Queer Democrats Fail to Endorse for City Attorney

Incumbent Aguirre Defends Record Against Two Opponents’ Attacks

by MARK GABRISH CONLAN

Copyright © 2008 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

PHOTOS, top to bottom: Mike Aguirre, Lee Burdick, Dan Coffey

During his three years as San Diego City Attorney, Mike Aguirre has been a flashpoint for controversy. His denunciations of the city’s budget-busting pension deals for its employees as illegal; his confrontations with mayor Jerry Sanders, city council president Scott Peters and other officials; his challenges to local developers and the sweetheart deals he alleges they have made with the city; and his insistence that he’s responsible, not to the Mayor and Council, but directly to the people have aroused anger and derision from a wide range of sources, from the conservative San Diego Union-Tribune to the city employees’ unions, To his enemies, Aguirre is an obstructionist boor who’s causing the city more trouble — and costing it more money in litigation — than he’s worth. To his supporters, he’s a passionate truth-teller and one of the few San Diegans in public office who’s dealing seriously with the city’s financial troubles.

The controversies surrounding Aguirre were on full display at the January 24 meeting of the predominantly Queer San Diego Democratic Club, which heard from Aguirre and two Democrats who are running against him, Lee Burdick and Dan Coffey. For almost an hour, an unusually high turnout of club members heard Aguirre, Burdick and Coffey debate a wide range of issues, ranging from his legal strategies on the city’s pension crisis and the Sunroad development in Kearny Mesa to the very function of a city attorney. In the end, the club members voted by a substantial margin (28 in favor to 43 opposed) not to endorse in the city attorney’s race at all — or at least not to do so before March, after the filing deadline to run for the office. Many opponents of an immediate endorsement said they wanted to wait to see if other candidates, including Peters, might run — and they were also concerned that the San Diego County Republican Party has already united behind a candidate, former Assemblymember Jan Goldsmith, who might benefit from a divisive primary campaign involving Aguirre and other Democrats.

Even before entering the meeting room — the Joyce Beers Community Center on Vermont Street in Hillcrest — club members saw a picket line of about 20 representatives of city employees’ unions, carrying picket signs demanding that they not endorse Aguirre for re-election. One picketer got angry at this reporter when he took his photograph, insisting that Zenger’s needed a release from him to use his picture even though he was in plain view at a public event. The protesters eventually entered the meeting room and remained quiet while the club conducted its other business, including electing its own officers for 2008. About 30 minutes into the meeting, president Andrea Villa called the city attorney candidates to the front of the room — and the debate began.

Coffey, who gave the first opening statement, said, “I’m hoping there is a possibility to put a real Democrat in the office who will respect other people and follow the law” — a reference to allegations that Aguirre is too combative and verbally attacks other people instead of negotiating with them.

Aguirre, up next, rose to the challenge. “We have completely reorganized the city attorney’s office so it is no longer an enabler of wrongdoing,” he said — referencing his charge that his predecessor in the office, Casey Gwinn, signed off on then-Mayor Susan Golding and the City Council as they granted inflated pensions to employees which Aguirre says were illegal because the city had no way to pay for them.

Rising to accusations that he is anti-Queer, Aguirre then said, “I will be for you as I was with the Boy Scouts [when he declined to appeal a court ruling against the city for giving the Boy Scouts a $1-per-year lease on 18 acres of city parkland despite their discrimination against Queers and atheists]. I will be with you as I was defending the fire chief [‘out’ Lesbian Tracy Jarman] against the charge that participating in the Pride Parade somehow discriminated against heterosexual firefighters. I will be for you as I was when I stood up before the City Council and declared that the Constitution supports marriage equality. Whether you support me, I need to be steadfast in enforcing your rights, and aware that there is still much work to be done.”

“Tonight you’re going to hear a lot of contradictory information about Aguirre,” said Burdick. “I want you to set yourselves apart from that debate and agree that he has divided us. Aguirre has driven a wedge in this city, this party and this club. I want you to find a candidate on whom you can unite.”

The questions club members and others asked of the candidates — submitted on index cards and read by Jeri Dilno, the club’s vice-president for political action — seemed about evenly divided between pro-Aguirre and anti-Aguirre questions. Surprisingly, Aguirre’s most controversial action involving the Queer community — his involvement in closing down the 2200 Club, a Gay bathhouse in North Park, supposedly at the urging of radical-Right activist and self-proclaimed “ex-Gay” James Hartline — went unmentioned. Instead, most of the questions involved the pension issue, Aguirre’s personnel policies and the proper role of a city attorney.

The first question, clearly from an Aguirre supporter, read, “Will you have the courage to stand up to the Mayor when you know he will send the unions and the Union-Tribune after you?”

“If the city attorney were doing their job, we’d have nothing to fear from the media,” Burdick answered. “I will put a moratorium on the city attorney calling press conferences for at least the first six months of my term. We will represent San Diego through our actions, not our words.”

“The Union-Tribune is a tool of the vested interests that have just about destroyed our city,” Aguirre said. Under his tenure, he added, “For the first time the city attorney has been interposed between the citizens and the special interests. Our city attorney’s office for the first time represents all San Diego and not the people who make campaign contributions.”

“The Union-Tribune has said a lot of things about a lot of people, many of them untrue,” Coffey said, “but the real question is whether the city attorney can work with the mayor and city council for the people. I’ve been courageous enough to stand up against the mayor, the city attorney, the Union-Tribune and anybody and everybody that I think is doing the wrong thing.”

Many of the questions dealt with Aguirre’s expansive conception of his job — an issue that came up in his first campaign for the office in 2004 as well. Aguirre’s opponents argue that the city attorney’s true clients are the mayor and the city council, and the job is to facilitate what the mayor and council want to do and make sure they do it in a legal way. In his 2004 campaign, Aguirre argued that by having the city attorney independently elected instead of appointed, the authors of San Diego’s 1931 city charter intended the position to have broad powers to investigate and litigate directly on behalf of the people — and that, Aguirre says, is what he’s done in office.

Asked what role the city attorney should play in initiating policy and legislation — one of the main areas in which his opponents say he’s stepped out of bounds and usurped the powers of the mayor and council — Aguirre said, “Typically, the city attorney does not initiate policy. But violating the law is not a policy choice.” Aguirre accused the city of ‘not complying with the environmental laws, not complying with the state constitution, not complying with the conflict-of-interest laws. We’ve been sued by the Environmental Protection Agency, the Water Quality Control Board, the Department of Health Services, the Securities and Exchange Commission, and on and on and on. The [previous] city attorney became an enabler and an excuse-maker for wrongdoing at City Hall.” By contrast, Aguirre said, he is insisting that the city avoid actions that would violate state and federal law — and for that he’s been accused of using his office to “make policy.”

“Before the city attorney becomes the city attorney, they are an attorney and they have ethical obligations that are established by the Bar that grants them the privilege of representing clients in the state of California,” said Burdick. “Those ethical obligations govern the attorney-client relationship. So when the city attorney becomes the city attorney, those ethical obligations carry forward. The fact of the matter is that the proper role of the city attorney is twofold. When the city attorney is presented with an issue by their client, the first thing they must do is determine whether there is illegality about to occur, and it is their duty to inform their clients — not the press — whether that illegality exists and how to avoid it.”

“The city attorney can suggest things as policies,” said Coffey, “but the way our balanced government is set up, you have a mayor and a city council tha5t set policy, and a city attorney that carries out the responsibility of making the laws lawful. The city attorney can suggest things, but cannot set policy. I would be in the role of suggesting appropriate policies.”

A related question asked whether the city attorney’s proper role is as the “corporation counsel” to the mayor and city council. In other words, who is the city attorney’s client — the mayor and city council, or the people directly? Both as a candidate and in the office, Aguirre has been steadfast in his insistence that the city attorney’s client is the people. “The city attorney’s job is to fearlessly protect the interests of all San Diego, and not just look at the interests of the mayor and city council,” he explained to the San Diego Democratic Club. “The city attorney’s primary job is to make sure the law was complied with by everyone involved.” Aguirre added that when that doesn’t happen — when the city attorney sees his or her role as providing legal justification for whatever the mayor and city council want to do — you have “the damage, the carnage” of the pension decisions between 1996 and 2002, when “people worked together … and violated almost every law on the books.”

Not surprisingly, Burdick and Coffee both strongly disagreed and said the city attorney’s clients are the mayor and city council, not the people as a whole. “The city attorney is the principal legal advisor to the city council and the mayor,” Burdick said. “Because it’s an elected position, some of us have gone back to the election propaganda of 1931 and tried to say that the city attorney represents all San Diegans. The city attorney is elected by and responsible to the people, but represents the corporate city of San Diego.”

Coffey’s response was similar to Burdick’s. “The city is a municipal corporation, and the city attorney is the counsel for that corporation,” he said. “The corporation is run by the mayor and city council, and legal advice is provided by the city attorney and by other counsel. Aguirre has created this legend, based on an old, obsolete document, that he is the representative of all the people.”

The candidates returned to the issue of just what the job they’re seeking is later in the evening, in response to a question about why the city attorney is elected. Burdick said the job is elected for one reason and one reason only: so the public can enforce the “accountability and independence” of the city attorney by being able to remove one through voting them out of office.

“I happen to have reviewed the historical documents,” Coffee said. “In 1930, because a second-year lawyer named Mr. Quitman was the only attorney available to the Board of Freeholders [which wrote the current San Diego city charter], they made the city attorney an elected position. The person who actually wrote the charter recommended an appointed city attorney.”

Aguirre claimed that when the San Diego city charter was voted on in 1929, it contained a provision for an appointed city attorney — “and it was overwhelmingly defeated at the polls.” After that, he said, the Board of Freeholders resubmitted the charter to voters in 1931, substantially the same but with the city attorney elected instead of appointed — and it passed.

Among the other issues raised were whether, and under what circumstances, the city should hire outside attorneys — which Aguirre has frequently claimed various agencies have done to get more congenial legal opinions than the ones he was going to give — and what to do about the city’s pension crisis. “Even though it’s a violation of city charter section 40 to hire an outside attorney,” Aguirre said, “I work with the outside attorneys because I don’t want to jeopardize the city or risk liability. It really hurts to see people violate charter section 40 bcause the people, not the mayor or city council, decide who the city attorney should be.”

“I suspect this question will come up very little under my administration,” said Coffey, “because I plan to have well-qualified people working in my office, and it won’t be necessary to hire outside counsel. There was a time we spent $5 million on outside counsel, and in the last three years we’ve spent $90 million because of all the conflicts of interest and chasing down rabbit holes” from Aguirre’s office.

“I’ve been practicing government law for 20 years,” Burdick said. “I’ve also been a private-sector litigator for 17 of those years. Many times I’ve had clients say, ‘I need to bring in other attorneys. City charter section 40 does not prohibit the city from hiring outside counsel. It says the city attorney is the primary advisor to the mayor and city council, not the only one.”

“If the city council can hire an attorney at will, what’s the point in electing a city attorney?” Aguirre replied. “The public asserted its right to elect the city attorney after the first proposal to have an appointed city attorney was shot down in 1929.”

On the pension crisis, Coffey said that Aguirre’s attempts to go to court to break the city’s pension contracts with its public employees’ unions were illegal and wasted the city’s money. He said Aguirre’s lawsuit “is a cross-complaint on a case already brought by [private attorney] Michael Conger and already settled. That case cannot be refiled and it cannot be won. Aguirre filed against the wrong parties and outside the statute of limitations.” He added that even if Aguirre had been able to win the suit, it would have reduced the city’s pension liability by only 2.5 percent. “It was a political case to raise Aguirre’s profile and get him on TV,” Coffey added. “If we’re going to solve the pension crisis, it will be through discussions, not litigation.”

“Hindsight is 20/20,” Burdick said. “The agreements were not illegal, and therefore the city is contractually required to pay those benefits, unless and until they’re renegotiated.”

“An illegal contract is not an enforceable contract,” Aguirre replied. “Every legal group that has looked at these contracts has found that these benefits were granted illegally.” He added that not only did the city act illegally in 1996 when they raised pension benefits without the money to pay them, but “in 2002 they did the same thing. They increased benefits and decreased contributions. The current cost is $6.4 billion, and they’re going to solve it by taking away defined benefits for future employees.” Aguirre essentially accused the city government and the employee unions of working together to deny new city workers pension guarantees, and instead stick them with 401(K)-style “defined contribution” plans. “I favor unions,” he said, “but I am not in favor of labor leaders ripping off their members.”

The candidates were also asked whether the city attorney has the power to demand documents from the media — a reference to Aguirre’s abortive attempt to investigate KPBS for dropping the Full Focus public-affairs program from their TV schedule. “In Russia, that’s a good policy,” Coffey said. “In the U.S. we have something called the First Amendment.” Investigating the media, Coffey said, is “not a democratic principle. It’s a totalitarian principle, anti-democratic and anti-American.”

Aguirre essentially argued that because KPBS is publicly owned — “SDSU and the California State University trustees hold the license” — it’s a legitimate subject for investigation to see if it’s misusing taxpayer money. “Sending them a request for public documents is appropriate, and questioning the role of the Union-Tribune in KPBS’s editorial decisions is appropriate,” he explained. He argued that there is a conflict of interest in that Union-Tribune owner David Copley chaired KPBS’s building fund — and the cancellation of Full Focus meant that the only remaining KPBS program on local politics is headed by the Union-Tribune’s editorial page editor. “That is not right,” Aguirre said.

“Aguirre issued two public requests to that station,” Burdick said. “They complied with the first request, and after making the second request, Aguirre consulted with a First Amendment attorney, admitted his mistake and withdrew the second one.”

Even the candidates’ closing statements revealed vast differences between their organizational and personal styles — and gave them opportunities to attack each other. “Each election allows us to focus on the issues of importance,” Burdick said. “We are wasting that opportunity by talking about the issues that divide us. We cannot allow a single issue to divide us or distract us from advancing the politics of opportunity, including marriage rights. We need a candidate who has no vendettas to settle and who brings a clean slate. I am that candidate, and I would ask for your endorsement tonight.”

“You now control the city attorney’s office,” Aguirre said. “Neither of my opponents raised the issue of marriage equality before the city council. They were missing in action. I brought down the San Francisco city attorney and worked with city councilmember Toni Atkins to get the council to sign on to the amicus brief in support of marriage equality. Do you think either of these individuals would have put their reputation on the line for that? Would Casey Gwinn have? The last time I saw Dan Coffey involved in a campaign, it was Dick Murphy’s for mayor. John Kern [Burdick’s campaign consultant] is Murphy’s right-hand man. The city attorney’s office is working for the people of San Diego. The mayor and the Union-Tribune are attacking me, but that’s not what you hear in the communities.”

Coffey took Aguirre’s comments about marriage equality as a personal insult. “I invite you to watch the videotape on the amicus brief hearing, and you will see me there,” he said. “Aguirre just lied to you, as he does whenever it’s convenient for him. I believe in honest and decent government, and to get honest and decent government you need honest and decent people. I am not a Democrat in name only. I practice it and I believe it, and that’s what I’ll bring to the city attorney’s office — not a lot of lies and intimidation. I ask for your endorsement because I will bring honesty, integrity, fairness and a decent place to work to the city attorney’s office for the first time in four years.”

After the forum, Aguirre conceded privately to Coffey that he had been at the hearing, but insisted his comments were still accurate because Coffey had not spoken to the city council in support of marriage equality.