So, sue me!

- Photo by David Rolland

Liam Dillon, the earnest city-government reporter for voiceofsandiego.org, has been fighting a futile battle on Twitter lately. He’s been trying to get Mayor Jerry Sanders to articulate an “if this, then therefore that” statement about who pays for trash service in San Diego and who doesn’t. Sanders’ gatekeepers, Alex Roth and Rachel Laing, aren’t having any of it; instead, they’ve led Dillon in a circular, comical conversation that seems always to return to Roth saying something like “What was your question again, Liam?”

Dillon’s question goes like this: Sanders has ended free trash pickup for some 14,000 households on private streets because there are others who live on private streets who don’t get free city trash service. Leaving aside the fact that he really needs the money, Sanders’ stated reason was that it was unfair. So, if that’s unfair, why won’t Sanders come out and say, in full-throated voice, that the same unfairness exists on public streets, where people who live in single-family homes get the service but people who live in apartments and condos don’t?

It’s exactly the right question to ask—CityBeat’s been complaining about the unfairness for years. When pressed, Roth and Laing essentially argue that there would be no point to Sanders stating the obvious—doing so wouldn’t change anything.

The inequity exists because of the voter-approved “People’s Ordinance.” Passed in 1919 and amended in 1981 and 1986, it doesn’t allow the city to charge for trash service on public streets where city trucks can access garbage cans. It doesn’t apply to most multi-unit buildings because their dumpsters aren’t in the public right-of-way. As a result, more than 200,000 households—nearly 42 percent of the population—have to pay for a service the rest get for free.

We long ago urged Sanders to begin campaigning for a repeal of the People’s Ordinance, not only to make things fairer but also because it would raise upwards of $30 million in badly needed annual revenue. He refused, apparently reasoning that no matter how strong his leadership might have been, voters would never overturn the law. We’ll never know, because he wouldn’t try—even though he had nothing to lose because he wasn’t going to run for office after his 2008 reelection.

So, Sanders is, unfortunately, a lost cause. However, it seems, City attorney Jan Goldsmith is not. On Monday, as City Councilmember Carl DeMaio’s attempt to stop Sanders from at least equalizing services on private streets was failing (yet still allowing DeMaio to pander shamelessly to voters in 14,000 households), Goldsmith talked about the legal issues surrounding the city’s unfair trash-collection system. He almost seemed to be inviting folks to sue over the People’s Ordinance. There are two potential legal issues, he said: equal protection under the law and gifts of public funds.

On the matter of fairness, he noted that people who live in houses get a service that people who live in apartments do not. “If we had applied this standard to police and fire,” he said, “we’d only be giving police and fire services to people who live in single-family homes. Would we want to do that? Would we legally be able to do that? Absolutely not.”

And we believe Goldsmith’s point about gifts of public funds was that in order for a government agency to give public money (in this case by providing free service) to one group and not another, the agency needs to be getting something in return from the group that’s getting the gift.

Goldsmith released a legal opinion last summer that noted, among many other things, that the 42 percent of the population who have to pay private haulers for trash service in effect subsidize the service that the other 58 percent get free from the city. It also noted that of all the California cities with more than 7,000 people, only San Diego, El Monte and Newport Beach don’t charge for trash pickup.

And, about the oft-stated argument that the 58-percenters pay for the service in the form of property taxes, Goldsmith’s opinion noted that in each of the last seven years, the money the city gets from property taxes doesn’t even equal the budget of the police department. (And if charging for service means double-taxing, aren’t the 42-percenters being double-taxed now?)

We hope someone eventually sues. In the meantime, as the 2012 mayoral election approaches, we’ll be demanding an answer from all candidates on the question that Liam Dillon tried to get Sanders to answer. We trust that Dillon will be right there with us.   


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