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Wednesday, Oct. 1, 2008 | City attorney challenger Jan Goldsmith says, if elected, he would present the City Council and the mayor with an analysis of whether the city should continue with Mike Aguirre’s flagging flagship pension litigation or if it should settle or even drop the case.

But it’s hard to see what benefits Goldsmith actually finds in the lawsuit, which has stumbled in court and is currently pending on appeal. In public, the challenger hasn’t been shy about lambasting the lawsuit and in interviews he makes it clear that he thinks it’s a costly waste of time.

The pension case is the most high-profile task that would be waiting for Goldsmith on his first day in office if he’s victorious in November. It has carved deep divisions between city employees and some elected officials, grabbed national attention and offered the most ambitious route for how to help cure the pension system’s $1.2 billion deficit — by wiping away nearly a decade’s worth of employee pension boosts.

It’s also found little success in the courtroom and has taken up much of Aguirre’s, and his staff’s, time for the last four years. It has been at the heart of Aguirre’s tenure as city attorney and has, in no small part, served as a bellwether of his success.

If Goldsmith inherits the case, he will find himself in an awkward position: He says he would possibly seek a settlement of the lawsuit, but by publicly opining on the faults of the case and the weaknesses in Aguirre’s legal argument, he has, in turn, weakened the city’s bargaining stance.

In criticizing Aguirre’s pension case, Goldsmith points to a trial judge’s 2006 decision that dismissed the lawsuit on a number of procedural grounds and is now under appeal. He said the ruling makes it clear that, under existing law, Aguirre’s lawsuit was not filed within the legally required time limit; the issues in the lawsuit have already been dealt with by prior settlements and thus cannot be tried again; and the city cannot sue the pension system, because to do so would be to effectively sue itself.

Goldsmith claims the central argument in Aguirre’s lawsuit — that the pension benefits agreed to by the city and its pension system are illegal and should be overturned and repaid to the city — is unworkable and unrealistic.

“It’s awfully difficult to come back, years later, and say the pension benefits granted to people, their vested rights which are protected by the constitution, are going to be unwound,” Goldsmith said. “Are they going to pay the librarian who retired in reliance of what was contractually promised?”

Should he be elected. Goldsmith denies he will have placed the city in an awkward position. While he thinks the case, as it stands, has its faults, he said he will give the lawsuit his full focus and attention if he gets into office. Once he has reviewed the case and vetted the research that formed it, he said, he will present his findings to the City Council and the mayor, who will ultimately decide whether to keep pursuing the lawsuit, to seek settlement, or simply to give it up.

That jives with Goldsmith’s long-stated vision for the City Attorney’s Office: That it should be returned to a non-political law firm for the city that does not weigh in on policy matters.

Aguirre claims that, by criticizing the pension case, Goldsmith has been pandering to his newfound friends, the city’s powerful labor unions, some of which recently endorsed Goldsmith and whose members stand to breathe a collective sigh of relief if the lawsuit is dropped. He said Goldsmith’s continued criticism of the lawsuit is irresponsible, unethical and a cheap political ploy to win support among certain special interest groups.

“He’s in the position where he wants to get the endorsement of the people on the other side of the case. That creates an adverse interest, and he’s clearly sold out the city’s interest,” Aguirre said.

But Goldsmith pointed out that he’s been consistent in his opposition to the pension lawsuit since the beginning of his campaign.

Indeed, Goldsmith criticized the lawsuit in the earliest debates of the primary election, even as organized labor printed flyers attacking his record. The challenger said he isn’t swayed by the interests of those who back him, and that he’s been asked to give his opinion on the case on the campaign trail and he’s given it.

“I’ve told the truth at every point, and the lawyers and judges involved in this case know that,” Goldsmith said.

Diane Karpman, a legal ethicist who writes for the California Bar Journal, said there’s nothing unethical or unprofessional about Goldsmith making a public stance on the lawsuit. Goldsmith may weaken the city’s bargaining position by opining about the lawsuit, Karpman said, but he’s also fulfilling a vital political service by informing voters about how he stands on a key element of his election campaign.

“It’s just like McCain and Obama,” Karpman said. “This is a healthy part of our political process. It allows vested interests to throw their weight in favor of one candidate or the other.”

So far, Aguirre has been unable to even get the pension case to trial. Like a rodeo rider stuck behind the stable gates, waiting to spring into the arena, he’s yet to fully present the court with the strength of his lawsuit.

He says the case has clear arguments and nuances that were either missed or misunderstood by the trial judge who, according to the opening brief for Aguirre’s appeal, “issued a Statement of Decision eviscerating the City’s lawsuit on legally erroneous and largely technical grounds.”

Goldsmith’s making the same mistake as the trial judge did before him, whether intentionally or unintentionally, Aguirre said. He claims his legal arguments will soar above the rigid technical and procedural barriers that have thus far stood in his way because they cut right to the heart of state legislation that’s designed to protect the public’s interest.

But, while the pension case is currently on appeal, what is being appealed is not the legal argument at the core of the case, but the judge’s decisions on the various procedural and technical difficulties that have so far blocked the case from reaching a full trial.

While a successful appeal would smooth the way for the case to reach trial, a positive result for Aguirre on the appeal would not necessarily validate his central claim: That the pension deals are fundamentally illegal and must be rescinded.

So, even with a successful appeal, the City Attorney’s Office would have to remain committed to pushing the lawsuit forward, through other roadblocks that would inevitably be thrown in its path, with the aim of eventually trying the case.

Goldsmith said, at the end of the day, that wouldn’t be his decision. He said he will provide the City Council with a well-reasoned opinion on the case, but that his influence ends with that legal analysis. However, while it’s conceivable that Goldsmith could flip-flop on his evaluation of the pension case if he wins office, he’s offered scant evidence that he thinks the lawsuit is even worth considering on its merits.

The past four years have shown that if the pension lawsuit is to gain any traction at all in the courts, it will need to have the strong backing of a forceful and willing advocate. For Goldsmith to become that advocate, he would need to embrace the legal arguments he has spent the last 10 months or so denouncing.

Please contact Will Carless directly at will.carless@voiceofsandiego.org with your thoughts, ideas, personal stories or tips. Or set the tone of the debate with a letter to the editor.

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