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Tuesday, Oct. 16, 2007 | By pushing to replace City Attorney Mike Aguirre with outside lawyers in two recent matters, Mayor Jerry Sanders has lent new energy to a dormant dispute over control of the city’s legal decisions.
Debate over the role of the city attorney simmered upon Aguirre’s arrival to City Hall nearly three years ago. Aguirre claims he is not only the city of San Diego’s adviser and advocate in legal affairs, but also the final arbiter of decisions, such as filing a lawsuit, that are normally reserved in the legal world for a client. Others, such as a number of council members, say he has overstepped his bounds in unilaterally filing lawsuits on the city’s behalf.
The dispute now appears headed down a path that could end with a judge’s decision. A scenario could arise in which Aguirre and outside attorneys recently hired by Sanders and the City Council both show up to court to represent the city, only to find a confused judge who would then have to determine who speaks on behalf of the city in legal matters: Aguirre or the mayor and City Council?
Resolving the issue until now has been elusive, as challenges to Aguirre’s authority have wilted in the heat of political pressure or indecision.
Now, after avoiding the fray for the first year and a half of his administration, Sanders has jumped into the controversy by hiring outside attorneys to represent the city in a pension dispute and the Mount Soledad landside. His participation could help answer a question that has evaded Aguirre’s critics but that the city attorney himself wants left untouched.
Sanders brings an added political heft that could potentially force a controversy — and a fight with Aguirre — that he had hoped to avoid just months ago when the two officials enjoyed a more cordial relationship, albeit one based largely on appearances.
“With the mayor weighing in, I think it gave the entire council some backbone, and it gave the debate greater fortitude,” said Councilman Jim Madaffer.
Without the support of Sanders, it’s unlikely that the council would have made the move to replace Aguirre on the cases.
A bloc of the council, consisting of Madaffer, Council President Scott Peters and Councilman Ben Hueso, has called into question the city attorney’s ability to unilaterally file lawsuits, as well as his reluctance to defend and advise the mayor and council. But rounding up support for their cause has proved challenging.
Aguirre has largely trumped them by painting them as obstructionists more interested in protecting themselves than reforming city government. Plus, it’s a question he claims voters already answered in 1931.
He frequently launched criticism at Peters and Madaffer for approving pension deals that left the city with a $1 billion deficit and faulty bond disclosures that attracted the skepticism of the Securities and Exchange Commission and the city’s outside auditors. Hueso, he alleges, has been their lackey in attempting to stifle Aguirre’s push to reform City Hall.
That backdrop has been difficult for those council members and others to overcome, as even Sanders has oftentimes scolded the City Council on the campaign trail and in office.
“The council was tainted by the actions of everything surrounding the past fiscal problems of the city,” San Diego County Taxpayers Association president Lani Lutar said. “The mayor has not been tainted by that cloud of doubt, and he is in the position to bring credibility to the discussion.”
Sanders, through spokesman Fred Sainz, declined to be interviewed for this story.
The mayor, in a calculated decision, avoided confrontation with Aguirre for the first year and a half of his tenure. The two officials locked arms in a marriage of convenience to appear cooperative in their efforts to reform City Hall. Aguirre benefited because Sanders lent a mainstream legitimacy to some of his ideas and didn’t meddle in his ongoing feud with the pension system and the City Council. Sanders was largely spared the relentless attacks of Aguirre’s media machine.
But in the wake of the Sunroad Enterprises saga, they have charted a more contentious relationship. The mayor’s gripes over the legal advice he received from Aguirre’s office proved to be another forerunner to engaging Aguirre in the power struggle.
“I’ve sort of been waiting on this and have been personally frustrated in the mayor’s unwillingness to go get legal advice where he hasn’t gotten some,” Peters said.
Sanders has stepped up his criticism of Aguirre in recent weeks. Among the barbs he fired: accusations that Aguirre bungled the city’s legal position in the Mount Soledad landslide and an employee benefit that allows workers to pad their future pension checks by purchasing credits that add years to their service with the city.
With the mayor’s recommendations in hand, the council decided last week to sever Aguirre from the legal work on those issues by requiring the hired attorneys to report exclusively to the mayor and council. Supporters of the move claim Aguirre is conflicted between his duty to protect the city and his handling of both matters to this point. But Aguirre argues he is still capable of managing both cases, and that Sanders and the council decided to remove him in order to embarrass him.
Under the arrangements, the attorneys would report directly to the Mayor’s Office and council. But Aguirre claims that, despite the council’s repeated declarations that the City Attorney’s Office is off the case, the private attorneys that are hired will end up working with his office.
“We’re not going to split the baby in half,” Aguirre said. “I would never permit anything to happen that would damage the city’s legal position like this. There is more symbolism to this than substance.”
If Aguirre remains steadfast that only he can direct the city’s legal affairs while the lawyers hired by the mayor and council keep the City Attorney’s Office detached from the discussions, the city could be headed for a showdown.
Peters envisions a scenario in which the hired lawyer and Aguirre arrive in court on one of the matters. “At that point, I think the judge would want to know who is representing the city,” Peters said.
As Peters sees it, the debate that has played out at City Hall would finally play out in a forum that would provide a legally binding answer.
Aguirre has argued that voters amended the City Charter in 1931 to allow for the city attorney to be elected by the people of San Diego in order to represent “the people’s interests” over those of other city officials. He cites a pamphlet that was circulated at the time of the 1931 election, which states his office’s independence 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.”
His critics think the interpretation is impractical. They say the state bar’s Rules of Professional Conduct say an attorney’s primary duty is to a client — the city — and that the mayor and council speak on its behalf. Aguirre’s job is to provide the advice that goes into the client’s decisions and to carry it out in the legal arena.
The debate has surfaced several times during Aguirre’s tenure. In 2005, the controversy prompted Acting Mayor Toni Atkins to call a hearing with legal experts who debated whether Aguirre was permitted the powers he claimed. The hours-long event ended without resolution.
Peters and former Mayor Dick Murphy mounted a challenge to Aguirre’s authority when they jumped into the city attorney’s legal attack on an estimated $900 million worth of pension benefits. Their motion to dismiss Aguirre, on the grounds that the council didn’t authorize him to bring the pension lawsuit, was withdrawn just as Aguirre and the public employee unions were headed to Superior Court for trial.
Peters acknowledged he surrendered the challenge because he thought San Diegans preferred a judgment on the merits of Aguirre’s case over his dispute. The lawsuit failed to make it that far, instead falling to other legal obstacles in the trial’s early stages.
“Everyone sort of stepped aside to let Mike fight that battle,” Peters said.
More recently, the council voted to prohibit the city’s accountants from paying outside lawyers on lawsuits Aguirre filed without the council’s permission. The move came after the council, which controls the city budget, backed off a firmer restriction, which would have barred Aguirre from spending any money on the lawsuits he filed on his own.
As the spat over last week’s hiring of outside counsel heads for a showdown, the council may take an additional avenue in the dispute. The city is currently contemplating what changes it wants voters to make to the city charter in the June 2008 election. The citizen committee Sanders empanelled for advice on charter changes decided the issue was too politically charged for the upcoming ballot, fearing it could become a referendum on Aguirre. But Peters said he anticipates the Rules Committee will reconsider adding it to next year’s list of bylaw changes when it meets Oct. 24.