By Arturo Castañares
A federal lawsuit filed by a local reporter against the City of San Diego alleging civil rights violations and defamation will soon lead to the disclosure of yet-unnamed sources who provided him information about a controversial building deal that has now turned into one of San Diego’s worst political and financial scandals.
Dorian Hargrove, a reporter with NBC 7 San Diego, published a news story on September 3, 2020, using a leaked legal memo that included a footnote from lawyers investigating the City’s acquisition of the 101 Ash St building, saying the lawyers were “unable to obtain the City Attorney’s approval to interview Mr. Gloria,” referring to Todd Gloria who was on the City Council at the time the building deal was approved in late 2016.
The story did not name any sources connected to the disclosure of the document.
City Attorney Mara Elliott and Todd Gloria disputed the authenticity of the memo when the story was published which led to the story quickly being retracted by NBC and Hargrove then being disciplined and his reporting duties restricted.
Both Elliott and Gloria were in election campaigns at the time and both made comments that someone was using the “fabricated” footnote to sway the election.
Hargrove is now suing the City of San Diego, City Attorney Mara Elliott, and Deputy City Attorney John Hemmerling for civil rights violations, defamation, negligent and intentional interference with prospective economic advantage, and intentional infliction of emotional distress for having claimed that Hargrove fabricated the footnote without producing any evidence to prove the memo was not authentic. Elliott and Hemmerling were each named in both their official and personal capacities.
Hargrove maintains he had an anonymous source that provided the memo, as well as a reliable and known source within the City of San Diego that he believed corroborated the document but then later retracted the confirmation.
Discovery responses and depositions in the case will soon reveal the sources who provided information, emails, text messages, and documents to Hargrove used in his reporting about the building deal and, specifically, the disputed memo. Cell phone records will also document multiple calls between Hargrove and several sources.
Hargrove’s lawsuit claims he “had a number of confidential sources at the time inside the City of San Diego” who provided accurate information that was not disputed by City officials until the footnote controversy. Hargrove relied on the credibility of those sources as the foundation for several stories.
THE MEMO FOOTNOTE
The September 3, 2020, NBC news story included references to a footnote in a City internal legal memo, known as Footnote 15, that stated that the outside lawyers were still seeking to interview key individuals who had been involved in approving the agreement -specifically mentioning former Councilman Todd Gloria- but that the City Attorney’s office had not approved the interview.
“Mr. Gloria had previously been skeptical about the lease-to-own structure when it was used for a prior acquisition, but was supportive of the 101 Ash transaction when it came to the Committee and made the Council motion to approve the Lease Agreement,” the NBC story quoted from the now-disputed footnote. “However, we were unable to obtain the City Attorney’s approval to interview Mr. Gloria or his staff (all of whom are no longer in the employ of the City).”
The memo was written by lawyers from Burke, Williams & Sorensen LLP, an outside law firm hired by the City to investigate the acquisition of the building that by that time had been evacuated due to exposure to dangerous asbestos material.
Todd Gloria was on the City Council at the time the 101 Ash deal was approved in 2016, but he was serving in the California State Assembly at the time the memo was written in 2020. Gloria was later elected as San Diego Mayor in November 2020.
In response to Hargrove’s news reporting, Elliott and Gloria both called the footnote “fabricated” and Elliott specifically said the footnote was “completely false” in a campaign endorsement interview with the San Diego Union-Tribune editorial board.
On September 6, 2020, one of the Burke lawyers who wrote the memo issued a letter to NBC stating that “Footnote 15 is completely fabricated” and that it “was not included in our Memorandum to the City.” The letter, signed by Brian A. Pierik, asked NBC to “immediately correct the record.”
Pierik attached two sworn statements, one from himself and another from the other lawyer who wrote the memo, Mark J. Austin, stating that “Footnote 15 as it appeared and was presented” in the NBC article “is completely and totally fabricated”. Both statements were signed under penalty of perjury, but were not submitted as part of any official legal proceeding.
Gloria, who at the time was a candidate for Mayor, issued a statement that “NBC7 and the city have a responsibility to determine who is responsible for this deceptive act” and demanded an investigation into the memo.
“So today I’m asking the city to investigate every individual who had access to the original document. We’re also calling on NBC7 to be transparent about their source and all that happened leading up to the publication of their fraudulent story,” Gloria told KPBS in a September 11, 2020 story.
No investigation was initiated to confirm the authenticity of the disputed memo and no source has been exposed publicly.
But, the City Attorney’s office did send Hargrove a letter titled “Criminal Investigation” indicating they had “initiated a criminal investigation” because the “unauthorized release of confidential documents and information is a criminal violation of the City’s Ethics Ordinance, the Government Code, the Penal Code, and if received or sent via electronic method, a violation of state and federal electronic communications acts.”
That letter was signed by Assistant City Attorney John Hemmerling, the head of the Criminal Division of the City Attorney’s Office which prosecutes misdemeanor criminal cases. Hemmerling, a lawyer and former San Diego Police Department officer, is now a candidate for San Diego Sheriff in next year’s election.
The day after the Criminal Investigation letter was sent to Hargrove, Elliott herself retracted the letter and clarified that she has never and will never prosecute a journalist.
“The letter my office sent earlier to an NBC reporter never should have been sent,” Elliott posted on Twitter. “My office has never – and will never – prosecute a journalist or compel them to reveal confidential sources.”
Hargrove confirmed that Elliott called him directly to clarify he was not under investigation. Elliott claimed the Criminal Investigation letter was a “form letter” meant for potential witnesses, but not for reporters.
Then on September 21, 2020, NBC publicly retracted the portion of the story related to the disputed footnote and announced that both Hargrove and his producer would be disciplined.
“NBC 7 is retracting a previously reported story that relied in part on a document that was “fabricated,” according to the law firm that wrote the primary report. NBC 7 chose to retract this story and explain our further reporting for transparency. We apologize for the error and will continue our reporting into who sent NBC 7 a doctored report.”
NBC also suspended Hargrove and his producer, Tom Jones, “through November 3, to prevent any potential conflicts of interest related to the reporting on candidates running for local office and on matters related to the City. In addition, the employees will not cover issues related to City Hall when they return to the station.”
According to Hargrove’s complaint, the retraction of his article and restrictions damaged his reputation and career, causing economic damages and emotional distress.
LA PRENSA FILED LAWSUIT FOR MEMOS
In the letter from Burke lawyer Brian A. Pierik to NBC on September 6, 2020, he stated that Footnote 15 was not “in our Memorandum to the City in any of the text of the Memorandum or in any footnotes in the Memorandum,” suggesting that only one version of the memo was delivered to the City. Another Burke lawyer confirmed to NBC that there was “only one version of the June 17, 2020 memo sent to the city of San Diego.”
La Prensa San Diego filed a California Public Records Act request on September 16, 2020, for all “writings (including emails and email attachments) that contain or include what is commonly known as “footnote 15” in one or more memorandums from Burke, Williams, & Sorensen LLP.” The City’s response indicated that documents were being withheld under exemptions for “Attorney Client Privilege” and “Attorney Work Product Doctrine”.
In a separate California Public Records Act request filed by another person just a few weeks after the NBC story was retracted, the City revealed that they have “original or edited” versions of the Burke memo, but would not release the documents because they are protected by attorney-client and/or attorney work-product privileges.
“Per City Attorney’s Office, the actual memo/report provided by Burke Williams Sorenson is privileged in its original or edited version. Please keep this in mind as you review any responsive records for this request,” an internal staff message revealed in the CPRA request. Those internal comments are not usually released to the public.
The revelation that more than one version of the Burke memo existed prompted La Prensa San Diego to file a lawsuit seeking the disclosure of the earlier versions of the memo containing the disputed footnote.
The lawsuit, filed on February 22, 2021, seeks, at minimum, to “ascertain the dates, author(s), and recipient(s) of the original and edited versions of the [Burke Williams Sorensen] investigatory reports” and for the City to “promptly and fully comply with the CPRA, the California Constitution, the common law, and all other applicable laws.“
La Prensa San Diego will ask the case judge to review all available versions of the memo to determine if the disputed footnote is contained in any earlier draft of the document.
The case is still pending and discovery requests are ongoing.
Hargrove’s lawsuit, filed in federal US District Court, claims violations of his 1st and 4th Constitutional Amendment rights covered by the broad protections of US Code Section 1983 of the Civil Rights Act of 1871 which allows for a federal cause of action against government officials who deprive private citizens of their constitutional rights under what is known as “color of authority” or the misuse of their office.
Violations under Section 1983 can find individuals in government positions personally liable when they deprive citizens of “any rights, privileges or immunities secured by the Constitution and laws.”
These civil rights protections were first passed by Congress in 1871 to give substantive freedom to emancipated slaves after the Civil War. An 1873 case detailed that the laws were passed to protect “the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him.”
Section 1983 cases must prove that the civil rights violations were carried out by an individual who acted under color of state law, defined in a 1964 case as the “action of one who possesses state authority and purports to act according to that authority is state action even if not authorized under state law, and may violate the equal protection clause.” Hargrove claims Elliott and Hemmerling acted in their official capacities within the City Attorney’s office, as well as in their personal capacities.
Hargrove’s lawsuit also claims state law violations for defamation for the reputational harm he has suffered connected to the retracted story and claims he fabricated the footnote, negligent and intentional interference with prospective economic advantage for the damage to his employment with NBC, and intentional infliction of emotional distress for the personal impacts the situation has caused him.
Discovery requests are continuing in the case and his attorney, Lawrence Shea, expects depositions of Hargrove and other witnesses will be scheduled soon. Lawyer Edward Susolik of the law firm of Callahan & Blaine in Santa Ana, CA, is also listed on the lawsuit.
Hargrove is seeking general and special damages, economic losses, and reimbursement of attorneys fees and costs for the suit.