A Confrontation They Can’t Avoid

Saturday, April 28, 2007 | For almost three years, San Diego city government has danced around what is probably its most pressing political and legal dilemma.

What is City Attorney Mike Aguirre’s job?

Ever since City Attorney Mike Aguirre first challenged the basic definition of his post, something he did long before he actually won the position, there has been no consensus regarding the city attorney’s true powers.

And there really are no bigger issues at City Hall now considering the fact that this one affects all of the others.

A few weeks ago, the City Council, followed by the mayor, started what could be the final battle in this mess. Like any civil war, it will be costly and ugly, but it holds the possibility of putting a bitter issue to rest.

Aguirre believes that it is his job as an elected city attorney to represent the people of San Diego who elected him. He’s the People’s Lawyer. This is an attractive principle. It’s not an accident that many people in the city, despite his recent stumbles, still react well to Aguirre’s populist message. A populist like him has a way of being popular.

Aguirre’s definition of his job is not one that the whole city accepts. There are serious people, with strong minds and sincere hearts, who don’t believe that’s the true interpretation of the job of the city attorney.

The city attorney has a duty to also provide legal advice to city officials like the mayor and City Council. He has a duty to interpret the legality of their measures.

So there is an obvious dilemma. If Aguirre disagrees with something the City Council or mayor is doing or if they disagree with something he wants to do, he doesn’t believe he answers to anyone other than the voters.

Most specifically, this problem is focused on Aguirre’s power to file legal actions on behalf of the city. Like any sprawling metropolis, the city of San Diego is juggling thousands of cases: lawsuits against it; lawsuits of its own against others; and hundreds of misdemeanor criminal prosecutions.

Aguirre believes that he has the right and responsibility to represent the people of San Diego and to file lawsuits on their behalf.

In fact, just Wednesday, he reasserted that right and said that — even if the City Council doesn’t agree with his findings — he will pursue a lawsuit against Kroll Inc. That’s the investigative firm that milked the city for $20 million before finally producing a report about the city’s problems in August.

But the City Council tried to draw a little line in the sand a couple of weeks ago.

It passed a law requiring the mayor and city auditor specifically to withhold funds from the city attorney for use on lawsuits that the City Council did not authorize him to initiate.

It was a surprisingly clever move. After all, the city attorney has just himself reaffirmed, sort of, the City Council’s ultimate authority to set the city’s budget. That would include the City Attorney’s Office.

So why shouldn’t it be able to cut off funds for the city attorney? It’s as if the Congress realized it couldn’t stop a war that the president started but it could cut off funding for the war. Aguirre can still fight his wars, but he’ll have to get a helmet and some ammunition himself and go for it.

Let’s be clear about why this is a big deal: Many members of the City Council, if not all of them, have disagreed with the city attorney’s definition of his own job. But they’ve never done anything about it. A combination of political cowardice and political aptitude has held Council President Scott Peters back from challenging Aguirre’s power to do this. He had come close, but he refrained.

Until now. On March 27, the City Council was reviewing the city’s budget as part of regular mid-year adjustments. In an obviously orchestrated move, with a 6-2 vote, the group decided that the city auditor and comptroller was not authorized to pay for lawsuits Aguirre decides to pursue on his own.

Now, the auditor is controlled by the mayor. So, the mayor could have just sat on this and let his buddy Aguirre go forward with the status quo. But he didn’t. The mayor directed that his auditor follow up on this and ask Aguirre for a list of his current lawsuits.

“The council passed an action and we need to implement the action. If not, we would be in dereliction of duty,” said Fred Sainz, the mayor’s spokesman.

Presumably, the list the Mayor’s Office requested from Aguirre was going to be compared with a list of the lawsuits the City Council authorized. Somehow, then, the auditor was going to decide how to unfund the unilateral legal actions. Ostensibly, this would force the city attorney to fire any outside lawyers he’s hired to pursue some of his efforts.

Peters pretty obviously is the architect behind the measure, although Councilman Ben Hueso was the one to introduce it.

But they made a mistake. They wanted to do this passively. They wanted to sneak in a bold affront to Aguirre’s power. But they wanted to do it swiftly without having to confront him.

Aguirre immediately claimed they were overstepping their boundaries and illegally trying to clip his wings. But when responding to the mayor’s request to list out the lawsuits in question — so they could be unfunded — the city attorney outlined another complaint about the City Council’s moves.

He said the council did not properly alert the public that it was going to pass such a substantive law. The council broke, in other words, the Ralph M. Brown Act — the one public law that government watchdogs all around the state know by heart.

The Brown Act has many facets, but the one related to this case holds that governments like the City Council must alert their constituents to the fact that something important is going to be discussed during a public meeting. That way, if the public has something to say, they can get there and let their feelings be known.

Aguirre said no opportunity was given, even to his staff, to respond to a proposed law like this.

The public had been alerted to the idea that budgets, including the city attorney’s, were going to be discussed. But nobody knew that something this monumental and confrontational was going to come up.

Peters said he can’t anticipate all the amendments to ordinances that come through. So how can he tell the public about every little thing that might come up?

“Aguirre is using the Brown Act to fight something he doesn’t like. We have no way of knowing the amendments we are going to make to something before we go to a meeting and hear from our colleagues and the public,” Peters said.

He can classify it as a simple amendment to a “midyear budget adjustment,” yes, but Peters’s and Hueso’s action was much more significant than that. As I said, it was a bold affront to the city attorney’s power. It attempts to deal with a historical dilemma in city governance.

It deserves not only better notice, but an unprecedented public hearing. Like a jury, the City Council should hear testimony from experts of all kinds about the power of the city attorney and the true interpretation of the city’s constitution.

If it wants to, it should face the city attorney down. Confront him without the passive sleight of hand. Let’s fight this one out in public once and for all. Does the city attorney have the power to bring lawsuits without the City Council’s authorization or not? If so, why does he get authorization for the vast majority of them? If not, what happens if the public would be benefited by a lawsuit that the City Council might be selfishly unwilling to file?

These are great questions. The council should make its determination after hearing testimony. If the city attorney disagrees with what it decides, he should file a friendly lawsuit against its members.

If all that happened, we would, finally, know what Aguirre’s job is.

And we could, for once, move on.

Please contact Scott Lewis directly with your thoughts, ideas, personal stories or tips. Or send a letter to the editor.