San Diego City Attorney Michael Aguirre received permission from the City Council to pursue a legal battle to overturn certain pension benefits, but only in his own name, a transcript shows.
The transcript, released to the public yesterday, documents the council's closed-door discussions on Aug. 2, 2005, as council
members debated whether to give Aguirre's office permission to proceed with a lawsuit seeking to invalidate certain benefits for city employees.
The State Bar of California is reviewing the transcript as part of its investigation of Aguirre's conduct in office. One issue is whether Aguirre exceeded his authority in the pension case.
At the end of the private meeting, the council voted 5-1 – with Jim Madaffer dissenting – to pass a motion authorizing Aguirre to litigate the case in his own name and not in the name of the City Council. (Two of the eight council seats were vacant at the time.)
In court documents filed in 2006, Aguirre's office listed the “City of San Diego” as his client in the case. Aguirre did so, opposing lawyers contend, to keep the judge from throwing the case out of court. Aguirre's office has said he was simply following the judge's orders.
Superior Court Judge William Barton had ruled that “the city is the real party in interest. Every case must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.”
The judge dismissed the case last year. Aguirre's office is appealing.
During the 2005 meeting, some council members said they wanted a ruling in the case, but did not want their names attached, because they didn't want it to look like they were questioning the legality of benefits they had negotiated, the transcript says.
City Council President Scott Peters is quoted as saying: “I'm concerned about the risk of us being accused of bad faith bargaining if the City Council adopts the position that the benefits are (sic) that we just negotiated are illegal. And I think we should plead that it's the City Attorney that takes that position, not the City Council.”
Aguirre wasn't at the meeting, but attendee Don McGrath, his second-in-command, mentions Peters' concerns and says: “I think Scott is legally correct. That doesn't look good, and it probably isn't good.”
McGrath later asks for a “resolution from the Council which authorizes the City Attorney” to proceed. Peters responds, “Okay.”
In an interview yesterday, Peters, who is running to unseat Aguirre in the June 3 election, said Aguirre “definitely went beyond what we authorized. If you read (the transcript), it's pretty clear.”
Aguirre did not return phone calls seeking comment yesterday, but a spokeswoman referred a reporter to statements made by McGrath during a news conference last week.
At that news conference, McGrath said Aguirre's office “did exactly what we were told by the court” in adding the city's name to the case.
McGrath and Aguirre have also argued that the City Attorney's Office has broad authority under the city charter to file lawsuits without council approval. McGrath repeated that point last week.
The state bar, which licenses and disciplines lawyers, doesn't comment publicly on its investigations unless it files charges. The bar has been investigating Aguirre for several months, interviewing witnesses and seeking documents related to his conduct since taking office in December 2004.
The 2005 transcript was sealed because the discussion between Aguirre's office and the council was protected by attorney-client privilege. Last week, at the request of a bar investigator, the council voted 8-0 to waive that privilege and share the transcript with the investigator.
Aguirre's office released the transcript to the public yesterday after a public-records request was made by the Web site voiceofsandiego.org. The City Council approved the release on Tuesday, his office said.
Alex Roth: (619) 542-4558; alex.roth@uniontrib.com
