A Superior Court judge said Thursday that he is frustrated with San Diego City Attorney Mike Aguirre’s handling of a pension-related lawsuit and will force the city to surrender the case – and pay about $175 million into its pension fund – if Aguirre doesn’t get his act together within a week.
The judge said Aguirre has stalled the case by avoiding a February court ruling directing Aguirre to either accept or deny legal conclusions the City Attorney’s Office has presented in three reports on the history of the city’s $1.4 billion pension deficit. Aguirre’s conclusions in the reports mirror claims found in a $175 million lawsuit – one Aguirre is currently arguing against.
“The current position taken by the City … is unconvincing and verges on carelessness,” Judge Richard Strauss stated in his tentative opinion Thursday.
Aguirre has been putting off a court order from February to decide whether former city worker William McGuigan’s claims that the city has underfunded its pension system over the past decade are true, although Aguirre although has shared those views many times before.
“The same city attorney that spent god knows how much in taxpayer money authoring these reports is denying these reports in this case under oath. It’s the same person,” said attorney Michael Conger, who represents McGuigan. “I don’t know how in the world a public servant can get away with that.”
The ruling forces Aguirre to answer a question that several critics, including many of his City Council foes, have wrestled with since he first became city attorney: Do his official reports speak for the city?
For the city, it’s a Catch-22. Conger cut and pasted 34 statements from Aguirre’s reports into requests he filed with the court. If Aguirre admits the 34 statements as fact, the city is more likely to lose the McGuigan lawsuit, which will force a budget-busting pension payment for the already-strapped government.
If the city attorney denies the claims, it discredits key pieces of his primary legal challenge to halve the city’s $1.4 billion pension deficit. Aguirre has hitched his legacy to the allegation that the city proposed deals to dole out pension boosts in order to get the pension board ease its pension bill.
“His entire [primary pension] case is quid-pro-quo – benefits-for-underfunding. I’m just asking for him to admit that,” Conger said.
Council President Scott Peters criticized Aguirre’s involvement in the lawsuit.
“I don’t mean to be disrespectful, but he’s taken the position that makes it impossible for him to defend the case,” Peters said. “I don’t think it’s fair for him to represent both sides.”
The judge stated that Aguirre has until next Friday to decide or the case will be forfeited and McGuigan’s request that the city pay up after shortchanging the fund $175 million between 1996 and 2005 will be honored.
The judge said Aguirre’s delay tactics were “unacceptable.”
“After numerous extensions of time, the City filed responses … that did not comply with the Court’s order, which mandated responses, not additional objections,” Strauss wrote.
The apparent blunder is the latest in a line of defeats for Aguirre in civil litigation this week. An appellate court denied his argument that he should be the pension system’s attorney and a Superior Court judge ruled Wednesday that the city’s affordable housing law was illegal despite the defense Aguirre mounted after he waved off a council decision to settle the lawsuit.
Aguirre did not return calls seeking comment as of press time, but his spokeswoman released a statement on his behalf.
“He believes that he will convince the judge to change certain substantive portions of the tentative decision,” spokeswoman Maria Velasquez said.
In addition, Conger asks that Aguirre admit that a number of pension deals violated the City Charter and municipal code, were economically unsound, and were concealed by officials who handled the city of San Diego’s financial reporting.
Aguirre has used similar arguments to file lawsuits against the San Diego City Employees’ Retirement System, former city and SDCERS officials and outside consultants.
Conger asked Aguirre in September to admit the statements pertaining to the underfunding that he cut and pasted directly from the city attorney’s reports. The judge began ordering Aguirre in February to make a decision, and the city attorney’s deadline has been extended several times since then.
Aguirre avoided responding to Congers’ requests, causing the judge to issue his February ruling.
Oral arguments in the case are set for Friday at 1:30 p.m., at which time Aguirre will have the opportunity to argue against the tentative ruling. Conger said he will try to persuade the judge to immediately end the case and force the city’s payment at the hearing.