Having heard six lawyers say they had nothing more to talk about after a full day of blabber, Superior Court Judge Jeffrey Barton said what I was thinking. The legal war matching City Attorney Mike Aguirre against the city's retirement system and the public-employee unions, the judge said, “is complex factually, extraordinarily complex legally.”
Barton's remark about complexity, made in support of his announcement Monday afternoon that he'll not issue his final ruling in the case this week, was probably not good news for Aguirre, who had a really, really simple story to tell: A handful of well-connected retirement system trustees broke the law twice in the last 10 years by partnering with top city officials in a scheme that enriched the individual trustees financially and temporarily allowed the city to be a bit of a down-on-his-luck deadbeat dad with its needy pension system, and in so doing, they defrauded the taxpayers of San Diego, who never got to weigh in on whether or not the city should go into pension debt and now have to cope with a city government that can't afford to staff its parks, fix its roads or put enough cops on its streets.
Aguirre said over and over again, as if to help Barton commit it to memory, that city workers have a contractual right to a financially sound pension system. The retirement system trustees yanked away that right, he said, when they allowed the city to shortchange its pension fund and promise a fatter benefits package that it had no ability to pay for.
That Barton felt the need to say out loud how knotty the case is must have felt good to the five lawyers-representing the retirement system, the unions and some non-union city employees-who pelted Aguirre with counter arguments from several different angles and gave Barton a big legal wad to chew on. Retirement system attorney Michael Leone appeared confident as he ridiculed what he considered to be Aguirre's convoluted legal positioning thusly (and I paraphrase, but only slightly): the city is suing the city because the city shortchanged the city.
Leone and friends took aim at Aguirre's claim that there was an illegal quid pro quo to begin with. And even if there were one, they said, a violation of state conflict-of-interest law can't nullify the legislative act that created the benefits. And besides, they added, pension trustees acting this way are immune from conflict-of-interest laws because they're in a position to give themselves benefits by necessity. They also claimed debt-limitation rules don't apply to pension plans, and that previous litigation already settled the problem of the under-funding, and that it's not fair to take benefits away from people (such as retirees) who aren't represented in the courtroom. Union lawyer Ann Smith seemed to attempt to finish Aguirre off when she derided him for “cherry-picking” pieces of evidence “because they tend to support his political position.”
Or maybe it's the other way around. Maybe those lawyers figured they'd filled Aguirre's case so full of holes that Barton would quickly put the city attorney out of his misery. And maybe Aguirre's uplifted because Barton is taking his story seriously.
For his part, Barton seemed to be prodding Aguirre to tie up the loose ends: Why should the court let city government off the financial hook if it played a critical role in the quid pro quo? If the thrust of the case is that individual trustees broke the law, why wouldn't the court simply invalidate the new benefits coming their way and let the innocent employees keep their benefits? Have there been any conflict-of-interest cases that have sought to undue a legislative act?
Without question, Aguirre has necessarily put himself in an awkward spot. He's in court representing a city government he thinks has committed an act of corruption. He'd like to think the mayor supports him, but the mayor is waiting skittishly on the sidelines. He doesn't have the support of the City Council because half of them voted in favor of the quid pro quo in 2002. An Aguirre win would make managing the city budget much, much easier-the city attorney reckons it would save the city hundreds of millions of dollars-but backing Aguirre would be akin to admitting wrongdoing.
It's funny how the law sometimes can get in the way of justice. The evidence clearly shows that pension trustees and city officials conspired to do the taxpayers wrong in 1996 and 2002, but Barton may find too many legal obstacles in the way of imposing the remedy Aguirre seeks, and it takes only one.
Certain members of the City Council are quietly hoping for a crushing loss for the city attorney, and they may get it-but an Aguirre defeat leaves future taxpayers holding the bag, and that will be the City Council's legacy, this City Council's shame.