Tuesday, March 27, 2007 | The San Diego City Council unexpectedly passed legislation Monday evening that bars City Attorney Mike Aguirre from spending city money on lawsuits his office files without the council’s support.
The restriction, which passed 6-2, is the latest attempt by several frustrated council members to curb Aguirre, who claims that he is permitted, as the city’s elected legal adviser, to unilaterally file lawsuits on the municipal government’s behalf. Dissenting council members said the surprise motion was inappropriate because the public wasn’t given proper notice.
The controversy has been longstanding and was even the subject of an entire October 2005 council meeting, when legal experts argued at length for and against Aguirre’s interpretation. Since then, the council has struggled to balance between allowing Aguirre leeway to pursue controversial cases and safeguarding the city against litigation that could prove costly and risky.
“We need to be included in filing lawsuits, not after we have a quagmire or a problem or a mess,” said Councilman Ben Hueso, who proposed the restriction.
Just last week, and without the council’s blessing, the city attorney took his legacy pension lawsuit to the state Supreme Court. The litigation has largely defined Aguirre’s tenure in office but is abhorred by several council members who claim it’s a waste of taxpayer money and lacks merit. Aguirre billed the case, which seeks to undo pension deals that created $900 millions in employee benefits, as one that could save the city from financial ruin, but the courts so far have substantially trimmed the stakes of the legal attack and the city has incurred several million dollars in related legal costs.
Aguirre was not present at the meeting and did not return calls seeking comment, but his deputies said they disagreed that the council can limit the city attorney’s authority. Echoing the public stance Aguirre has taken during his two years in office, Assistant City Attorney Karen Heumann claimed the City Charter allows Aguirre exceptional independence from the council when directing the city’s legal affairs. That independence allows Aguirre the ability to pursue controversial legal challenges that might be in the public’s best interest, but not necessarily the council’s, Heumann said.
Aguirre often cites a pamphlet from the 1931 campaign to make the city attorney an elected post as reason why his office is afforded such independence. It reads: “The City Attorney is to be elected by the people. This is a guarantee that the legal head of the government will be able to fearlessly protect interests of all San Diego and not merely be an attorney appointed to carry out wishes of council or manager.”
But Aguirre’s interpretation of the law has frequently sparked disagreements. Aguirre recently a filed a lawsuit against Sunroad Enterprises for its construction of an office building near Montgomery Field airport. Council members said Aguirre never received their permission and lament Sunroad’s retaliatory lawsuit, which seeks $40 million from the city for trying to block its completion of the project after the city approved its permits.
The City Attorney’s Office has employed several outside lawyers to work on the pension case; past defendants that Aguirre sued unsuccessfully recovered their legal bills from the city; and council members have suggested that the sprawling lawsuit strained the resources within the office. Aguirre initially filed the pension lawsuit and secured the council’s reluctant endorsement weeks later, but did not seek permission on other matters, such as last Friday’s petition to the Supreme Court.
In the pension case, Council President Scott Peters tried to derail the lawsuit by alleging last summer that Aguirre did not have the proper authority to proceed to trial, but he withdrew his case right before the Superior Court judge was supposed to rule on the matter. Peters, who said he helped Hueso draft the legislation before the vote Monday, said he was “out of patience” with Aguirre.
A spokesman for Mayor Jerry Sanders said the mayor didn’t know about the proposal, but added that the council’s desire to better oversee the city’s legal bills is “a very legitimate concern about the budget.”
Peters, Hueso and Council members Toni Atkins, Tony Young, Brian Maienschein and Jim Madaffer voted for the proposal. Council members Kevin Faulconer and Donna Frye voted against it.
Faulconer and Frye both said they didn’t believe the vote was appropriate, as it came during the waning hours of a hearing on a series of scheduled mid-year changes the council made to the city’s spending plan for 2007.
“Out of the clear blue sky, Mr. Hueso pulled out a piece of paper and reads this motion for which there had been no prior discussion,” Frye said in an interview after the meeting. “I just find it interesting that the discussion on the city attorney’s budget authority can be done with one motion with no public hearing, yet for another budget authority discussion, it takes six, seven months. There’s something inconsistent here.”
Heumann warned the council that straying too far from the budget item that was scheduled Monday could result in a violation of the state’s open meeting law, known as the Brown Act.
Hueso initially pitched a more sweeping limit that would’ve barred Aguirre from filing a lawsuit altogether unless the council approved it. But the language was toned down to only prevent the city’s accountants from writing the checks for lawsuits that hadn’t gained council approval — a more mild approach that gained broader council support and better distinguished between legal authority and the budgetary authority wielded by the council.
Also, the legislation allows the City Attorney’s Office to act on a legal matter without the council’s approval when facing a tight deadline, but requires it to seek approval for that lawsuit within the next 60 days that follow.
— Staff writer Andrew Donohue contributed to this report.