When Mara Elliott was first running for the job of San Diego city attorney, she did not think it should be an elected position. She was willing to run but had come to the conclusion that the city attorney would need to act much more like a general counsel for City Hall leaders than an independent check on them.
“I see our role as the city attorney as looking at the legality of something and, even if it’s a bad idea, not having that ability to undo it. So we should be assessing whether the deal that’s been struck is legal, but that’s it,” she told me in September 2015.
She said, she would make it an appointed position if she could, not an elected one.
“I would, if I had a magic wand, it would be appointed because qualifications and experience matter and with an election you don’t necessarily need to have,” she said.
It’s fair to say she has changed her mind.
The Rules Committee of the San Diego City Council is set to have a discussion about whether to put on the ballot a measure that would vastly reshape the role of the city attorney. Right now, the city attorney not only handles the legal advice, litigation and analysis for city officials, the office also prosecutes criminal misdemeanors in the city. The ballot measure as proposed would eliminate the elected city attorney for the advice and litigation part – the civil side – and the elected city attorney would simply handle the misdemeanor prosecutions. Jared Quient, a local Democratic political maven and renewable energy entrepreneur, and Gil Cabrera, an attorney who ran against Elliott for the job in 2016 put forward the proposal.
In a memo blasting their idea, Elliott called it “the largest structural change to City Governance in decades.”
Excuse me. Hold on for a second.
(“Hello?” “Hi, yes, this is the Strong Mayor Form of Government.” “Ah yes, hi there. How have you been?” “Ah just the usual – taking blame for dysfunction at City Hall. As if the system before me was perfect.” “Yeah, there are some old dudes who can’t stop talking about you. What can I do for you?” “Well I would like to take issue with what you just wrote. It has only been 17 years since I have been in place and I radically reshaped how City Hall functions and people are still learning about the powers the mayor does and does not have because of what I wrought. I think I was the biggest structural change in city governance by far.” “That’s a good point, Strong Mayor Form of Government. Anything else?” “That should do it. Thanks.”)
Elliott said the proposal would give the City Council majority control over legal advice.
“The Proposed Measure would pit elected officials against one another; interfere with equitable access to legal services, reduce accountability from elected officials, and decrease transparency, all while increasing the City’s annual costs by creating a separate and distinct legal department,” Elliott’s memo read.
She also bristled at the suggestion by Quient and Cabrera that the new office would increase transparency. She writes that they didn’t provide any evidence for their claims.
“The City Attorney’s Office is likely the most transparent public sector legal office in the State of California,” she wrote. She did not provide any evidence of this claim besides a list of reports they put out nor any comparison with the list or reports other legal offices put out.
The biggest point: The most interesting point Elliott makes in her memo is this one: “The Proposed Measure eliminates a branch of City government …”
A branch of city government? This borrows the language of the three branches of the federal government: executive, legislative and judicial. It is fascinating that Elliott, after seven years in the job, has gone from seeing the city attorney’s role as a legal services provider for the Council and the mayor to now seeing her department as the Supreme Court of the City of San Diego.
The counterpoint: I contacted Cabrera for a response. He pointed at that line as well.
“We have seen over the last three city attorneys a lot of tension between the political interests of the city attorney and the advice they are giving. We want to re-establish the city attorney as the true attorney for the city of San Diego and take out the political considerations,” Cabrera said.
He cited Elliott’s strenuous objection to the City Council’s decision to settle the litigation over 101 Ash Street, which, he said, was a policy decision not a legal question.
He said every city attorney since Mike Aguirre has seen how easily they can be involved in policy and shape it and that’s irresistible. Seeing the city attorney as a judicial branch of the city is.
“A lot of lawyers get into the business issues of their clients. They’re calling balls and strikes and the client makes the call on what to do after hearing the risks. The difference is, with an appointed city attorney, we wouldn’t have a weird dynamic where they don’t have to be responsive to their client,” he said.
Because they would not see themselves as a fully distinct branch of the city government.
Aguirre’s take: Former City Attorney Mike Aguirre emailed after our recent podcast episode about the topic.
“The City Attorney is hired by the pubic to make sure the City Attorney administers the office in the public’s interest and not simply be a rubber stamp for the Mayor and City Council,” he said.
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