Wednesday, February 20, 2008

Scott Lewis explains the Mike Aguirre-City Council-pension lawsuit connection

From Voice of San Diego
by Scott Lewis

Having It Both Ways

A reader, who is an attorney, wrote me an e-mail about the revived ambiguity surrounding the 2005 vote (or non-vote) the City Council supposedly took to authorize City Attorney Mike Aguirre's legacy lawsuit to roll back city employee pension benefits.

Remember yesterday's reminder of what Council President Scott Peters argues: that Aguirre only received authorization to sue in his own name.

Here's the attorney:

I too have always been confused on how that went down. I'm not sure what it means to authorize Aguirre to sue in his own name? He's the City Attorney for crying out loud! Did they mean he could sue as an individual? In that case, he really didn't need their permission.

What also always irritated was that if the Council felt like their position on this was misunderstood and they really did not want him to file the suit, why did they not revote and clarify their position at the next Council meeting or anytime thereafter??? Don't get me wrong I absolutely believe the City Attorney can not file this type of lawsuit without Council approval. I just thought they left him an out with their ambiguity and never clarified as they most certainly could have.

This is a vitally important point. If the City Council never authorized Aguirre to sue to roll back what he claimed were illegal pension benefits, why in the world did they never do a single thing about it?

This may be why the issue is coming up now. One of the big arguments Peters and the gang looking to throw Aguirre out of office will undoubtedly use is the meme that Aguirre has been a reckless litigator.

If he has been a reckless litigator, his most reckless litigation is the pension lawsuit. But how can Peters (and his colleague Brian Maienschein) possibly argue that this was as reckless as they say if they authorized him to file the lawsuit?

The State Bar, by investigating this, is enabling Peters and Maienschein to float the idea that they never did authorize the litigation.

It should be remembered, of course, that they never did anything to stop it either.

But regardless, this can all be cleared up if the City Council would release the transcript of what really happened at that meeting. But they decided only to give the transcript to the State Bar.

How convenient.

Wednesday, February 20 -- 3:02 pm

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The Meeting in Question
In light of today's U-T report on the State Bar investigation into City Attorney Mike Aguirre, I'm having flashbacks of a series of columns I did in 2005 about the meeting that is apparently at the center of the Bar's probe.

Flashback with me: Watching a City Council meeting in August of that year, I was shocked to see then Assistant City Attorney Les Girard quietly announce that the City Council had authorized City Attorney Mike Aguirre to sue to get rid of pension benefits he thought city employees had illegally secured.

It was a stunner. I rewound the tape a couple of times to make sure I understood him because the City Council had, until that point, never been too enthusiastic about Aguirre's expressed desire to completely roll back benefit enhancements city employees had secured in the 90s and in 2002.

So I called Aguirre to confirm and wrote up what I thought was big news.

Don "The Rat" McGrath today tries to explain the city attorney's side.
It suddenly got the attention of both union leaders and a blogger named Pat Flannery neither of whom completely believed me until they too saw the tapes. When Ann Smith, the lawyer for the city's Municipal Employee Association heard about it, she wanted to know what was going on as well and sent a letter to the City Council asking.

I wrote up a followup after asking a couple of City Council members.

On Aug. 9 just before the City Council broke its meeting to go to lunch (at 1 hour, 43 minutes into the archived video on the city's Web site -- for the really interested), Assistant City Attorney Les Girard made this announcement:

"Last week in closed session, by a unanimous vote, the City Council authorized the city attorney to pursue a modified cross complaint in the action of SDCERS v. the city of San Diego and City Attorney Michael Aguirre."

Heck, it's my blog, I'm just going to reprint the best part of the column here:

In an interview Aug. 12, Aguirre said that the council had "joined the city attorney" in his legal pursuits against the pension board on the condition that he drop his contention that individuals named in the suit be held personally liable for their actions. That was how the complaint was "modified," Aguirre said.

"This is an area where the City Council has chosen to support the city attorney," he said.

He reaffirmed his statements last week.

But relations among the city leaders have apparently deteriorated so badly that they can't even agree on what official actions they have taken.

Deputy Mayor Toni Atkins released a one-line reaction.

"The Council took no action nor a position on benefits being legal or illegal nor allowing the City Attorney to be counsel for the [San Diego City Employees' Retirement System] board," Atkins said.

Since it's the only statement we have from her on this, we have to take each word for what its worth.

Let's see that again: "The Council took no action nor a position on benefits being legal or illegal."

So what did they do? Why did Les Girard announce in an open council session that "the City Council authorized the city attorney to pursue a modified cross complaint ..."

Is that not an "action"?

Atkins' colleague, Councilman Scott Peters, acknowledges that the council took an action, just not an action with the impact Aguirre describes.

Here's Peters' take.

"...the City Council has authorized the city attorney to allege illegality in his name only," Peters wrote (emphasis added) in a memorandum to Aguirre disputing language Aguirre uses in court documents.

Peters made his case to Voice of San Diego Thursday.

"No one has signed on to his view that the benefits are illegal. He has been authorized to make that argument in his own name but not on behalf of the City Council or the City of San Diego," Peters said. "I would never have voted to authorize him to litigate this illegality issue if the retirement board hadn't brought it up."

Peters said the authorization the council granted Aguirre "in no way" signifies official City Council support for Aguirre's legal maneuver.

Isn't it, however, a bit more supportive than, say, not authorizing him?

Peters explained that, in this instance, it's the retirement board's fault. The pension system, in July, filed a complaint asking a judge to determine if -- in light of Aguirre's blistering investigative reports -- benefits it was paying out were illegal or not.

The pension board had also filed a lawsuit against Aguirre after he tried to take over the attorney chair at the agency.

Now, fast forward two-and-a-half years and the state bar apparently is suspicious of whether the City Council actually did give Aguirre authorization to do the lawsuit or not. And that, we're all assuming, must be something the Bar has a serious problem with. The Bar, according to the U-T's Alex Roth, has asked for a transcript of the secret meeting Girard had referred.

Let's just say that if the City Council does waive the right to keep that transcript private, I will be the first in line to get a copy. It never was entirely clear what the City Council authorized and didn’t.

But I'll repeat this one point I've been making for a couple of years now: Aguirre always argued that he didn't need the City Council to approve his litigious actions yet in times like this, he sought and trumpeted their approval. If he didn't need their approval and really believed that, he probably would never have sought it.

Tuesday, February 19 -- 1:07 pm

1 comment:

Emanuel McCray said...

Right On! I can only add this:
San Diego Union Tribune:
“Opposing lawyers in the pension litigation have complained for several years that Aguirre didn't obtain proper authorization from the council to proceed with the suit on the city's behalf.”

If true, why did the City allow its attorney to pursue litigation for “several years” and appeal the matter? Not to forget the fact that two City Council Members are lawyers. Let me say this:

California Civil Code § 3519. Failure to forbid act: He who can and does not forbid that which is done on his behalf, is deemed to have bidden it.
California Civil Code § 3521. Benefit and burden: He who takes the benefit must bear the burden.
California Civil Code § 3540. Relationship between incident and principal: The incident follows the principal, and not the principal the incident.

Looks to me someone has a good follow up complaint against the City.

If it smells like perfumed tuna fish, it is probably is nothing more than Granny Clampett fixing up a batch of possum stew.

Emanuel McCray

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