Accusations Fly in Unusual City Council Discussion on Audit Committee Appointment

They just don’t seem to like, or trust, each other.

Deep tensions between the San Diego city attorney, independent budget analyst and multiple City Council members came out in a City Council meeting Monday that became an uncommon display of acrimony among public officials.

The dispute went public after months of behind-the-scenes wrangling failed to solve a disagreement over the re-appointment of Stewart Halpern to the city’s audit committee, a body including members of the public and Council members that reviews reports from the city’s auditor. It also votes on recommendations to improve city processes based on them.

Beginning with a letter last April, City Attorney Mara Elliott argued that Halpern had an incompatible conflict of interest because he also serves on a similar committee for the San Diego Association of Governments. Halpern, and his attorney Gil Cabrera, a former chair of the city’s ethics commission, argued there was no conflict of interest in sitting on both committees.

But during an hour hearing Monday, that conflict served as the springboard for an onslaught of accusations of ulterior motives and barbed personal defenses.

Councilwoman Vivian Moreno, who served on the audit committee with Halpern, said there was no conflict of interest and that it was a shame a volunteer had been forced to hire legal counsel to defend his reputation.

“The question is, ‘Why?’” she said. “When he was appointed, there was no conflict found. So why are we here now? I believe this is retaliation because Mr. Halpern has challenged the city attorney’s opinion on the city auditor’s need for independent legal counsel. And if we go along today not bringing forward a reappointment for Mr. Halpern to the audit committee, we are complicit in that retaliation. It will have a chilling effect across the city. Every current or future board or commission member will have been put on notice that if they dare to criticize the city too much, that this Council is willing to allow them to be punished.”

The city auditor’s office last spring pursued a ballot measure that would give it independent legal counsel, rather than relying on the city attorney’s office, which also represents the city departments that the auditor analyzes.

Kyle Elser, the city’s former interim city auditor, made a similar accusation.

“I also think the city attorney’s opposition to Mr. Halpern’s appointment may be politically motivated, because he rightfully criticized the city attorney’s handling of the 101 Ash St. building purchase after it was audited, and he supported the city auditor’s attempt to obtain independent legal counsel,” Elser said.

Elliott, visibly upset throughout the meeting, ignored those accusations, but reiterated the conclusions in her legal memos ahead of the meeting: Halpern had a prohibited conflict of interest under state law and couldn’t be reappointed.

“Whatever decision you make today should be guided by the city’s best interests, not by friendships, or politics, or animosity toward the person delivering the message,” she said. “Often, my office is the scapegoat.”

The idea that the Council was pushing for Halpern’s reappointment because of personal relationships led to a pointed exchange between Councilwoman Monica Montgomery Steppe, Independent Budget Analyst Charles Modica and Elliott.

“The city attorney late Friday said I was bringing this item forward because council members ‘like’ Halpern,” said Modica, whose office manages the process of appointing members for the Council. “My office’s reports, recommendations and analyses are not based on whether or not I think they will be liked.”

Montgomery Steppe also took issue with the implication and asked Elliott where she got that idea.

“When I asked (Modica) why he was moving forward, he told me it’s because the Council members said they liked Halpern,” Elliott said. Montgomery Steppe asked Modica, who was sitting right next to Elliott, to respond.

“I am sorry to say, that is simply not true,” he said.

Montgomery Steppe said it was disturbing that conversation between officials and its legal counsel would end up in a public document.

“Oftentimes, that characterization of attorney-client privilege is used in whatever way the city attorney interprets it at the time, and I have a really big issue with that,” she said.

Councilman Joe LaCava tried to sort out whether SANDAG thought there was a conflict, as was suggested in an October memo from Elliott’s office. Elliott said SANDAG’s counsel was deferring to the city, but LaCava asked if the agency had made any attempt to remove him from committees.

“He is an appointed counsel – so, if an elected counsel gets this kind of feedback, I can only imagine what an appointed counsel would think about bringing something like this to an elected body,” she said.

The Council ended up voting 5-3 to bring Halpern’s reappointment back for another vote, and to ask the attorney general to weigh in on whether his appointments constituted conflicts of interest. The three dissenting votes – Council members Marni von Wilpert, Raul Campillo and Stephen Whitburn – wanted the Council to simply ask for the AG opinion and to let Halpern continue to serve on his expired term in the meantime. He is termed out from his SANDAG appointments in mid-May, and the AG’s opinion isn’t expected back by then.

“I also do want to say that, I am really deeply saddened to see some of the people I respect most and who are the smartest, most intelligent people I’ve met – including everyone in this room – debase to personal attacks on anybody,” von Wilpert said. “That’s been a theme throughout the time I’ve been on the dais… I don’t believe that personal attacks are warranted ever, in a civil government debate we are having, and they actually hold no sway with me. Whether it’s the city attorney, the IBA and everyone on this dais, I think you’re all doing a great job trying to uphold your duties.”