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Friday, July 6, 2007 | City Attorney Mike Aguirre has recently proposed five amendments to the City Charter — two that would affect his office. One would give the City Attorney’s Office subpoena power. The other would articulate in the city’s governing document that the city attorney’s first and primary duty is to the people of San Diego.

If Aguirre’s interpretation of the current city charter Section 40 is correct that the city attorney is the attorney for the people — why then is he proposing a ballot measure to change the city charter to provide that the primary duty of the city attorney is to protect the interests of the citizens of the city of San Diego? If his interpretation were correct, no change in the charter would be needed.

The reality is that Aguirre’s interpretation is incorrect. He is the attorney for the city and its departments. Charter section 40 states:

The City Attorney shall be the chief legal adviser of, and attorney for the City and all Departments and offices thereof in matters relating to their official powers and duties, except in the case of the Ethics Commission, which shall have its own legal counsel independent of the City Attorney.

The city is represented by the elected officials: the City Council. As Aguirre so often says of himself, they were “elected by the people.” As elected officials, just like our senators, members of Congress, state legislators, etc., they have been chosen as the representatives of the people. What does this mean? Many years ago (Mike will provide the date), the representative form of government was created, because it was recognized that to obtain votes from all of the people on every issue of importance would hamstring the government. Nothing would get done. The idea that individuals — hopefully bright and well-intentioned — could be chosen by the people to protect their interests was seen as a solution to this problem.

In voting for an official, a member of the public is saying, “I am choosing you to make decisions for me. You are my proxy in votes. You are my voice.” If, over time, the public doesn’t like the decisions that the elected individuals have made, the public can chose, among other things, to recall the official or vote for another in a future election. That is how the public participates in democracy. Though a city is made up of citizens, the citizens have chosen to be represented by their elected officials.

Thus, when the city charter states that the city attorney is the “chief legal adviser of, and attorney for the City and all Departments and offices,” it is stating that the city attorney is the attorney for the city as represented by its elected officials, the City Council. So, Aguirre is not the attorney for the citizens, he is the attorney for the city, for the council, the representatives of the people.

People may ask: If what I say is true, why then would he be elected, independent, rather than appointed? Look to the very basic principles of separation of powers. An independent, elected city attorney could provide advice to the City Council without the fear of being fired. His advice would thus be unbiased, and untainted by political will, directed only by the law. Imagine the appointed city attorney: If the City Council didn’t like the advice, it would simply hire a new attorney. An elected city attorney can say, “Here is the law, you may not like it, but this is it.”

But you say: We need someone to protect us from all of the evil things that are happening within the city. The reality is that the state attorney general, the district attorney and various private attorneys have that role. If the city attorney were to investigate the city departments or the City Council, the very groups he/she is supposed to represent under the Charter, a potential conflict of interest arises. Such potential conflicts are the reason that charter section 40 indicates, “[t]he Council shall have authority to employ additional competent technical legal attorneys to investigate or prosecute matters connected with the departments of the City.”

Back to the question of why Aguirre needs to float a ballot measure changing the charter. Very simple: The charter never said what he told you it said.

Miller is a former deputy city attorney.

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