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An experienced municipal lawyer sent me a comment about whether City Attorney Mike Aguirre can unilaterally file a false claims complaint against Kroll Inc.

He says Aguirre is not correct that state law allows him to do it without authorization from the City Council.

The lawyer said the government code Aguirre cited only allows cities to actually file a false claims lawsuit — that it’s not just something only the attorney general can do:

The Government Code provision is permissive only, in the sense that it permits a city attorney to file such an action instead of limiting the authority to the Attorney General (hence the use of the word “may” in the statute, one needs to read the entire section in context to understand the division of authority).  The authority of the San Diego City Attorney to file litigation is still limited by the language of the City Charter and the rules of professional conduct for lawyers of organizations (Rule 3-600).  The Government Code does not by itself give the City Attorney the right to file such litigation on his own.  In my opinion, the City Attorney must receive approval from the City Council to pursue the litigation.  After all, such a decision is a policy decision, and under the Charter all policy making authority is vested in the City Council as the City Attorney recently admitted in his opinions regarding the budget authority of the City Council.

I still think the most fascinating issue is why Aguirre is even taking his complaints about Kroll to the City Council for authorization. After all, if he really believes he doesn’t need to, and he equates the reason why he doesn’t need to with the corrupting influence on justice that a political body like the council can have, then why does he seek the council’s authorization at all?

SCOTT LEWIS

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