City Attorney Mike Aguirre called to provide some perspective on my column today.
In it, I talked about the long-standing dilemma between the City Council and Aguirre about whether he can initiate lawsuits on behalf of the city without the council’s authorization.
I included his recent announcement that he would sue Kroll Inc. whether or not he got authorization from the City Council.
He said that, in the case of Kroll, it’s clear he doesn’t need the council’s approval. He said he plans to go after Kroll for “false claims” — overbilling the city and a few other alleged misdeeds as they ran up a $20 million bill.
California’s government code directs city attorneys like Aguirre to investigate false claims and to initiate lawsuits if he or she sees evidence substantiating it.
(b) (1) The prosecuting authority of a political subdivision shall diligently investigate violations under Section 12651 involving political subdivision funds. If the prosecuting authority finds that a person has violated or is violating Section 12651, the prosecuting authority may bring a civil action under this section against that person.
If he’s reading that correctly (lawyers, feel free to chime in, as I know you will) he doesn’t have to get the City Council’s authorization.
So why is he trying?
“I would like to build a consensus and have the city send a message to the public that it’s not just the city attorney. I want the public to know that I made the effort,” Aguirre said.
Aguirre, as the prosecutor of misdemeanors in the city of San Diego, files hundreds of criminal cases without needing authorization from the City Council.
He said that California law allows him the same latitude to file a civil complaint against someone who he believes violated the false claims law.
But the reason for keeping the City Council out of the criminal process is, ostensibly, to remove a political body from the decision about whether to prosecute someone criminally.
Let’s assume Aguirre’s correct. If so, wouldn’t taking this complaint to the City Council to get authorization not be necessary and actually, I don’t know, bad?
“The fact that I try to build a consensus is not wrong so long as I reserve the right to make that judgment independently,” Aguirre said.
So there’s that. Aguirre also acknowledged that there were some “gray areas” in the law about whether he had complete authorization to sue.
This discussion about Kroll, by the way, is not really new. Aguirre’s been planning to sue Kroll for quite some time.
Seven months ago, I wondered how the city was ever going to go after Kroll as Aguirre planned. After all, Aguirre and the city’s leaders endorsed Kroll’s initial contract that said, in part, this:
The Council and City agree that the City or any other party or affiliate acting on their behalf will not hold Kroll, its affiliates, its representatives or its employees legally responsible for any loss or liability to the City or any of its representatives or personnel for any claims, liabilities, or expenses relating to this engagement. Additionally, the City agrees to indemnify and hold harmless, Kroll, its affiliates, its representatives and its employees from any and all claims, liabilities and expenses arise as a result of Kroll performing services pursuant to this Agreement. This provision and other provisions in this Agreement will survive the completion or termination of this engagement.
That seems like a nice little insurance policy for the firm.