Saturday, October 08, 2005 | A private attorney specializing in the professional rules of conduct for lawyers will present Tuesday his interpretation of what the proper role of the city attorney is to the City Council, whose members have often been at odds with City Attorney Mike Aguirre since he took office 10 months ago.

Deputy Mayor Toni Atkins said Friday that she felt that clarifying the office’s role as it pertains to the various legal actions Aguirre has taken in recent months is necessary.

“There’s a real reason why we need to have that discussion, so we can have that clarity,” Atkins said at a late-afternoon press conference.

The presentation may be informative for some, but it is just another chapter in the long-simmering power struggle within the beleaguered city government.

The city attorney maintains that, when he was elected last December, the voters authorized him to head the city’s legal department on behalf of the people of San Diego. He said that this includes filing lawsuits on behalf of the city of San Diego, sending a proposal to federal investigators admitting wrongdoing by the city in hopes of settling, and hiring outside counsel to advise and represent the city of San Diego.

Atkins and other council members say they are either unsure or disagree about Aguirre’s vision for the office.

“There is a fundamental legal question regarding who decides when the city litigates, defends or settles lawsuits,” Atkins said. “By clarifying each party’s role, we can get on the same page and get down to the most important business at hand – getting the city back on track onto financially solid and responsible footing.”

Several city officials have expressed their uncertainty over Aguirre’s role, and some have plainly said that he is overstepping his bounds. The ability to bring a lawsuit, for instance, is at the discretion of the council, some say, while Aguirre believes only he has the authority to do so.

Regarding his role, Aguirre says he bases the spirit of his office on language in an election pamphlet from 1931, when the City Attorney’s Office was created. It is printed on a laminated sign that hangs behind his desk and reads: “The city attorney is to be elected by the people. This is a guarantee that the legal head of the government will be able to fearlessly protect interests of all San Diegans and not merely be an attorney appointed to carry out wishes of council or manager.”

Aguirre said he has retained an in-house ethicist and consults with an outside legal ethics expert since taking office and that these individuals have reinforced his philosophy. The city attorney also believes that Atkins is holding the presentation to draw attention away from an announcement he made this week that the deputy mayor and other city officials may be sued for their role in a 2002 agreement to raise employees’ retirement benefits without fully funding the San Diego City Employees’ Retirement System. SDCERS is currently underfunded by at least $1.37 billion.

Over the last ten months, there have been several issues where Aguirre, City Manager Lamont Ewell and some council members have disagreed on how the city should proceed with its legal affairs:

– In July, Aguirre filed a cross-complaint in the name of the city of San Diego against SDCERS, seeking to invalidate between $700 million and $800 million in benefits he alleges were illegal while also attempting to place management of the system into the hands of a court-appointed receiver. The City Council later approved the action, albeit reluctantly, in closed session Aug. 9, but several council members said it was inappropriate for Aguirre to file the cross-complaint without their initial approval.

– In August, the city attorney issued two non-binding citiations to officials he believed were “usurping” his authority. He argued that City Manager Lamont Ewell went outside his authority to hire Procopio Cory Hergreaves & Savitch to render a legal opinion, and, on an earlier occasion, Aguirre nemesis Paul Pfingst. Councilman Scott Peters, Aguirre added, was offering the council legal advice but Peters is neither the city attorney nor an active member of the state bar.

– In September, Aguirre submitted a proposed consent decree to the Securities and Exchange Commission, which has been investigated the city’s disclosure practices since February 2004. Under the proposed settlement, if approved, the city would be separated from city officials in the probe, with the city admitting that it engaged in questionable accounting and that it has worked to fix the errors. Several council members said it was inappropriate for the document to be sent to the SEC without their approval, and some still say that their vote to begin laying the groundwork for negotiations as directed by outside counsel and Aguirre is also false.

– Two weeks ago, Aguirre filed a lawsuit against former Mayor Dick Murphy and former Councilmen Michael Zucchet and Ralph Inzunza, challenging benefit increases and eased pension requirements for the three retired officials. On Monday, the council will vote whether they should direct Aguirre to dismiss the lawsuit. If directed to cancel the lawsuit, Aguirre said this week that he would ignore the council’s wishes. Read more about this conflict here.

Atkins said that her duties as San Diego’s interim mayor should include ensuring that the city has a smooth transition into the strong-mayor form of government, which voters approved last November on the same ballot as Aguirre. Effective Jan. 1, the municipal government will be restructured so that the mayor has executive powers on a day-to-day level and will also draw up the city’s annual budget.

“This confusion and acrimony cannot continue, especially as we move toward a form of government under the strong-mayor statutes,” she said. “I believe now is the time to clarify the attorney-client relationship and to move beyond the bickering.”

Atkins has presided over the council following a tumultuous week in July when Murphy resigned and Zucchet, the then-deputy mayor, along with Inzunza, stepped down days later after being found guilty on federal corruption charges. Voters will elect a new mayor Nov. 8, choosing between Councilwoman Donna Frye and former police chief Jerry Sanders.

The deputy mayor said she asked Ewell several weeks ago to hire an expert to interpret the city attorney’s function and authority as defined by the City Charter, the state bar association’s rules of professional conduct and Aguirre’s own credo about his office’s role. Robert Kehr – a Los Angeles attorney and “one of the state’s leading experts,” as Atkins said – was hired by Ewell Thursday for $5,000 or less plus expenses to study the issue and present his findings at Tuesday’s council meeting.

Aguirre will also be given equal time at the public hearing to present his view, Atkins said.

After receiving news about the scheduled discussion, Aguirre said Ewell did not have the authority to hire legal counsel without the city attorney’s advice and that the first sentence of Kehr’s engagement letter about being retained by the San Diego City Council was also inappropriate. With reporters in his office, Aguirre called Kehr and advised him that his hiring was unauthorized and that he should not accept any pay from the city of San Diego.

Please contact Evan McLaughlin directly at

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