Wednesday, October 12, 2005 | Almost 100 San Diegans joined the City Council Tuesday to hear a panel of legal ethics experts assess the range and limits of the elected city attorney after nearly a year of dispute between maverick officeholder Mike Aguirre and the council members who believe he has curtailed their powers.
The hours-long debate did not clear up the dispute that was spawned 10 months ago when Aguirre was elected, but it did at least prove one thing: Aguirre’s authority is truly undetermined.
“There was simply a hope that we would get further in clarifying the parameters, the roles,” Deputy Mayor Toni Atkins said. “Given some of the comments today, I’m not sure we gained a lot of ground.”
City council members and dozens of citizens chimed in with the impressions, judgments and emotions they held for the litigious Aguirre, whose allegations of widespread corruption at City Hall and legal actions without council approval have drawn ire inside and outside the municipal government.
Aguirre, on the other hand, has reiterated since his campaign for office last year that he would command the city’s legal department with the interest of the people first, not the council.
The council’s public discussion Tuesday did not culminate the controversy swirling around the city attorney, but rather it was another chapter in the city’s epic struggle for how to best solve the city’s legal and financial woes.
In fact, the very initiation of the public discussion by Atkins sparked a new clash with Aguirre, who believes there was a violation of the state’s open meeting law when Los Angeles attorney Robert Kehr was hired “by the San Diego City Council,” as his engagement letter states.
When Atkins rebuffed that claim as an error, saying that she directed City Manager Lamont Ewell to hire Kehr, Executive Assistant City Attorney Don McGrath said he believed the deputy mayor violated the City Charter section prohibiting council members or the mayor from individually coercing the city to hire someone.
Atkins denied any violations. Ewell was not available for comment.
Aguirre did not attend the hearing, but held two media sessions throughout the day. He said he thought he would stir up discussion over the personalities of the conflicting parties and stray from the issues had he appeared at the special meeting.
The discussions, which ran for more than four hours, featured the testimony of three experts in the field of professional rules of conduct for attorneys. Kehr argued that “the City Attorney has no general authority to act independently of the City Council.”
The centerpiece of Kehr’s opinion was a state Supreme Court opinion that stated that California’s attorney general may act only subject to the governor, the state’s chief executive. Kehr argued that, because an organization such as the city doesn’t speak on its own, the attorney must get his direction from the city’s chief executive, which is the City Council through the city manager.
Attorneys Ellen Peck of Escondido and Richard Solomon of Santa Barbara vouched for Aguirre’s claim that the City Charter authorizes the city attorney to have sole discretion over the city’s legal affairs. They said that specific charter language that was enacted by voters in 1931 was when the city “spoke” to the effect of how the government will proceed legally. They said that after the 1931 vote to create an independent City Attorney’s Office, the city attorney would be empowered to act independently.
The rules of conduct for an elected city attorney are different than those of a private attorney, Peck said.
At the end of the day, the “extremely preliminary comments” by the three hired hands resulted in a symposium featuring emotionally charged public comment from Aguirre’s opponents and supporters alike, the experts’ nuanced answers to the hypothetical questions posed by inquiring council members, and – above all – more uncertainty about how the city government will function in the future.
“We still have differing opinions from professionals who work in this environment every day,” Atkins said. “I should have known it wouldn’t be that simple.”
Atkins said the discussion was a healthy one to have, and framed the debate as one pertaining to the roles of city officials. The discussion was a priority given that the city government’s structure is changing to a strong-mayor form of governance in January, and that she wanted to clarify the attorney-client relationship in the meantime.
Several on council – Councilmen Scott Peters and Jim Madaffer are the most visible among the six remaining members – believe Aguirre has acted inappropriately by filing lawsuits attempting to nullify enhancement to employees’ pension benefits, proposing a settlement with federal prosecutors, and recently hinting that he may sue several council members and city administrators – without their approval up front.
“I feel like the city attorney is running around like a one-man insane asylum,” Madaffer said.
Tuesday’s discussion came a day after the outside attorney hired to represent Madaffer before the Securities and Exchange Commission condemned Aguirre in a letter on the councilman’s behalf. A letter from Ewell’s attorney claiming Aguirre has wrongly alleged that the city manager deceived others about the pension system’s underfunding published Monday in The San Diego Union-Tribune, a local newspaper.
“The city is clearly at war with itself,” Madaffer said.
Over the last 10 months, there have been several issues where Aguirre, 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 citations to officials he believed were “usurping” his authority. He argued that City Manager Lamont Ewell went outside his authority to hire Procopio Cory Hargreaves & 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 investigating 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.
Councilwoman Donna Frye also attributed the conflicts between Aguirre and his detractors as being mainly political. Frye on Monday announced she will work with the city attorney to draft an ordinance that, if passed by the council, would start paying pension benefits at rates reduced to exclude improvements that Aguirre and Frye say were made illegally.
It’s unclear where the city will proceed from here on the topic discussed Tuesday, but both Frye and Councilman Tony Young appear to be at least complicit with Aguirre’s interpretation of the city attorney’s broad definition of authorities vested to him.
Kehr was retained for less than $5,000 plus expenses, according to his engagement letter. Peck is regularly retained by the city attorney to advise his office on legal ethics at a rate of $175 per hour, and Solomon said that his corporate rate is $380 hourly but that he would charge less because he was working with a government. Letters of engagement for Peak and Solomon were not provided by the City Attorney’s Office as of press time.
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