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Wednesday, May 03, 2006 | The focus of San Diego City Attorney Mike Aguirre’s courtroom attack on retirement benefit increases has widened to include some former and current elected officials – meaning that the city of San Diego is suing two of its sitting council members.
Aguirre amended a lawsuit that aims to halve the city’s $1.4 billion pension deficit on Friday, naming as defendants members of the 1996 and 2002 city councils that voted to approve employees’ pension benefits that fattened their future retirement checks.
Five current and former council members, including sitting Councilmembers Toni Atkins and Jim Madaffer, are named in the suit. Aguirre’s targets all served as city employees previous to their stints in public office; he claims they benefited personally from the votes they took to increase employee benefits.
“They had a conflict,” he said Tuesday.
The newest filing in this slowly moving case signifies a change of targets for Aguirre, who until now had primarily focused on the actions of retirement system officials, some of whom are also standing trial in federal and state criminal courts for their involvement in the 2002 deal. No elected official involved in the pension saga has been charged criminally; Aguirre’s suit is civil.
Aguirre’s challenge also fans the flames of the ongoing debate about who speaks legally for the city, as two current council members – who typically approve the city’s legal maneuvers – are now in the awkward position of being sued by the city. The conflict is part of a larger war Aguirre has waged with the majority of council members who have been at odds with him over the handling of the city’s financial and legal fiasco since he took office in December 2004.
Madaffer and Atkins are joined by former Councilmembers Byron Wear, Valerie Stallings and state Sen. Christine Kehoe as defendants in this newest lawsuit, although Aguirre said he would drop Stallings and Wear from the case because, upon further review, they did not receive new benefits.
Aguirre said he will add other lawmakers if evidence turns up that they benefited from deals, which are considered primary factors in the pension system’s deteriorating health, as they allowed the city to minimize its annual pension bill while awarding new benefits to employees.
The council handed out benefit increases to general and public safety employees in 1996 and general workers in 2002, which effectively boosted the retirements for several members of the council who previously held jobs with the city before being elected. Aguirre argues that those council members had a conflict of interest in the pension agreements struck in those years because the deals increased pension pay they would receive.
Robert Stern authored an anti-corruption law similar to the one Aguirre is using for his case, disagrees with the intent of Aguirre’s case. Although Stern’s law provides an exemption for officials voting on their own benefits and the law Aguirre cites doesn’t, Stern said that council members should be excused because only the council can decide how to spend the city’s money.
“It’s common sense,” said Stern, who is president of the Center for Governmental Studies in Los Angeles.
Atkins said she has not reviewed the complaint, but said that Aguirre did not have the authority to file the newest charges on behalf of the city.
“The city did not authorize this lawsuit,” she said.
Aguirre said that the council would have been conflicted on voting on that complaint. He said he asked certain members of the council to not participate in portions of the closed session meetings that deal with the pension litigation because “their interests are adverse to the city’s.”
Council members say that they speak on behalf the client – the city – and that Aguirre is the one who is conflicted for suing some of them and requesting depositions from others.
“Mr. Aguirre is so conflicted on so many matters that it’s a wonder that he is still a member of the state bar,” Madaffer said in an interview Tuesday.
The latest filing is the most recent episode in a long line of actions Aguirre has taken on behalf of the city without the clear instructions of the council. Aguirre claims the City Charter grants him the authority to file lawsuits and represent the city in legal matters without the council’s permission, but many council members have taken exception to his interpretation.
The gulf between these two views has now become a sticking point in the lawsuit, which is the legacy of Aguirre’s early tenure in public office.
A recent court ruling said that Aguirre did not have the proper authority to sue former retirement officials, who were among the many defendants named in the lawsuit. (Aguirre is allowed to prove that he has that ability in the sixth version of the lawsuit that he will file Wednesday.)
Although Aguirre claims the council later authorized his lawsuit, several council members say they only authorized him to challenge the benefit increases in his own name and not the city’s.
Murphy, Council President Scott Peters and Councilwoman Toni Atkins are using that argument to resist the formal interviews Aguirre wants to conduct with them as he prepares for trial.
In an attempt to clarify their stance on the lawsuit, the City Council voted 6-1 on Tuesday to send to the presiding judge a transcript of the closed session meeting last August in which the council discussed authorizing Aguirre’s challenge.
The two sides even disagree on what transcript should be sent to the judge.
Aguirre said the transcript at issue is what an assistant city attorney publicly reported later in an open meeting. “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,” the assistant city attorney said.
“I would like the public to know exactly what was said. I don’t know what Mr. Aguirre’s afraid of,” Madaffer said.
– Kehoe worked as a council aide and a staff member for the city’s economic development agency for a combined 3.74 years. The benefit increases included in the 1996 plan raised her annual retirement pay by $1,069, although subsequent acts further increased her pension. After filing for retirement at age 50, Kehoe draws about $25,723 in retirement pay annually, according to retirement system data.
– Madaffer, assuming he completes his second term in office, will receive a boost of about $1,295 per year to $47,248 after voting for the 2002 set of benefits. He was a City Council aide for 6.87 years.
– Atkins, assuming she completes her second term in office, will receive a boost of about $1,297 per year to $47,768 after voting for the 2002 benefits. She was a council aide for 6.88 years.
A voiceofsandiego.org analysis shows that the benefits that were granted in 2002 also boosted the pension of former Councilman Ralph Inzunza.
Inzunza, who retired after being convicted on unrelated federal corruption charges last summer, served as a council aide for 3.68 years before holding elected office. His vote to increase employee benefits in 2002 raised his yearly retirement pay by $416 to $20,895.
Inzunza, former Councilman Michael Zucchet and former Mayor Dick Murphy were all sued by Aguirre last year in an attempt to roll back benefit increases for elected officials, but he ended up dropping the case weeks later.
Please contact Evan McLaughlin directly at