Wednesday, April 11, 2007 | The City Council elected not to decide between two competing pieces of legislation over budget authority Tuesday after City Attorney Mike Aguirre issued a last-minute opinion concluding that both versions would be illegal.
Aguirre’s announcement further prolonged a long-festering debate over the division of budgeting power between the Mayor’s Office and the City Council, as each branch of the municipal government has tugged at the gray area created in last year’s transition to a strong-mayor form of governance.
Budget Authority Still Unresolved
The dispute broke out last year over Mayor Jerry Sanders’ decision to cut a swimming program from the parks and recreation budget in the middle of the year without council approval. Since then, Sanders and the council have tussled over the mayor’s authority to make cuts that stray from the budget the council finalizes every year, with the debate reaching its zenith in January when both sides lashed at each other publicly and quite harshly.
The months-long controversy has been billed as a battle between the mayor and council. But Aguirre was the target of criticism Tuesday, as both sides disparaged his decision to wait until after several hearings to chime in with a legal opinion.
Aguirre’s opinion, that city law barred the council from delegating any of its budgeting power to the mayor, scuttled the work and negotiations that had been conducted for months, leaving the long-simmering controversy unresolved.
“I’m not sure we needed four or five council sessions only to find a legal opinion today,” Sanders said.
“I would prefer to get legal opinions much more expeditiously so we don’t have to fight battles we don’t need to fight,” he added.
Andrea Tevlin, the council’s independent budget analyst, said she was embarrassed that her office and the council had worked on studying and crafting legislation on the item since October only to find out Tuesday that Aguirre thought it was illegal. Tevlin said she had asked the City Attorney’s Office for legal advice six months ago, when she laid out her concerns in a 50-page memo.
“This was not a hastily written ordinance,” said Tevlin, noting that her proposal was modeled after a similar requirement the city of Oakland adopted.
“Without the benefit of a legal opinion at the time, we did our best to look through the charter,” she added.
Officials’ irritation over the tardy arrival of Aguirre’s opinion is nothing new at City Hall. They frequently complain that the city attorney’s legal counsel often arrives late or unfinished, slowing down legislation and other city business along the way.
“It seems like a lot of time has been wasted at the staff level as well as the time of all the taxpayers who came out in support or opposition of the ordinances today and the last times they were at council,” said Lani Lutar, president of the San Diego County Taxpayers Association. “It’s become a question of whether the city attorney is providing counsel to City Council in an appropriate timeframe.”
The city attorney has attributed delays in delivering opinions to taking extra care on the advice he provides officials in order to avoid dispensing faulty opinions that could later end up landing the city in court. He cited those concerns over the last month, but only made his argument that the legislation was illegal Tuesday.
In the legal opinion his office released Friday, Aguirre stopped short of siding with the proposal that would have given the City Council more power. But he claimed the council could not delegate its own legislative authorities, such as setting the city’s budget, to the mayor.
Instead, Aguirre proposed empanelling council members, their independent budget analyst and representatives of the Mayor’s Office and the City Attorney’s Office to study the debate and recommend rules that the council — or even voters — could codify in city law.
The goal, according to Aguirre’s written opinion, would be to “enable the Mayor to implement the policy of the Council with maximum flexibility to achieve efficiency and cost savings.” And, because he says there is no bright-line rule for handling the issue, he opined that each budget decision should be assessed on a case-by-case basis in the meantime.
However, the Friday memo did not include the explicit opinion that both proposals violated the city charter, even though Aguirre would later make that claim Tuesday afternoon. That opinion came as a surprise, as the council listened to many of the 66 public speakers who filed into City Hall earlier that morning to testify about the proposals before Aguirre proclaimed the legislation illegal.
The council tentatively approved legislation on Feb. 5 that would have required Sanders to ask the council for permission to make midyear cuts that “materially or substantially” reduced a city service. Weeks later, Council President Scott Peters and Councilman Tony Young brokered a compromise with the mayor that would have set specific thresholds. The tentative compromise would have required council approval if the cut reduced a department’s funding by either $4 million or 10 percent, whichever figure was smaller.
Since the introduction of the second piece of legislation, the two have been competing against each other in the court of public opinion. The debate highlighted arguments over the delegation of powers under the strong-mayor structure voters approved in 2004.
Under the arrangement, the mayor was removed from the City Council and handed oversight of the day-to-day operations of the city government and the responsibility of proposing an annual budget. The council, as the legislative branch, is charged with finalizing the yearly spending plan.
Sanders, elected on a promise to fix the city’s shabby finances, said he needed the authority to make the cuts unfettered. Council members, on the other hand, argued that their approval of the budget was a much-needed check to keep the power at City Hall balanced.
Although the legislation would have applied to the current fiscal year, which expires June 30, many officials believe it would have settled the balance of power between the mayor and council during the next fiscal year and beyond.
On Tuesday, Aguirre said he first sensed a legal controversy when the compromise language being endorsed by Sanders, Peters and Young was announced. “When we came to point that numbers were so large and in the millions of dollars — and I believe that was made in good faith — I became … concerned,” he said.
When the council was set to vote on the competing proposals March 19, Aguirre asked for more time. He said postponing the vote was necessary to evaluate the “legal issues” identified in a memo issued by Councilwoman Donna Frye just 10 days earlier.