Quite a Scene at Court Thursday

Thursday, February 16, 2006 | City Attorney Mike Aguirre normally would have better things to do than show up to argue at one of the many pre-trial hearings of one of the many legal fights he’s embroiled in.

But Thursday he was at court in the flesh.

The entire City Hall press corps showed up to watch. And all of Aguirre’s deputies came to watch their boss in the ring.

Then Aguirre spoke. The first thing he told the judge was that, if the judge would open his mind, Aguirre would get inside of it and change it.

Because the judge was plain wrong. Aguirre had said so the day before. In fact, Aguirre had said it was more extreme than that. He had told The San Diego Union Tribune that the judge had committed the “the biggest mistake that I’ve seen in 30 years of practicing law.”

It takes cojones to tell a judge to have an open mind after you’ve told the world the night before that that same judge had been such a fool.

It’s Aguirre’s way, though. We’re all getting used to it.

I know, you’re just dying for a bit of background.

Of all the big fights Aguirre has picked in his incredibly controversial reign as city attorney, the one we’re talking about is pretty much the biggest. That is, if you’re using a scale based on Total Rancor Produced, or TRP.

Aguirre wants to be the legal counsel to the city’s embattled pension system. What does that mean?

It’s simple.

The city of San Diego has an employee pension system. Employees have money taken out of their checks to fund it. The city makes an annual payment to it as well. And it invests the money so that supposedly it will have enough in the end to give the employees a nice retirement featherbed to fall on when they step out the door of the great City Hall train.

The San Diego City Employees’ Retirement System administers this system. It (at times) collects the money from both the employees and the city. And it invests that money (if you listen to them, SDCERS investors are the greatest players that have ever touched stocks in the history of the world. If you spend a day with them, you’ll walk away convinced that all they have to do is look at a mound of cash and it doubles in size).

For years, SDCERS officials used city stationery. Their business cards had city of San Diego logos.

And for 70 years up until the late 1990s, attorneys from the city oversaw the legal advice that the SDCERS officials received.

Then, for whatever reason, former City Attorney Casey Gwinn decided to abdicate that responsibility and allow the pension system’s attorney to be independent of his office. That attorney was Lori Chapin.

Lori’s worst nightmare came true on Nov. 2, 2004 when Mike Aguirre won Gwinn’s seat as city attorney. Only a few days after taking office, Aguirre sent a letter to her and the rest of the gang at the pension system that he was now in charge of the legal advice SDCERS got and that she was to report to him immediately.

She said no.

It has since become a polarizing debate. One that new Mayor Jerry Sanders even took sides on. The mayor actually stated in his first major speech that Aguirre deserved the post and that not having the city attorney in charge of legal advice at SDCERS was an experiment that failed.

And it’s one of those arguments that can give a reporter a headache – both sides have good points.

For SDCERS, it’s a matter of independence. See, each year the city has to put together an operating budget. And, each year the pension system is going to have to ask the city for money. It’s not in the city’s (read: politicians) interest always, then, to squeeze its operating budget as much as is needed to pay the bill the pension system gives it.

So, the theory is that the pension system needs to be independent from the city. It can’t have the city attorney be its lawyer. Why? Because what happens, say, if the city attorney becomes part of a gang of politicians that want to raid the vast reservoirs of cash hanging out in the pension system in order to fund whatever social program is going to get them reelected next year?

The pension fund must be independent, they say. So that they can give the city the biggest pension bill possible and sue it if it doesn’t pay.

Of course, that proclamation is undermined when those same people say that they want -and need – people from the city and the city’s employee unions, to sit on the board that oversees this supposedly independent body.

If they really wanted independence, you’d think they would advocate for more, you know, independence. But city employees don’t want a truly independent group to oversee the pension fund. That suggestion already came up and they fought it bitterly.

(SLOP Trivia alert: For more fun with this subject, check out the county of San Diego’s governing board. A politician from the county Board of Supervisors actually sits on the county’s supposedly independent pension board. A Voice of San Diego t-shirt goes to the first three people to name that politician. C’mon gimme a break, I’m trying to prove to our donors that somebody reads this column.)

And we won’t even get into the part about all these pension people who have been charged with corruption in the last few months.

In this dispute with Aguirre, Superior Court Judge Jeffrey Barton has tentatively come down on this side of the issue. Tentatively means he can change his mind. Which is why it was so interesting that Aguirre would blast him before had had changed that “tentative” to “final.”

Now, Aguirre’s argument:

Aguirre says it’s simple. The city attorney is the legal advisor to all the city’s departments. The retirement system, according to the City Charter, is a city department (remember how they used city of San Diego stationery, etc?). And its employees cash city issued checks. So the city attorney should be the retirement system’s attorney as well, right?

He looked deep into the judge’s eyes and swore – I’m serious – that he’d do a good job if he only got the chance. It was reminiscent of a child begging his mother to let him get a puppy. He’d take care of it, he really would.

He begged the judge to “have faith in democracy.”

In order to answer the pesky question about the inherent problem with the fact that the pension system and the city that sponsors it are necessarily going to have disparate interests at times Aguirre promised he would establish “the finest system of conflict avoidance across the United States, of any jurisdiction.”

I’ll pick up the puppy’s poop, I swear.

The judge said he’d consider it.

And Aguirre walked out of the room. It took his entourage a few seconds to decide if they were supposed to follow him.

Scott Lewis oversees Voice‘s commentary section. Please contact him directly at