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Monday, Aug. 22, 2005 | San Diego City Councilman Scott Peters moved to clear up some confusion Thursday about whether the City Council had, as reported in this column last week, signed off on the city attorney’s effort to roll back what he calls illegal pension benefits.

Peters said that’s simply not true. The benefits – which constitute the largest portion of the estimated $1.7 billion shortfall in the pension system – are legal and should be paid, Peters said. He hasn’t varied from that stance, he said.

And as to whether the City Council supported City Attorney Mike Aguirre’s endeavor to become the legal counsel for the beleaguered pension board?

Also not true, Peters said.

But then he confirmed that the council did authorize Aguirre to pursue legal actions in court that might lead to both a roll back of the allegedly “illegal” benefits and a new chair for Aguirre at the pension board.

Howzat?

Yes, what follows below is a dreadful nuance soup with “clarifications,” “modifications” and “fine distinctions” boiling over the side. If you don’t have the stomach for it, you better not continue.

For the rest of you, let’s just jump right in.

On Aug. 9 just before the City Council broke its meeting to go to lunch (at 1 hour, 43 minutes into the archived video on the city’s Web site – for the really interested), Assistant City Attorney Les Girard made this announcement:

“Last week in closed session, by a unanimous vote, the City Council authorized the city attorney to pursue a modified cross complaint in the action of SDCERS v. the city of San Diego and City Attorney Michael Aguirre.”

That legal action, of course, is in response to the lawsuit that the pension board filed against the city seeking a ruling about whether benefits are legal or not. Aguirre argues and will argue that they are not and his cross filing seeks both a roll back of the illegal benefits and for a judge to affirm that Aguirre should be the attorney for the pension board.

So, it would have been amazing news if the council had somehow signed on to that effort.

We wanted clarification.

After all, it’s like employee union attorney Ann Smith told us, “To imagine that an issue of this magnitude would get such an abbreviated report is unbelievably ironic given the amount of lip service that has been paid to the notion of open government and transparency lately.”

In an interview Aug. 12, Aguirre said that the council had “joined the city attorney” in his legal pursuits against the pension board on the condition that he drop his contention that individuals named in the suit be held personally liable for their actions. That was how the complaint was “modified,” Aguirre said.

“This is an area where the City Council has chosen to support the city attorney,” he said.

He reaffirmed his statements last week.

But relations among the city leaders have apparently deteriorated so badly that they can’t even agree on what official actions they have taken.

Deputy Mayor Toni Atkins released a one-line reaction.

“The Council took no action nor a position on benefits being legal or illegal nor allowing the City Attorney to be counsel for the [San Diego City Employees’ Retirement System] board,” Atkins said.

Since it’s the only statement we have from her on this, we have to take each word for what its worth.

Let’s see that again: “The Council took no action nor a position on benefits being legal or illegal.”

So what did they do? Why did Les Girard announce in an open council session that “the City Council authorized the city attorney to pursue a modified cross complaint …”

Is that not an “action”?

Atkins’ colleague, Councilman Scott Peters, acknowledges that the council took an action, just not an action with the impact Aguirre describes.

Here’s Peters’ take.

“…the City Council has authorized the city attorney to allege illegality in his name only,” Peters wrote (emphasis added) in a memorandum to Aguirre disputing language Aguirre uses in court documents.

Peters made his case to Voice of San Diego Thursday.

“No one has signed on to his view that the benefits are illegal. He has been authorized to make that argument in his own name but not on behalf of the City Council or the City of San Diego,” Peters said. “I would never have voted to authorize him to litigate this illegality issue if the retirement board hadn’t brought it up.”

Peters said the authorization the council granted Aguirre “in no way” signifies official City Council support for Aguirre’s legal maneuver.

Isn’t it, however, a bit more supportive than, say, not authorizing him?

Peters explained that, in this instance, it’s the retirement board’s fault. The pension system, in July, filed a complaint asking a judge to determine if – in light of Aguirre’s blistering investigative reports – benefits it was paying out were illegal or not.

The pension board had also filed a lawsuit against Aguirre after he tried to take over the attorney chair at the agency.

“The City Council does not agree that Aguirre can be the attorney for the retirement system but the City Council is willing to let the retirement board and city attorney duke it out over these two issues,” Peters said.

Apparently, from what we can tell, this means that the council has authorized Aguirre to spend city resources and pursue everything he wants without them having to attach their names to it. Does that mean they get it both ways? The council members can tell anxious city employees that they don’t support Aguirre’s claims but at the same time they can spend city money asking a court whether those pension benefits in question are legal?

It’s more nuanced than that, Peters said.

He said he believes without question that the employees’ pension benefits are legal.

“But I didn’t ask the retirement board to sue us either,” Peters said. “The retirement board has said they want to know the answer to the question of whether those benefits are legal. Both mayoral candidates say they want to know the answer to that question as well. We determined that the only way to get that question behind us is to get a court to decide.”

And the only way to do that was to “authorize” Aguirre’s legal action.

If, after downing that whole bowl of nuance soup, you understand it, drop us a line.

Scott Lewis is a frequent contributor to Voice of San Diego. You can e-mail him at smikelewis@comcast.net with your thoughts, ideas, tips or personal stories.

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