to issue an executive order, according to the mayor, would be found in Article XI of the California Constitution and sections 28, 260, and 265 of the City of San Diego Charter.
Article XI of the California Constitution
Citing an entire article of the California Constitution is meaningless. The article is six pages and 2,320 words long. It has many subsections with more subsections. There is sufficient numbering throughout the Article that makes any specific reference to something in this Article very easy.
I spent many years reading lots and lots and lots of documents just like the ones referenced in the executive order. While I have my opinion, it would be great to have an attorney chime in and explain this connection.
The words “mayor” and “executive order” do not appear in Article XI. After reading the Article, the connection to Gloria’s authority to issue an executive order was not apparent.
San Diego City Charter
The mayor’s executive order referenced three sections of the San Diego City Charter, sections 28, 260, and 265.
Section 260: “Integration of Article with Charter,” is very short, it states:
All executive authority, power, and responsibilities conferred upon the City Manager in Article V, Article VII, and Article IX shall be transferred to, assumed, and carried out by the Mayor.
The city added this when San Diego went to the strong mayor form of city government.
Section 265: “The Mayor”
Once again, no specificity about which part of this long section supports the mayor’s right to issue executive orders. The words “executive order” do not appear in this section and do not appear anywhere in the City Charter. There is nothing obvious in this section that describes anything like an executive order.
Section 28: Duties of the Manager
There did not appear to be anything obvious in this section either that supported the mayor’s authority to issue executive orders. There was nothing in this section about the City Manager having authority to issue anything like an executive order. Once again, the words “executive order” did not appear anywhere.
So, what did the mayor include in his executive order? All of this:
1. All applicable City Departments shall liberally grant incentives and waivers for Affordable Housing Projects, which means emergency shelters, permanent supportive housing, transitional housing, and projects where 100 percent of the total dwelling units, exclusive of a manager’s unit or units, are covenant-restricted for a period of at least 55 years as affordable to very low-, low-, or moderate-income households (Affordable Housing Projects), to the maximum extent allowable.
2. All applicable City Departments shall process any required building permit applications, certificates of occupancy, or temporary certificates of occupancy within 5 business days for applications for 100 percent Affordable Housing Projects and within 2 business days for emergency shelters;
3. All applicable City Departments shall conduct and conclude all reviews required for 100 percent Affordable Housing Projects and to issue all appropriate approvals or requests for corrections for such projects within 30 business days following the project deemed complete date. To the extent practicable, all required reviews and approvals shall be conducted collaboratively with project applicant design professionals and decision makers, by all City departments so as to meet the 30 day periods specified for 100 percent Affordable Housing Projects in this paragraph;
4. All applicable City departments to prioritize and streamline compliance with the provisions of the Building Homes and Jobs Act – Government Code section 27388.1 in order to maximize the City’s eligibility for state and federal funds to support the development of emergency shelters, transitional housing, and permanent supportive housing. The City shall seek to comply with or otherwise meet all criteria specified under all applicable state and federal laws that provide for increased resources, funding, access or allowance for temporary or affordable housing;
5. All applicable City Departments shall work to achieve these timelines for 100 percent Affordable Housing Projects by means that include expanding the City’s permit expediting processes to include the subject projects and providing additional customer technical and regulatory assistance, conflict resolution, designating specially-qualified project management and review staff, and providing all other resources necessary to provide top quality customer service;
6. The City’s Development Services Department shall work with the Personnel Department to expeditiously fill the remaining 21 vacancies of the 39 new positions added in the Fiscal Year 2023 budget to focus on expedited issuance of building and grading permits for new Affordable Housing Projects;
7. The City’s Development Services and Purchasing & Contracting Departments shall prioritize execution and implementation of temporary contracts to assist with the civil and structural engineering backlog to further expedite the issuance of building permits for new Affordable Housing Projects while continuing to ensure the public health, safety and welfare, subject to City Council approval, when applicable, and requirements of the City Charter and San Diego Municipal Code;
8. The City Planning, Development Services, Public Utilities and Engineering & Capital Projects Departments shall issue guidelines by March 15th, 2023 as necessary to implement the provisions of this Executive Order.
This is a hell of a lot. Basically, it is an order to streamline and speed up the project development review process, which means ignoring requirements of a normal development project. And, the executive order is rife with ambiguity meaning that any corners anyone wants to cut they can with little fear of any repercussions or oversight.
There is no specificity in the entire order. It really is a poorly written piece of political trash. It is simply designed to try to make Gloria look good before this election, look as if he is actually doing something. But, it will affect us all negatively. For starters, who will enforce this order?
I am going request the city attorney’s legal analysis of the four cited references showing specifically what language in those documents substantiate the mayor’s authority to issue executive orders. (Any attorneys out there who wish to chime in, please do so.)
Mayor Faulconer issued an order during the pandemic closing businesses, public spaces, etc:
City of San Diego
EXECUTIVE ORDER NO. 2020-1
By the Mayor
“On March 12, 2020, I issued a proclamation of local emergency in preparation and response to the spread of the COVID-19 virus in our community. On March 13 , 2020, I ordered measures to be taken across the City to protect members of the public and City employees from an undue risk of contracting the COVID-19 virus including closure of libraries and recreation centers …”; dated March 16, 2020 and signed by Mayor Kevin Faulconer.
The governor had already declared a state of emergency. This hardly justified an “executive order” but if it did, it was a public health emergency, at least that was what everyone thought. I wonder how many orders Faulconer issued?
Here’s the Philadelphia Mayor’s power:
“The mayor is the chief executive officer of the City of Philadelphia. As CEO, the mayor has the power to issue executive orders to agencies in the executive branch of City government. These commands or directives generally concern the implementation of laws or mayoral policies. Executive orders may be amended, revised, or repealed by subsequent orders.”
In LA, on 12/16/22 “As part of her agenda to move Los Angeles in a new direction by taking an unprecedented and urgent approach to the city’s homelessness crisis, Mayor Karen Bass today issued Executive Directive 1 to dramatically accelerate and lower the cost of building affordable housing and temporary housing.”
It’s an interesting question.
“On 02/10/2023
LOS ANGELES – Mayor Karen Bass today issued Executive Directive 3 to maximize the use of City-owned property for temporary and permanent housing as she moves Los Angeles forward with an urgent and strategic approach to addressing the homelessness crisis.”
At least it was clearly stated in the Philadelphia code, not so here. I think they are trying to blur declaring a real state of emergency with broader issues.
It wouldn’t be the first time this mayor has made a statement or mandate as if he’s the king and viola it happens. In this case, I’m thinking he heard enough of the Geo. Mullen, and Bill Walton’s plan for Sunbreak Ranch, that he thinks the City employees are ready to take it on. We have a mayor has shown repeatedly he has no business mind. He went to a private college, USD, and has only worked in politics. Has no real life experience in the real world. So by making everything happen in 30 days, how much of this uneducated fantasy decision going to cost the tax payers in delays, poorly constructed dwelling units, shortcuts, inadequacies, etc. It normally takes 1 1/2 yrs. to get a Permit, so were the employees in the DSD Dept. sleeping or chit chatting with each other routinely to severely slow up the Permit process, so now he’s hired a bunch more of inexperienced people to crank them out in 30 days. This knee jerk behavior is another of the dog and pony show’s he’s good at. Watch for his next fiasco. He’s desperately trying to get something done he can brag about after being none productive for almost 4 yrs. Vote for Larry Turner for mayor if you want someone who has leadership skills, and 23 yrs. in the Marine Corp, retiring as a LT. Col. THAT’s leadership skills and knowledge.
Thank you Geoff Page. Look deeper at the actions of Todd Gloria’s, especially the legislation he is directly responsible for throughout his entire political career, and anyone will see what a racketeer he and his personal Roy Cohn, Mara Eliot really are.
It should sicken everyone how Todd Gloria exploits affordable housing time and time again for his own gain and his oligopoly, yet the affordability situation worsens, This is what is meant by “weaponized incompetence.” or another more accurate term “plausible deniability.” This is yet another Gloria hole smash and grab! Help convene a Grand Jury investigation. These Central Committee produced Democrats are literally shameless, and Godless.
Agree with everything you said! But what can we do?? Aside from vit whim out ASAP?
Very thorough and informative. I learned so much. Thank you!
Thank you for this excellent article and the specifics. I have never in my life witnessed such a reckless disregard for zoning. Empowering Todd Gloria will seal the fate of this once fine city. Power hungry mayor with the goal to throw this city into complete chaos and bedlam.
I hope people are waking up and getting a real taste of what is really happening. Emergency after emergency is being declared. Or as one of my neighbors said when the weather was hot. Oh, you mean summer? The lunacy under which this Mayor and our Governor are subjecting us to under the guise of a homeless crisis and climate change makes me wonder if anyone is alert anymore. They take of the emperors clothing comes to mind. To the end of a housing crisis. I would like to see people return to personal accountability. This is one of the most expensive areas to live in. If you cannot afford it, common sense would dictate that you should evaluate where your money will support you and move to that more affordable region. Wake up people.