Judge Says Aguirre cannot Replace SDCERS Legal Counsel

February 15, 2006 (PLANSPONSOR.com) - A San Diego Superior Court judge said in a tentative ruling that city attorney Michael Aguirre can not replace the legal counsel for the San Diego City Employees' Retirement System (SDCERS).

The San Diego Union-Tribune reports that Judge Jeffrey Barton said state law gives SDCERS “sole and exclusive fiduciary responsibility” over the pension fund and that its board “has the power to use its assets to retain counsel of its own choosing” while administering the nearly $4 billion fund.

Aguirre has maintained for more than a year that his office is the rightful legal adviser to the system (See  CA Judge Refuses San Diego Pension Board Restraining Order Request ). Mayor Jerry Sanders last month sided with Aguirre in the battle, according to the Union-Tribune.   Aguirre said he will appeal if Barton finalizes his ruling, although City Council President Scott Peters said it is unlikely that the council would support such a maneuver.

Aguirre argues that his election in November 2004 signaled that voters want him to represent not just the city’s interests but also those of the pension system, and in the tentative ruling Aguirre said the court is “substituting its judgment for the judgment of the voters.”

Pension system officials filed suit a year ago to block Aguirre’s attempt to reinstate the City Attorney’s Office as the fund’s legal adviser.   The City Attorney’s Office advised the fund until 1997, when the pension system began hiring its own general counsel.

In his decision, Barton interpreted a portion of the city charter that Aguirre has repeatedly cited to establish the powers of his office.    Barton said the passage, Charter Section 40, “expressly states” that the city attorney only advises city departments and offices, and he added, “The city has cited no authority that the (pension) board is merely a department or office of the city.”

Aguirre called that argument flawed, saying the charter doesn’t have to specifically mention a panel for the city attorney to represent it.    He named other city boards and commissions as examples of groups his office counsels.

Barton also mentioned the numerous pension-related legal cases in his ruling and said that if the City Attorney’s Office advised the system as well, it “would invite a potential, if not actual, conflict of interest.”    Several pension board members have also mentioned that possible conflict as reason to stop Aguirre from becoming the system’s attorney.    Roxanne Parks, the system’s interim general counsel said, “Given all the talk of the city’s financial condition, it’s kind of a hard situation to have the same attorney represent both the debtor and the creditor.”