On Aug. 1, the San Diego City Council voted to uphold a city ordinance that restricts where registered sex offenders can live. It did so against the advice of the city attorney, who warned the council the ordinance was unconstitutional and made the city vulnerable to litigation.
The next week, as expected, a lawsuit was filed seeking to force the ordinance's repeal. The city has until Sept. 27 to file a formal response.
The vote on Aug. 1 was noteworthy because another vote relating to the ordinance, taken behind closed doors, had turned out differently.
Council members first discussed the repeal of the Child Protection Act, which has not been enforced since 2009, in a closed session meeting on June 6. It was heard in closed session under a provision in the Brown Act that lets city councils discuss exposure to litigation in secret.
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The council could not vote to actually repeal the Child Protection Act in secret, so it voted to place the repeal on a future open session agenda. At least five council members had to have agreed to that action in closed session, or else the item could not have moved forward. Only four actually voted for the repeal in open session — meaning at least one council member changed their vote.
How each council member voted in closed session is unclear because, according to the City Attorney's Office, disclosure of the vote was not required by the Brown Act.
Council members Lorie Zapf, Chris Ward, Chris Cate, David Alvarez and Georgette Gomez all voted against repealing the Child Protection Act on Aug. 1. Alvarez was absent from the closed session meeting on June 6, and none of the other four council members agreed to disclose their closed session votes.
Councilwoman Barbara Bry's office said her closed session vote was in favor of placing the repeal on an open session agenda. Bry also voted to repeal the ordinance.
A spokesman for Councilman Scott Sherman, who also voted to repeal, said: "The comments he made during open session makes it pretty clear" how he voted in closed session.
"This is one of those tough decisions, because I think of optics," Sherman said in the Aug. 1 council meeting. "But at the end of the day, if we don't repeal this ordinance, it stays on the books, we get sued, it costs hundreds of thousands of dollars in a lawsuit and we get forced to repeal our ordinance anyway."
The other two council members who voted to repeal the ordinance, Myrtle Cole and Mark Kersey, declined to answer how they voted in closed session.
The city's Child Protection Act has a long history of litigation. When the council passed it in 2008, Deputy City Attorney Mary Nuesca warned them of "significant legal issues" that could result in a lawsuit. Not long thereafter, a deputy public defender sued the city over a portion of the ordinance arguing it was unconstitutional and a waste of taxpayer money.
The section of the ordinance at issue in that lawsuit was a ban on registered sex offenders being within 300 feet of schools, playgrounds and other child-oriented sites. The section was repealed by the council in 2011 as part of a settlement. The rest of the ordinance, which bans sex offenders from living within 2,000 feet of those same locations, has remained on the books and is now the subject of the most recent lawsuit.
Nuesca issued another warning to council members when they passed the Child Protection Act in 2008: A key assumption in the ordinance — that sex offenders "are the least likely to be cured and the most likely to reoffend" — was contradicted by data compiled by the California Sex Offender Management Board.
The board wrote in a report released one month before the ordinance's passage: "Research studies over the past two decades have consistently indicated that recidivism rates for sex offenders are, in reality, lower than the re-offense rates for most other types of offenders."
