Monday, February 27, 2006 | In his letter to the editor, Mark Sullivan fails to understand that it is law not choice that mandates that the city attorney is the lawyer for pension board. The pension board is a department of the city; its board is required to administer its funds to ensure prompt payment of benefits. The board’s fiduciary duty is set forth in the City Charter and State Constitution.

The State Constitution is silent on the legal adviser for the board. The Charter states the city attorney is the lawyer for all departments and the Municipal Code identifies city retirement as a department of the city. As the former pension board member has twice admitted, the Charter and Municipal Code state, and 70 years of history show that the voters decide who represent the pension board when they elected the city attorney.

Board member Sullivan is one of the board members who are refusing to follow the City Charter and State Constitution. He has decided not to comply with the charter mandate that the attorney for the board be elected. He does not want to hear the advice I intend to give him and other board members. They are seeking to change that advice by getting a lawyer of their choice to tell them what they want to hear.

Unfortunately, their lawyer has been indicted by the federal grand jury for having allowed herself to become the captive of the pension board. Sullivan is part of the group that wants to hold on to the allegedly illegal benefits, not turn over documents to federal investigators and pay for the criminal defense attorney of the retirement system’s hand-picked lawyer who stands indicted for withholding from pension board members about the scheme to underfund the pension.

Sullivan, who was elected under a system the voters decided to create in November 2004, believes that his former trustees can run up hundreds of millions of dollars of unlawful pension benefits for which there is no funding completely independent from taxpayers and the only option the taxpayers have is to pay for the damage done.

Key to this system is making sure that the board attorney does what he is told to do by the board. That is the very circumstance that the City Charter drafters sought to avoid by having the city attorney elected not appointed. That way he or she is independent from those to whom he gives advice. Sullivan had confidence in the indicted pension board attorney, but he does not have confidence in the attorney who was elected. Voters feel the opposite, however, they have confidence in the city attorney they elected and do not have confidence in the one indicted.

In our system the voters should have won. However, Sullivan and his colleagues are wasting millions of dollars to thwart the will of the voters by tying the matter up in court. The plan participants including those Sullivan is supposed to be representing are suffering while their pension plan benefits shrink. If we are to make progress the city attorney must be restored to his duly elected position as lawyer for the pension plan.

Mike Aguirre is the city attorney for the city of San Diego. You can email him at

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