City Attorney Mike Aguirre would rather be Batman than Superman. Not that he's said as much to CityBeat or anyone else, but his style, the way he defies government critics-he fits the role of the darker Caped Crusader.
The San Diego City Council and other movers and shakers might prefer a city attorney more like Superman, the hero who, as any astute Frank Miller reader knows, prefers obedience in exchange for serenity. For that matter, most of them would rather the city attorney play more of a supporting role-a Wonder Twin perhaps, or Aquaman. Someone more agreeable, certainly.
You can tell they feel this way, because at the March 28 City Council meeting, they voted 6-2 to slap Aguirre with a restraining order. Well, not a real restraining order. Technically, they commanded the city auditor to not pay for any legal services performed by the city attorney when he files a lawsuit in which the city is a plaintiff. Or, to restate it just once more, the council said, “Mike, stop filing lawsuits without our permission.”
“I told Scott Peters I couldn't vote on the budget without doing something about the city attorney,'City Councilmember Ben Hueso told CityBeat.
So City Council President Peters whipped up a budget amendment, and Hueso proposed it at the very end of a lengthy debate. But even Councilmember Toni Atkins, who voted for the change, agreed that the deputy city attorneys present at the hearing were ambushed.
Thirty minutes later, it had been discussed and decided. Even that brief debate was too long for Peters, who repeatedly tried to cut off discussion and have a vote, despite objections from Councilmembers Kevin Faulconer and Donna Frye. He became particularly annoyed when Faulconer asked to put off the vote so there could be a public notice and a full discussion of the city attorney's powers.
“We had that discussion a few years ago,'Peters said, referring to forum held in 2005 in which experts dueled to a deadlock on the role of the city attorney. “I'll send you a DVD of the discussion.”
The stated motivation for the amendment was the money spent on outside attorneys to prosecute “frivolous lawsuits,'filed by Aguirre without the City Council's permission.
But pressed for numbers or cases, none of the council members interviewed for this story (all but Maienschein and Madaffer, who tend not to field CityBeat's calls) could produce examples of these cases; some couldn't think of examples, while others cited restrictions on discussing what goes on in closed-door meetings in which the city attorney's lawsuits are vetted. Nor did anyone have figures on the amount of money San Diego is spending on Aguirre's suits. So perhaps the motion was motivated by something more than a policy issue or budget issue.
Maybe it's personal. Peters rarely has anything nice to say about Aguirre, and he often leaves the room when Aguirre has the floor in council or committee meetings. In numerous interviews over the past year with CityBeat, Hueso has emotionally detailed his disagreements with Aguirre. Madaffer usually has sharp words for the city attorney when he addresses him at all. “This isn't about personalities,'Aguirre told CityBeat. 'This is a philosophical difference. I'm for open government, and other people, like Scott Peters, are only for special interests.”
OK, so maybe it's a little about personalities.
But the undercurrents run deeper than dislike. Consider these two remarks:
'We never had these problems under Casey Gwinn,'Peters said at the March 28 meeting, referring to the previous city attorney, a man later vilified by private consultant Kroll Inc. for sitting idly by while city officials perpetrated the pension scandal.
'Never in the history of San Diego since a city attorney has been elected, has a city attorney not gone to the City Council for approval for filing lawsuits,'Hueso said. 'He is the first city attorney in our city's history that claims he has autonomy on the lawsuit-filing issue.”
And that may be the point. Aguirre breaks the mold of a city attorney. He grounds his authority in City Charter Section 40, which says the city attorney has the responsibility 'to prosecute or defend, as the case may be, all suits or cases to which the city may be a party.'That is the foundation for all of Aguirre's authority; it licenses him, in his mind, to file any suit he needs to.
'I think Casey Gwinn was more of a typical city attorney,'said Brian Adams, a professor of political science at San Diego State University. 'They saw their role as supporting the City Council and mayor. They weren't confrontational.”
And that's what people expect; it's the way city attorneys function in most of the rest of California. But Aguirre doesn't provide that kind of service. And in so doing, he has highlighted a dichotomy in the city attorney's office that has existed since the people decided to create an elected city attorney in 1931.
'There's two different ways to look at the city attorney,'said Adams. 'One role is simply to provide legal advice to the council and the mayor. Another role is to see the city attorney as an oversight agency, to actually check the power of the mayor and city council. There's this inherent tension in the city attorney's office itself.”
On the count of oversight, Aguirre's zealousness cannot be questioned. Indeed, the City Council thinks he's overzealous (a vigilante, like Batman). But Adams credits Aguirre's numerous interim reports, his demands for documentation and back-up information for shattering the status quo in San Diego and forcing grand actions to clean up the mess. But then there's the rest of the job-the mundane, humdrum world of writing legislation and answering legal memos from council members. And it's here that he draws complaints.
A favorite example of Peters has been the smoking ban on beaches and parks passed last summer. The way Aguirre wrote the ordinance, the Mission Beach boardwalk was excluded. The ban passed in June, and Peters has been trying to get the bill amended ever since. This week, Peters' office finally got corrected language to submit to the council.
'We've had three deputy city attorneys in that time, and we've had to hound them to get this,'said Peters' spokesperson, Pam Hardy. Mayor Jerry Sanders generally agrees with the City Council's concerns. 'Things get lost over there. Things get bogged down,'said Fred Sainz, Sanders' spokesperson. 'The advisory nature of the attorney's office is not tip-top.”
Sainz said Sanders hears these complaints from department heads and other city officials.
'I hear from city officials all the time that they're afraid to speak out against the city attorney because they'll be accused of corruption,'Atkins said. Hueso echoed that theme.
Aguirre says he has totally reorganized his office, replacing status-quo types with better lawyers. He said his office is flooded with 'a thousand little requests,'well beyond what his predecessor had to manage.
But a state Public Records Act request by CityBeat revealed that in 2006, Aguirre received only 67 written memoranda from the entire City Council (including none from the offices of Faulconer or Maienschein). Some of these were repeat requests asking for information that had been requested months earlier. Requests from city departments are protected by attorney-client privilege.
Then again, his advice may be better than City Council members realize. Most recently, the council authorized hundreds of thousands of dollars to pay for outside attorneys to represent the city in lawsuits over a Hillel community center in La Jolla and a bridge over Rose Canyon in University City. In both, Aguirre was right.
Ultimately, there is one lawsuit that Aguirre's critics point to: the suit to roll back hundreds of millions of dollars of pension benefits Aguirre believes were granted illegally as a result of an illegal deal in 2002. He has lost crucial decisions at the trial and appellate levels, and his appeal to the state Supreme Court triggered the City Council's recent effort to restrain him.
To Peters, the suit is a waste of time because he's sure the city will lose. And he's furious that the council has to authorize funds for a case they never expressly permitted. But to Aguirre, there is nothing more important than solving the pension mess. Unfortunately for him and for the city, he keeps losing.
Aguirre himself isn't worried that the council is trying to rein him in. He believes City Charter Section 40 will carry the day, plus he cites a case in San Bernardino, where the city council tried to use its budgetary power to control a city attorney and a judge ruled against the city. Aguirre's office is preparing a legal memo now that he's convinced will prevent the council from giving the measure final approval. He wouldn't speculate on what he would do if the budget amendment became law.
'There's no need to raise temperatures speculating,'he said. 'The council will do the right thing here.”
On second thought, maybe he's not such a good Batman figure after all. The Dark Knight never had such optimism.