San Diego police are sorry they sued the city
Lorie Hearn
Watchdog Institute
December 16, 2010
By Kelly Thornton
The San Diego Police Officers Association has sued the city several times in recent years, and the city has spent $8.6 million to fight them so far. That makes the city’s own cops its most expensive legal adversary.
Now, the officers are sorry.
The police union has a new lawyer who called two of three lawsuits “frivolous” and has filed two malpractice lawsuits against the attorneys who sued in the first place.
“The San Diego Police Officers Association knows this was expensive litigation for the city and has apologized profusely and we’ve done what we can to make it right,” said the POA’s new attorney, Michael Conger, an employment, business and personal injury lawyer from San Diego. “We’ve gotten rid of any litigation to the city related to this nonsense.”
In total, there are 23 lawsuits filed against the city between 2003 and 2010 in which the city has spent more than $1 million. The POA cases are three of those. For all 23 cases, the city has spent $55.3 million, according to an analysis by the Watchdog Institute, a nonprofit investigative reporting center based at San Diego State University.
One of the three cases brought by the POA was to force the city to pay officers for time spent putting on uniforms and protective gear and answering work-related emails. Another case accused then-City Attorney Michael Aguirre of bribery and extortion related to contract negotiations, and sought his removal from office. A third suit was a spinoff of the second; both alleged that the city’s underfunding of the pension violated police officers’ constitutional rights.
The POA lost all three cases – two at summary judgment, meaning a judge didn’t even think the case was worth going to trial. In the overtime case, a federal jury decided in favor of the city after a six-week trial.
More than 1,000 officers opted to drop any appeals based on advice from Conger. The previous lawyer, Gregory Petersen, an Orange County civil rights and employment attorney, is appealing one of the cases on behalf of about 100 clients who’ve stuck with him.
As the cases dragged on, POA members’ credit cards were charged $20 to 40 a month. To cover legal fees, the organization had to mortgage its headquarters.
“I think they were hurt dramatically,” Conger said of the officers. “They paid Petersen over $2.8 million for the privilege of bringing frivolous lawsuits, and he didn’t win one single motion. He doesn’t think he did anything wrong and doesn’t want to pay a dollar.”
At the same time, the financially crippled city hired an outside legal firm, Latham & Watkins, at up to $750 an hour, because the city had a conflict defending against its own employees...
Showing posts with label Mike Aguirre. Show all posts
Showing posts with label Mike Aguirre. Show all posts
Friday, December 17, 2010
Wednesday, May 27, 2009
How can this be? Jan Goldsmith is the new Mike Aguirre? Or is Mayor Sanders the problem?
Fight Like It's 2007
Voice of San Diego
During Mike Aguirre's term as city attorney, nobody dogged him as diligently as John Kaheny.
Kaheny's relentless e-mails sometimes broke news about the city attorney and sometimes spread conspiracy theories more ridiculous than the ones Aguirre was sometimes wont to spin. But always, Kaheny, a former assistant city attorney, was on Aguirre's case and his e-mail list served as an almost daily talking points memo for the ever-growing ranks of Aguirre's dissenters. I don't know that anyone locally has ever so effectively used e-mail, document sharing and media criticism to gore a rival.
Kaheny declared victory months ago when Aguirre lost his re-election bid and he said the network would largely go quiet.
It's back.
In case you hadn't noticed, there seems to be a rising tide of concern about City Attorney Jan Goldsmith along with a growing lack of respect for the mayor. First, months ago Goldsmith infuriated some local opinion leaders and Mayor Jerry Sanders for ruling that the City Council could basically ignore the mayor's recommendations on labor negotiations. This became moot -- this year at least -- when the City Council decided to agree with the mayor unanimously. Nonetheless, the Mayor's Office thought it was a ridiculous opinion and it began to foment unrest about Goldsmith's competence.
Now, Rani Gupta's story Sunday has documented another major rift between the city attorney and mayor.
Gupta reported that the Mayor's Office was struck dumbfounded that its much-championed reforms to the city's controversial DROP benefit for employees would be subject to a vote of those same employees. Where was the city attorney on this?
Key passage in the story:
The news that the DROP changes apparently require a vote of the employees was news to Sanders' office, Chief Operating Officer Jay Goldstone said in an interview last week.
"It was a bombshell that was dropped after the fact," Goldstone said. "I'm not necessarily suggesting we would have taken a different position, but we would have known going in that the imposition was only step one of a two-step process."
Goldstone said it "would have been nice" if Goldsmith's office had told city officials about the requirement beforehand. He added, "I will tell you candidly, they will claim they told us and told our lawyers at least, our negotiators, but we (in the Mayor's Office) were not aware up here."
Several hours later, after a reporter called for comment from the city attorney, Goldstone called back to offer a different version of events, saying a conversation with the city attorney had refreshed his memory about the situation.
Goldstone said that the city's outside attorneys from the firm Burke Williams & Sorensen had talked to SDCERS officials during negotiations and, based on those conversations, had advised that the city had a "very strong argument" that the provision of the city charter requiring a vote didn't apply to the changes the city was seeking to make to DROP.
The City Attorney's Office, Goldstone said, never told city officials or even strongly suggested that changing DROP required an employee vote.
Kaheny, the prolific e-mailer, grabbed the story and sent it to his network with a note essentially hinting at incompetence in the City Attorney's Office (or, maybe worse for Kaheny's group, that the office has yet to restore competence). Since Jan Goldsmith, the current city attorney, has Kaheny to thank as much as anyone for getting the job, this was a potentially hurtful development. If questions about his own abilities to run the office become more mainstream, watch out.
Here was Kaheny's note:
I have no clue what is going on. It appears that the institutional memory was completely destroyed by Gwinn and Aguirre and that Goldsmith hasn't quite figured that out yet.
Wow. Someone in Goldsmith's office responded to Kaheny assuring the curmudgeon that Goldsmith was not to blame and attacking the mayor. Kaheny passed it along. Here was the note:
No John... Jan told them. Joan Dawson delivered the message... Sanders did not want to hear it & Bill Kay told Sanders what he wanted to hear so they moved forward. Kay & his firm are also handling litigation not the City Attorney...
Bill Kay is the city's labor negotiator. Yes, what we have here is a full-throated battle between the Mayor's Office and City Attorney's Office complete with accusations of reckless political agendas and incompetence! I went to D.C. last week and came back to 2007!
Kaheny responded to the anonymous city attorney staffer.
If the City Attorney so advised why was it not it not in writing and made public? Inquiring minds need to know.
Stay tuned. This isn't just insider intrigue. Aguirre was supposedly the main reason the mayor had trouble implementing his reforms and fixes for the city. Now one of the mayor's most prominent initiatives -- to roll back the most controversial of all city employee compensation issues -- might not work and he's blaming the new city attorney.
-- SCOTT LEWIS
May 27, 2009
Voice of San Diego
During Mike Aguirre's term as city attorney, nobody dogged him as diligently as John Kaheny.
Kaheny's relentless e-mails sometimes broke news about the city attorney and sometimes spread conspiracy theories more ridiculous than the ones Aguirre was sometimes wont to spin. But always, Kaheny, a former assistant city attorney, was on Aguirre's case and his e-mail list served as an almost daily talking points memo for the ever-growing ranks of Aguirre's dissenters. I don't know that anyone locally has ever so effectively used e-mail, document sharing and media criticism to gore a rival.
Kaheny declared victory months ago when Aguirre lost his re-election bid and he said the network would largely go quiet.
It's back.
In case you hadn't noticed, there seems to be a rising tide of concern about City Attorney Jan Goldsmith along with a growing lack of respect for the mayor. First, months ago Goldsmith infuriated some local opinion leaders and Mayor Jerry Sanders for ruling that the City Council could basically ignore the mayor's recommendations on labor negotiations. This became moot -- this year at least -- when the City Council decided to agree with the mayor unanimously. Nonetheless, the Mayor's Office thought it was a ridiculous opinion and it began to foment unrest about Goldsmith's competence.
Now, Rani Gupta's story Sunday has documented another major rift between the city attorney and mayor.
Gupta reported that the Mayor's Office was struck dumbfounded that its much-championed reforms to the city's controversial DROP benefit for employees would be subject to a vote of those same employees. Where was the city attorney on this?
Key passage in the story:
The news that the DROP changes apparently require a vote of the employees was news to Sanders' office, Chief Operating Officer Jay Goldstone said in an interview last week.
"It was a bombshell that was dropped after the fact," Goldstone said. "I'm not necessarily suggesting we would have taken a different position, but we would have known going in that the imposition was only step one of a two-step process."
Goldstone said it "would have been nice" if Goldsmith's office had told city officials about the requirement beforehand. He added, "I will tell you candidly, they will claim they told us and told our lawyers at least, our negotiators, but we (in the Mayor's Office) were not aware up here."
Several hours later, after a reporter called for comment from the city attorney, Goldstone called back to offer a different version of events, saying a conversation with the city attorney had refreshed his memory about the situation.
Goldstone said that the city's outside attorneys from the firm Burke Williams & Sorensen had talked to SDCERS officials during negotiations and, based on those conversations, had advised that the city had a "very strong argument" that the provision of the city charter requiring a vote didn't apply to the changes the city was seeking to make to DROP.
The City Attorney's Office, Goldstone said, never told city officials or even strongly suggested that changing DROP required an employee vote.
Kaheny, the prolific e-mailer, grabbed the story and sent it to his network with a note essentially hinting at incompetence in the City Attorney's Office (or, maybe worse for Kaheny's group, that the office has yet to restore competence). Since Jan Goldsmith, the current city attorney, has Kaheny to thank as much as anyone for getting the job, this was a potentially hurtful development. If questions about his own abilities to run the office become more mainstream, watch out.
Here was Kaheny's note:
I have no clue what is going on. It appears that the institutional memory was completely destroyed by Gwinn and Aguirre and that Goldsmith hasn't quite figured that out yet.
Wow. Someone in Goldsmith's office responded to Kaheny assuring the curmudgeon that Goldsmith was not to blame and attacking the mayor. Kaheny passed it along. Here was the note:
No John... Jan told them. Joan Dawson delivered the message... Sanders did not want to hear it & Bill Kay told Sanders what he wanted to hear so they moved forward. Kay & his firm are also handling litigation not the City Attorney...
Bill Kay is the city's labor negotiator. Yes, what we have here is a full-throated battle between the Mayor's Office and City Attorney's Office complete with accusations of reckless political agendas and incompetence! I went to D.C. last week and came back to 2007!
Kaheny responded to the anonymous city attorney staffer.
If the City Attorney so advised why was it not it not in writing and made public? Inquiring minds need to know.
Stay tuned. This isn't just insider intrigue. Aguirre was supposedly the main reason the mayor had trouble implementing his reforms and fixes for the city. Now one of the mayor's most prominent initiatives -- to roll back the most controversial of all city employee compensation issues -- might not work and he's blaming the new city attorney.
-- SCOTT LEWIS
May 27, 2009
Sunday, December 14, 2008
Jan Goldsmith: right wing and reckless? Andrea Dixon and developers are back in favor.
Jan Goldsmith is still going negative after being sworn in. Jan Goldsmith apparently likes campaigning more than he likes the job of San Diego City Attorney. In his inaugural speech, he combined his fondness for developers with some reckless, unsubstantiated allegations.
Goldsmith stirs up criticism with claim
Inaugural speech lashed out at foe
By Matthew T. Hall
SAN DIEGO UNION-TRIBUNE
December 14, 2008
The rub on Michael Aguirre was that he was reckless: He made unsubstantiated allegations that were beneath the dignity of any lawyer, much less San Diego's city attorney.
No one sounded that criticism louder than Judge Jan Goldsmith, who used it to unseat Aguirre in an election last month.
But in his first five minutes in office, Goldsmith made an unsubstantiated allegation of his own. During his inaugural speech in front of 2,000 people Monday, Goldsmith alleged that Aguirre had reassigned an attorney who dared to take an ethical stand in an office run amok.
From the dais, Goldsmith restored Deputy City Attorney Andrea Dixon to her old position advising the Planning Commission. Afterward, he declined to back up his claim or elaborate on it.
“I really think it says something about his character and integrity that he's willing to jump on this for political advantage to continue to grind his heel into Mike,” said Kathryn Burton, who was an assistant city attorney under Aguirre. “He made spurious accusations about the office and the management of the office that he hasn't even vetted. In a funny way, he's as reckless as Mike is.”
...The inauguration came a month after the supposed end of a tough political campaign in which Goldsmith said Aguirre habitually circumvented due process and Aguirre said Goldsmith was too close to builders and business interests.
A quarter of Goldsmith's high-profile speech involved the tale of Dixon being punished for refusing “to do something that she was ordered to do because it violated her ethical obligations.”
...Another former assistant city attorney, Karen Heumann, said a belief that Dixon was rubber-stamping development projects played a role in her being removed from Planning Commission duties.
Burton and Heumann said Goldsmith never spoke to them before making his accusation, to hear their version of what happened. Both were relieved of duty during the transition.
The public accusation by Goldsmith is surprising because, again and again in his campaign, he criticized Aguirre for making unfounded allegations.
“Your work is based upon conduct and actions, not based upon a lot of accusations and hot air and making enemies,” Goldsmith said at one televised debate. “That's a huge difference between us. I have never shot first and asked questions later...
UTC expansion
Retail giant Westfield's proposal for a $900 million expansion of its University City shopping center was at the center of the Dixon dispute.
The company sought approval to add 750,000 square feet of shops and 250 to 300 condominiums, raising concerns for neighbors about traffic, noise and other environmental issues.
Two July 25 e-mails show Burton asked Dixon to rewrite her memo reviewing the project to more fully analyze the legal issues and “to protect the public interest.”
Dixon wrote, “While I am very aware the project is controversial, I have not found any legal inadequacies in the EIR (environmental impact report), nor is there anything illegal concerning the draft permits.”
Burton replied, “Irrespective of any personal opinion regarding the merits of the project or the merits of the EIR, any opposition position that could prove problematic for the decision maker should be addressed.”
Burton added, “When I spoke to you about the project, you shrugged your shoulders and said: 'Ehhhh, the council is going to do what the council is going to do. Nothing we write will change that.' Your work on this project has not been of a quality that could be approved for distribution to the council.” ...
Goldsmith stirs up criticism with claim
Inaugural speech lashed out at foe
By Matthew T. Hall
SAN DIEGO UNION-TRIBUNE
December 14, 2008
The rub on Michael Aguirre was that he was reckless: He made unsubstantiated allegations that were beneath the dignity of any lawyer, much less San Diego's city attorney.
No one sounded that criticism louder than Judge Jan Goldsmith, who used it to unseat Aguirre in an election last month.
But in his first five minutes in office, Goldsmith made an unsubstantiated allegation of his own. During his inaugural speech in front of 2,000 people Monday, Goldsmith alleged that Aguirre had reassigned an attorney who dared to take an ethical stand in an office run amok.
From the dais, Goldsmith restored Deputy City Attorney Andrea Dixon to her old position advising the Planning Commission. Afterward, he declined to back up his claim or elaborate on it.
“I really think it says something about his character and integrity that he's willing to jump on this for political advantage to continue to grind his heel into Mike,” said Kathryn Burton, who was an assistant city attorney under Aguirre. “He made spurious accusations about the office and the management of the office that he hasn't even vetted. In a funny way, he's as reckless as Mike is.”
...The inauguration came a month after the supposed end of a tough political campaign in which Goldsmith said Aguirre habitually circumvented due process and Aguirre said Goldsmith was too close to builders and business interests.
A quarter of Goldsmith's high-profile speech involved the tale of Dixon being punished for refusing “to do something that she was ordered to do because it violated her ethical obligations.”
...Another former assistant city attorney, Karen Heumann, said a belief that Dixon was rubber-stamping development projects played a role in her being removed from Planning Commission duties.
Burton and Heumann said Goldsmith never spoke to them before making his accusation, to hear their version of what happened. Both were relieved of duty during the transition.
The public accusation by Goldsmith is surprising because, again and again in his campaign, he criticized Aguirre for making unfounded allegations.
“Your work is based upon conduct and actions, not based upon a lot of accusations and hot air and making enemies,” Goldsmith said at one televised debate. “That's a huge difference between us. I have never shot first and asked questions later...
UTC expansion
Retail giant Westfield's proposal for a $900 million expansion of its University City shopping center was at the center of the Dixon dispute.
The company sought approval to add 750,000 square feet of shops and 250 to 300 condominiums, raising concerns for neighbors about traffic, noise and other environmental issues.
Two July 25 e-mails show Burton asked Dixon to rewrite her memo reviewing the project to more fully analyze the legal issues and “to protect the public interest.”
Dixon wrote, “While I am very aware the project is controversial, I have not found any legal inadequacies in the EIR (environmental impact report), nor is there anything illegal concerning the draft permits.”
Burton replied, “Irrespective of any personal opinion regarding the merits of the project or the merits of the EIR, any opposition position that could prove problematic for the decision maker should be addressed.”
Burton added, “When I spoke to you about the project, you shrugged your shoulders and said: 'Ehhhh, the council is going to do what the council is going to do. Nothing we write will change that.' Your work on this project has not been of a quality that could be approved for distribution to the council.” ...
Sunday, November 09, 2008
Does San Diego need two city attorneys? Aguirre to represent the people, and Goldsmith to represent officials?
I suggest that cities need two city attorneys--one to give honest, accurate legal advice, and the other to defend officials.
Voters want the city attorney to look out for them, and not just for elected officials. Shamefully, most elected officials want to keep the system in which the city attorney's job has been to help officials do whatever they want, and get away with it. Alternatively, the attorney tells the council what to do, and acts as a de facto city council without being elected.
Apparently San Diego needs both Mike Aguirre and Jan Goldsmith.
Voters want the city attorney to look out for them, and not just for elected officials. Shamefully, most elected officials want to keep the system in which the city attorney's job has been to help officials do whatever they want, and get away with it. Alternatively, the attorney tells the council what to do, and acts as a de facto city council without being elected.
Apparently San Diego needs both Mike Aguirre and Jan Goldsmith.
Saturday, June 14, 2008
Aguirre has recovered $10 million, more than he's spent in pension lawsuits
Mike Aguirre's campaign for reelection just got a big shot in the arm. His accusers must now admit that his aggressive pursuit of those who defrauded San Diego in the pension scam and related investigations has paid off for the city.
$4.35 million settlement in pension lawsuit
Law firm represented city before the SEC
By Craig Gustafson
San Diego Union Tribune
June 14, 2008
Vinson & Elkins, the Houston-based law firm whose two-year investigation into San Diego's finances was criticized as a whitewash, has agreed to settle with the city for $4.35 million.
The firm would be the fourth to settle lawsuits related to financial and legal troubles from the city practice of increasing employee pension benefits while cutting funding for them.
Settlements
Pension-related settlements:
July 2006: Two auditing firms, Caporicci & Larson and Calderon, Jaham & Osborn, paid $1.65 million total to the city. Calderon conducted the city's annual financial audits, which were later found to contain million of dollars in errors. Caporicci, of Costa Mesa, later bought the firm and denied any wrongdoing by itself or Calderon.
November 2006: San Francisco-based Callan Associates, a pension consultant that advised San Diego's retirement system, agreed to pay $4.5 million to the city. City Attorney Michael Aguirre accused them of faulty investment advice. The firm admitted to no wrongdoing.
City Attorney Michael Aguirre classified the settlement as a victory for his pension-related lawsuits, even though he had sought $10 million.
Vinson & Elkins, which also represented Enron, admitted no wrongdoing but agreed to pay back $3.25 million to the city and forgive $1.1 million in outstanding bills, Aguirre said. The City Council will vote Tuesday on the settlement...
$4.35 million settlement in pension lawsuit
Law firm represented city before the SEC
By Craig Gustafson
San Diego Union Tribune
June 14, 2008
Vinson & Elkins, the Houston-based law firm whose two-year investigation into San Diego's finances was criticized as a whitewash, has agreed to settle with the city for $4.35 million.
The firm would be the fourth to settle lawsuits related to financial and legal troubles from the city practice of increasing employee pension benefits while cutting funding for them.
Settlements
Pension-related settlements:
July 2006: Two auditing firms, Caporicci & Larson and Calderon, Jaham & Osborn, paid $1.65 million total to the city. Calderon conducted the city's annual financial audits, which were later found to contain million of dollars in errors. Caporicci, of Costa Mesa, later bought the firm and denied any wrongdoing by itself or Calderon.
November 2006: San Francisco-based Callan Associates, a pension consultant that advised San Diego's retirement system, agreed to pay $4.5 million to the city. City Attorney Michael Aguirre accused them of faulty investment advice. The firm admitted to no wrongdoing.
City Attorney Michael Aguirre classified the settlement as a victory for his pension-related lawsuits, even though he had sought $10 million.
Vinson & Elkins, which also represented Enron, admitted no wrongdoing but agreed to pay back $3.25 million to the city and forgive $1.1 million in outstanding bills, Aguirre said. The City Council will vote Tuesday on the settlement...
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
http://voiceofsandiego.org/opinion/slop/
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.
-- SCOTT LEWIS
Wednesday, February 20 -- 3:02 pm
Click here to post comments (3 posted so far)
The Meeting in Question
E-MAIL POST
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.
-- SCOTT LEWIS
Tuesday, February 19 -- 1:07 pm
by Scott Lewis
Having It Both Ways
http://voiceofsandiego.org/opinion/slop/
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.
-- SCOTT LEWIS
Wednesday, February 20 -- 3:02 pm
Click here to post comments (3 posted so far)
The Meeting in Question
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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.
-- SCOTT LEWIS
Tuesday, February 19 -- 1:07 pm
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