Murphy Challenges Aguirre

Thursday, April 27, 2006 | Former Mayor Dick Murphy left the limelight of City Hall after the city’s pension problems dragged him down, partly because of the flurry of public statements City Attorney Mike Aguirre made about the former mayor’s handling of the retirement plan.

On Tuesday, exactly one year after announcing his resignation, Murphy reentered the pension fray by seeking to undo Aguirre’s legacy, filing a motion in Superior Court to cut short the city attorney’s efforts to roll back a decades’ worth of pension benefits he alleges are illegal.

The filing by Murphy and Council President Scott Peters reprises earlier arguments made that Aguirre has no authority to bring the lawsuit. It is the latest dispute between the fiery city attorney and the City Council over a $1.4 billion pension deficit that has been the subject of lawsuits and the target of local and federal investigations.

Murphy and Peters seek to disqualify Aguirre from what has been his primary effort as an elected official. He alleges that pension benefits increases that were doled out between 1996 and 2002 resulted from illegal and corrupt deals, but foes say the City Council never authorized him to file the lawsuit in the city’s name.

“The city has no authorization to file this,” said Pamela Naughton, the attorney representing Murphy and Peters.

Murphy and Peters aren’t defendants in the case, but Aguirre has sought to formally question them as he prepares for trial. They, in turn, are asking Judge Jeffrey Barton to dismiss the case, echoing the arguments of other in the case such as former pension trustees and the San Diego City Employees’ Retirement System.

Last week, a judge ruled in favor of pension trustees based on the same argument, and Aguirre has been given the opportunity to file a revised version of the case. Aguirre said the City Charter grants him the ability to file the suit unilaterally, but also claims that the council signed off on the case last summer.

Peters disagreed. He said Wednesday that Aguirre only had the authority to bring the case in his own name, not in the name of the city of San Diego.

“He ought not to represent that we made that authorization. That’s a misrepresentation to the court,” Peters said.

Aguirre points to an Aug. 9 transcript of the council’s open meeting where an assistant city attorney reported that, “by a unanimous vote, the City Council authorized the City Attorney to pursue a modified cross-complaint in the action SDCERS versus City of San Diego and City Attorney Michael Aguirre.”

Peters said the modification that is referred to in that passage was to change the name of the filing party, which Aguirre chalked up to being a “a procedural issue, not a substantive issue.”

Transcripts of closed session council meetings are confidential and not available to the public.

Mayor Jerry Sanders has publicly backed Aguirre’s challenge to the pension benefits, but chose his words carefully when speaking about his support for the lawsuit.

When asked if he would urge the council to authorize Aguirre to move forward on the case if the city attorney needed explicit council permission, Sanders said, “I’d want to take a look at all the options we have available to us before a decision was made.”

Said Sanders: “I do think it’s important to get a determination on the benefits; either in court, mediation or arbitration.”

Concurrent to Aguirre’s court case, the city is working with a retired federal judge to mediate the pension dispute with the city’s labor unions, SDCERS and pensioners.

Murphy and Peters are among several former city, labor and pension officials who were subpoenaed by Aguirre, who wants to take their deposition.

“The time for them to answer questions has arrived,” Aguirre said, referring to Murphy and Peters, who both sat on the 2002 City Council that approved a controversial pension deal that is also playing out in criminal court.

Murphy and Peters argued in the filing that Aguirre should not be allowed to take their depositions because he is conflicted in the case. Murphy and Peters argue that Aguirre should not be challenging pension deals that were approved by past city councils and city attorneys.

“On the one hand, the City Attorney’s Office has an ongoing attorney-client relationship with the council. The City Attorney meets daily with the Council and advises them on numerous matters, including this case,” the filing states. “On the other hand, through this litigation, the City Attorney seeks to overturn laws which his client, and his own office, approved.”

Aguirre said he advised the council members to get their own attorney when he took office in December 2004 because he would be taking on a role that conflicted with the lawmakers.

“I have no confidential relationship with him, that’s why he has his own lawyer,” Aguirre said. “If he thinks there’s a problem, he shouldn’t attend closed session.”

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