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Wednesday, Sept. 5, 2007 | For nearly two years, questions over whether City Attorney Mike Aguirre has the authority to unilaterally file lawsuits without the City Council’s blessing have often overshadowed debates over the merits of the city attorney’s legal strategies themselves.

In that time, the issue has had sufficient time to germinate in the court of public opinion. But there it remains, two years later, without any formal resolution.

There appear to be a number different ways the issue could be resolved: the City Council hires an outside firm to challenge the city attorney; an outside party impacted by a unilaterally filed suit challenges the case’s validity; the state attorney general intervenes with an opinion; or voters decide.

If it isn’t resolved once and for all, the issue promises to continue providing a background buzz to San Diego’s political discussion through Aguirre’s first term, which ends next year, and on through 2012 if he wins a second term in November 2008.

For his part, Aguirre said there’s nothing to be resolved. He’s right, he said.

“I don’t think there’s any clarification needed,” said the city attorney, who said he will be issuing a report this week showing that his view is the consensus view of previous city attorneys.

Council President Scott Peters said he will begin researching the City Council’s options this month. He, like others, believes the issue will only be resolved in the courts.

“I’m not sure what the alternatives are,” he said.

Others watching City Hall in the legal community think the issues could be solved sooner.

The thought is that the challenge could come from the law firm Willkie Farr & Gallagher, which Aguirre sued last month — without council approval — for over-billing and malpractice. The influential New York firm served as legal counsel for Kroll Inc., the international consultants brought in to investigate the city’s financial scandals. Together, Willkie Farr and Kroll billed the city $20.3 million for the 18-month probe.

Willkie Farr could immediately challenge the city attorney’s authority to bring the case in the first place.

Theresa McAteer, a former deputy city attorney who left for private practice in 2001, said the powerful firm may be far enough removed from Aguirre’s hardball politics to take him on directly.

“He’s now filed suit against a couple of entities that don’t give a rat’s behind about challenging him outside of the local press,” said Theresa McAteer, a former deputy city attorney who left for private practice in 2001.

Peters, an attorney before joining the council, questioned whether a third party such as Willkie Farr had the authority to make such a challenge in court.

But another possibility has recently crept up quietly; voters could be asked to alter the charter to explicitly state that the City Council is the city attorney’s client. Aguirre argues that the public is his client, not council members.

Mayor Jerry Sanders’ Charter Review Committee is currently reviewing the issue as it works to prepare a batch of recommended constitutional amendments for the 2008 ballot.

A subcommittee is also studying the possibility of making the city attorney position appointed rather than elected; decisions are expected to be formalized in a report by the end of this month. The City Council will be asked to put those recommendations on the 2008 ballot.

A report compiled by a consultant to the committee noted that when Los Angeles redrew its charter in 1999, it placed greater restrictions on its city attorney, specifically with concern to litigation, settlement control and the retention of outside counsel. San Diego’s charter gives the city attorney “a freer hand,” the report states.

Aguirre said the voters already spoke when they approved an elected city attorney in 1931. “The public already has spoken on it. Just because someone brings it up, doesn’t mean you have to go back and speak on it again,” he said.

The city attorney also contends that the City Council has no authority to hire an outside firm to challenge him.

There are two other options, though they seem less probable.

The first is that a taxpayer, either alone or with the backing of the city attorney’s opponents, could bring a suit against Aguirre on claims that he is misusing public funds by not going through the City Council. Peters and City Councilman Jim Madaffer have both stated that they think the city attorney’s legal endeavors have been overly costly.

Secondly, the City Council has also asked state Attorney General Jerry Brown to weigh in on the issue. Brown isn’t compelled to step into the fray, but could offer an opinion on the matter. Brown’s office didn’t return calls for comment.

At issue is a simple but fundamental question: who is Aguirre’s client. Aguirre opponents such as Peters argue that the client is the municipal corporation of the city of San Diego and, therefore, the corporation’s board of directors — the City Council — must sign off on the city attorney’s lawsuits.

Aguirre offers a more esoteric opinion, saying the public is his client. He was elected by the public to directly do the public’s business, he says, citing a pamphlet from the 1931 election.

It reads:

“The City Attorney is to be elected by the people. This is a guarantee that the legal head of the government will be able to fearlessly protect interests of all San Diego and not merely be an attorney appointed to carry out wishes of council or manager.”

Efforts have been made in the past to bring the issue to a head. The City Council has twice attempted to curb Aguirre’s authority by forbidding the auditor from paying outside legal bills for suits not approved by the council. But, in the Willkie Farr case for example, Aguirre has employed an outside attorney who will only be paid if he wins.

Last year, Peters directly challenged Aguirre’s authority to file suit without council approval in a motion filed in the city attorney’s landmark pension case, setting the stage for the issue to be resolved once and for all. However, Peters soon after withdrew his challenge as the judge was set to rule on it.

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

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