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Friday, October 07, 2005 | The City Council on Monday will weigh two proposals regarding a lawsuit filed by City Attorney Mike Aguirre that targets three former elected officials whose pension benefits have drawn fire from City Attorney Mike Aguirre.

One option proposed by City Manager Lamont Ewell is to pay for lawyers defending former Mayor Dick Murphy and two recently convicted councilmen, who Aguirre says had a conflict of interest when they worked on enhancing benefits and easing requirements for elected officials’ pensions. The other is to dismiss the suit altogether.

Aguirre said he is still studying whether the city should pay the legal defense costs for Murphy and former Councilmen Michael Zucchet and Ralph Inzunza, but he said Ewell’s alternative – canceling the civil suit – is irrelevant, and that he would carry on with the suit even if the council orders it dismissed.

“Their efforts to curtail the suit are an obstruction of justice. I would ignore it,” he said.

Several council members have said that the council is required by the City Charter to approve any suit filed in the city of San Diego’s name, while Aguirre and at least one council member claim the charter grants Aguirre the ability to bring suit without the council’s say-so.

Councilman Scott Peters said that he was uncertain what would happen if Aguirre carried on with the case targeting Murphy, Zucchet and Inzunza.

“I don’t know what’s going to happen,” he said. “He’s obviously picking on his political opponents and people who were convicted, who are easy targets.”

Murphy stepped down from the mayor’s post in July under mounting pressure that the city’s woes, which included probes by several agencies into the city’s books and a pension system deficit of at least $1.37 billion, were out of control. Zucchet and Inzunza resigned the following week after being found guilty of corruption charges.

All three have officially retired from the city and are now drawing pension checks from the beleaguered San Diego City Employees’ Retirement System. Aguirre is suing the three former officials for benefits he believes were created illegally. If successful, Aguirre believes he can wipe the balance sheet clean of the same benefits enhancements and eased requirements enjoyed by other elected officials, including current council members.

Read more about Aguirre’s suit.

Among the charges levied is that the three defendants violated a state conflict-of-interest law known as the Political Reform Act of 1974. A Superior Court judge ruled Friday that a case based on the same state law that was lodged against former and current city and pension officials who benefited from benefit enhancements in 1996 and 2002 could not stand because the conflict of determining one’s pension was in their job description and, therefore, inevitable.

Ewell believes the council should be able to decide whether Judge Charles Wickersham’s decision applies to their three former colleagues, city spokeswoman Gina Lew said.

“Based on this court ruling, the City Council could consider directing the City

Aguirre’s suit against Murphy, Zucchet and Inzunza includes more causes for action than just the Political Reform Act, such as a different state conflict-of-interest provision that does not explicitly include the pension exemption covered in the Political Reform Act, as well as city and state laws Aguirre said mandate that a funding source to cover the costs of benefit enhancements must be identified.

Additionally, Aguirre said he is appealing Wickersham’s decision because the pension benefits created in 1996 and 2002 were crafted without a funding source required by the state constitution.

Peters said he wasn’t sure how he would vote, but at the very least he was going to push to provide defense for his three former colleagues.

“How can you not give a defense to them?” he said.

Councilwoman Donna Frye backed Aguirre, saying it was the city attorney’s decision whether or not a legal case should be pursued.

“He’s the city attorney, not me,” she said.

Frye also said she felt Ewell has been overstepping his bounds into the city’s legal business based on his hiring and handling of various attorneys and consultants. She and Councilman Brian Maienschein killed a proposal to provide legal defense to the individuals named in the Political Reform Act case.

Steven Strauss, an attorney for Procopio Cory Hargreaves & Savtich, advised the council in August to pay the legal costs for the six municipal employees named in Aguirre’s lawsuit, citing state law and a council resolution that obligates the city to do so. Frye and Maienschein voted against the measure, asserting that the employees did not act “in good faith” and fell through a loophole in the state law.

Strauss now represents Murphy, Zucchet and Inzunza, and wrote a letter to Ewell last Friday urging the city to provide funding for his clients’ defense.

Peters said that failing to provide defense for city employees being sued by the city attorney was “irresponsible.”

“We’re going to end up paying for them later anyway,” he said.

Ewell and the other council members did not comment despite requests to do so.

As it stands, Murphy’s annual retirement checks total $49,560 and Zucchet and Inzunza earn yearly pensions of $13,441 and $20,895, respectively, plus cost-of-living increases. If Aguirre is successful, Murphy and Zucchet would not receive a dime and Inzunza would be docked about $7,000 annually, according to a Voice of San Diego analysis.

View a complete analysis of how much former and current city officials could lose in retiree pay if Aguirre’s suits are successful (PDF).

evan.mclaughlin@voiceofsandiego.org

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