Thursday, August 04, 2005 | Open wide. City Auditor John Torell will present public budget updates to the City Council on a monthly basis beginning Monday, two council members said.

“These updates will provide the council with the information we need to make informed decisions,” Deputy Mayor Toni Atkins said as she unveiled the plan Wednesday along with Councilwoman Donna Frye. “It will also keep the public up-to-date and they have a right to know about the financial status of our city.”

Frye said the current budget process leaves little room for council input or public scrutiny, and that there exists a city charter provision that states that the city auditor should make a financial summary of each city department available every month.

Budgeting is “pretty much determined in advance to the city council having a lot of input into it,” Frye said. “That’s not the way it’s supposed to work and its not the way the municipal code or city charter is supposed to work, so this will correct that.”

Currently, a budget is proposed by the city manager in the spring and the council revises the manager’s recommendation in public workshops before approving it before June 30. A yearly internal audit of the past fiscal year is presented in August and the city manager makes adjustments to the budget throughout the year.

City Manager Lamont Ewell said he welcomes the public presentations.

“I think it’s a great idea,” he said. “In the past, that part of the charter had not been requested by the council.”

Frye said that she and Atkins had been asking for this for over a year, but that it was never added to council meeting dockets.

Torell said he provided these updates regularly for the county of Santa Barbara, where he worked up until being hired by the city of San Diego, and that he will also use Monday’s meeting to project his vision for the office.

The regular updates will help keep the city’s fiscal planners and its day-to-day managers accountable, he said.

“We want to do this to give the council an idea of how efficiently departments are being run and how accurate the budgeting was,” Torell said.

Bill Maheu, the police department’s executive assistant chief of police operations, said he welcomes the council members’ aspirations to better track expenses such as police overtime costs.

“Our overtime costs are very well-tracked,” he said. “Nobody works in this department without pre-approval.”

Johnnie Perkins, governmental affairs director for San Diego City Firefighters, said he is also in favor of regular reviews.

“We think any public effort to have a dialogue or debate about where the city spends its money is a fantastic idea,” he said. “We’re more than happy to discuss firefighting resources.”

Frye said enacting the plan was a testament to Atkins in handling her newly anointed leadership position.

“One memo, one phone call, and it’s done. That is how the city is going to be working together.”

Surfing for turf. City Attorney Mike Aguirre’s contention that it was illegal to ask an outside attorney whether it should pay the legal bills of defendants in Aguirre-initiated suits continued Wednesday as the city attorney issued non-binding citations to two city officials.

Read more about the council’s decision here.

Aguirre accused City Manager Lamont Ewell and Councilman Scott Peters of “usurping” the authority granted to the city attorney in the charter. Ewell and Peters both chalked the notices up to being threats against them for disagreeing with Aguirre.

The city attorney argued that Ewell went outside his authority to hire Procopio Cory Hergreaves & Savitch and, on an earlier occasion, Aguirre nemesis Paul Pfingst. Peters, Aguirre continued, is offering the council legal advice when he is both not the city attorney and not an active member of the state bar.

“I’m not advising the council on legal issues,” Peters said. “I go to work and use the best talents and experience that I have. Part of that is 16 years practicing law. Certainly I ask a lot of questions about the legal advice that we get.”

Peters said that Aguirre had made a similar threat to him in closed session, and that he responded by saying that he would not be intimidated. The city’s time could be spent more productively, Peters said.

Ewell struck back, challenging Aguirre to seek council approval to take the matter to court if he is so confident that he and not the city attorney is violating his duties under the charter.

“If he believes that I’m in violation of charter section 40, there are remedies to that,” he said. “First, he has to have the approval of the council to go into court; second, I will meet him there on the courthouse steps, and then we can walk in together and we can let a competent court of law determine that.”

Ewell said he believes Aguirre is overstepping his authority as city attorney by attempting to intervene in legislative and administrative matters, the jurisdictions of the City Council and manger, respectively.

“Your actions are inappropriate and cross the clear lines of authority vested in the city attorney under the charter,” he wrote in a response Wednesday. “You will cease your efforts to control the conduct of my deputies and employees under my supervision.”

Aguirre maintained that he was voted in by the city’s voters to give legal advice, not outside attorneys he believes were hired only because they told the council what they wanted to hear.

“You don’t comply with law by finding an attorney who tells you what you want to hear,” he said.

Shaun Martin, a professor at the University of San Diego School of Law, said the citations were more symbolic than legal.

“The most that can be said is the city manager has done something against the spirit of some statute, but to claim that this is a crime or citable offense is an incredibly bold move on part of the city attorney and is fairly unprecedented,” Martin said. “There’s also a public perception problem because it will look like the city attorney is using the powers of citation as a turf battle, which is basically what this is.”

The cost of the Procopio firm’s work is unknown at the time, city spokeswoman Gina Lew said. The money that will be used to pay for the outside legal services will be drawn from the city’s liability fund, she said.

The next suit? It is still widely believed, a day after the city rejected paying the legal costs for the city employees and pension trustees named in Aguirre’s lawsuits, that the city will be sued for failing to do so.

Nick Hanna, the attorney representing former human resources director Cathy Lexin, said that he and his client are weighing their options, but asserted Wednesday that the City Council’s refusal to provide legal aid for city employees and pension trustees is indeed illegal.

“It’s clearly a breach of the City Council’s own resolution and, in our view, a violation of state law,” Hanna said.

The council was advised by an outside attorney to not provide legal defense for two defendants, retirement administrator Lawrence Grissom and the system’s attorney, Lori Chapin, because they do not qualify for indemnification from the city. Rebecca Wilson, a spokeswoman for the retirement system, said Wednesday that it was unclear whether the San Diego City Employees’ Retirement System would pick up the tab for Grissom and Chapin’s defense costs.

Lexin, Grissom and Chapin are among eight pension trustees and administrators named in a suit filed last month that attempts to halt retirement benefits Aguirre believes are illegal and central to the system’s $1.37 billion-plus deficit. Another suit, also filed in July, attempts to put management of SDCERS into the control of a court-appointed expert, a procedure called receivership.

Attorneys representing other defendants did not return calls seeking comment, but lawyers familiar with the situation but without direct interests in the two cases filed against former and current pension and city officials said the city is vulnerable to being sued.

“Those individuals will go ahead and their attorneys will file claims with the city that they will provide for defense and indemnification,” said Bill Kay, a Bay Area lawyer who was hired by the city of San Diego to aid in the most recent round of labor negotiations.

Kay said the council’s decision not to provide legal aid is quite common among public agencies. An agency can choose not to indemnify employees who would otherwise be covered by state law if it is found that they were operating outside the scope of their employed duties or acted fraudulently, he said.

“It’s an issue that cities and counties and school districts have to exercise every time it turns out there’s a question whether the employees were within the scope of personal responsibility,” he said.

– By EVAN McLAUGHLIN, Voice Staff Writer

Please contact Evan McLaughlin directly at

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