The Aguirre Report - Web Log (Blog) 2007 | Office of the City Attorney

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The Aguirre Report - Web Log (Blog) - 2007

BLOG 08.22.07

by Michael Aguirre, San Diego City Attorney
Union Lobbying with City Resources

From the moment I took office in December 2004, I have made it a priority to ensure that the retirement benefits of the hard working employees of this City, be based and protected on solid legal and fiduciary principles. Though it has been unpopular to point out the obvious, an unfunded retirement benefit created in violation of the law breaches sound and legal business practices.

But that's what happened in 1996 and 2002. A massive pension debt was immediately created as a result of the San Diego City Employees' Retirement System Board allowing the City of San Diego, by way of City Council action, to pay less than what was required to fully fund its pension obligations in exchange for granting retroactive pension benefit increases to employees.

These illegal actions have left the City's employee pension fund more than $1 billion in the hole.

I've been attempting to right this wrong in court. But my job is made ever more difficult when the leadership of the Municipal Employees' Association (MEA) and "certain" Council members collude to thwart the efforts of the City Attorney's Office to restore the health of the employee pension system.

Specifically, I refer to the August 9th e-mail City of San Diego, Labor Relations Director, Scott Chadwick wrote to MEA officials Nancy Roberts and Judie Italiano, admonishing them to desist in using City resources to launch a political and media campaign against the City Attorney's efforts:

From: Scott Chadwick
Sent: Thu 8/9/2007 8:07 AM
To: Judie Italiano; Nancy Roberts
Cc: Jay Goldstone; Jessica Michelli; Judy von Kalinowski; Lisa Briggs;
Pamela Holmberg; Rick Reynolds; Thom Harpole; Tanya Tomlinson
Subject: Fwd: Urgent Message From MEA

Morning Nancy.

Please see below. This is entirely inappropriate and in violation of Council Policy 300-06. The City had put MEA on notice related to inappropriate use of the City's email system. If this occurs again, the City will be forced to take necessary steps to ensure this does not happen again.

Regards,

Scott C. Chadwick
Labor Relations Director
City of San Diego

The offending e-mail that triggered Scott Chadwick's response was authored by MEA General Manager Judie Italiano, which not only showcases violation of Council Policy 300-06, but also depicts the cozy relationship that exists between the very parties responsible for the under-funding debacle. The following is Judie's e-mail:

Judie says:
To Everyone Involved in the Pension Fight
Congratulations to everyone on the tremendous victory we had with Judge Barton's ruling on Friday!
While this victory is sweet there is something important still to do that can help stop the mad man who keeps filing these costly lawsuits.

Our friends on Council have mentioned that it could really help them in reining in the mad man if the newspaper starts getting hundreds of letters calling on the Mayor and the council to put an end to this horrible waste of tax dollars by not allowing the City Attorney to file any more lawsuits aimed at our pension benefits. Mention that the Mayor and Council and the employees have made great strides in addressing this issue and that the City's own actuary (hired by Aguirre) says the CERS system is sound and that there is no risk of the system or the City not being able to meet its pension obligations. Highlight that this was accomplished in spite of Mike Aguirre's expensive litigation and constant inference. That it happened because City Employees paid more and the City Council insisted on making its full payments to the retirement system in spite of budget shortfalls. Suggest that the Mayor should instruct Aguirre to stop wasting tax payer dollars on litigation the City cannot win - and instead should work with the council. The Mayor and employees need to continue to address the problem in a cooperative way. I know for many of you this task will turn your stomach - but the council members who I spoke with feel we have an opportunity to get a different dialogue started in the press - to move away from pointing the finger at the greedy employees and their unions - to ask citizens to write in suggesting that the mayor get Mike Aguirre off the expensive litigation track and on the road to real solutions to the City's many problems.

Many of you have been great about writing letters and pointing out what a horrible attorney Mike Aguirre is - and now I am asking you to take a different approach and see what we can accomplish- get some of the people you know who have not written in before to write letters to the editor and to the Mayor and Council along with you - - it can't hurt!

This is the first constructive conversation with council on this issue that we have had in a long time - and I think it will go along way towards building back our relationship with our City decision makers.

Thanks, in advance, for your help on this project - together we can win this battle!

Please write that letter today - before Aguirre talks the Mayor into letting him file a new lawsuit.

In Unity,
Judie Italiano

BLOG 07.27.07

by Michael Aguirre, San Diego City Attorney
The Case for an Elected City Auditor/Comptroller

The City of San Diego's perilous financial crisis has spawned a number of casualties over the past three years. A mayor resigned, the city manager resigned, and the city auditor/comptroller resigned. Several other city officials are under federal indictment and also charged with violations under state law. The City may have been able to avoid these troubles had it had an independently elected city auditor/comptroller.

Before the introduction of the Strong Mayor form of local government, San Diego City Charter Section 39 dictated that the City Council select the City's auditor/comptroller. Currently, the auditor/comptroller is a mayoral appointee confirmed by the City Council, which places the auditor/comptroller in a weaker position.

In California, the cities of Los Angeles, Long Beach, Oakland and Berkeley have elected auditors. Nationally, the cities of New York, Chicago, Houston, and Philadelphia have elected auditors.

The primary responsibility of any auditor/comptroller is to ensure the financial integrity, accountability, and cost-effectiveness of the governmental entity that it oversees. The auditor does this by monitoring financial activities and by performing professional reviews of financial statements and documents to ensure their financial accuracy and legal compliance, and their adherence to stringent accounting standards.

A public official is truly accountable to the public only when that official is elected by the public. When appointed, a conflict naturally arises between promoting the public interest and maintaining the approval of the appointing authority.

Credit rating agencies were rightly stunned when the City failed to produce audited financial statements for five years between 2002 and 2006 and they hit the City where it hurt most–precluding the ability for the eighth largest city to raise funds through the issuance of municipal bonds. This has increased the cost to borrow money and crippled the City's ability to carry out vital public infrastructure improvement projects.

An elected city auditor could not have gotten away with such a failure. The electorate would not have been amused and such an incumbent would have been kicked out of office.

The City of San Diego has experience in this arena of public reform. In 1929, voters in San Diego defeated a city charter proposal to create a strong city manager form of government, a proposal which included an appointed City Attorney.

Voters elected a second charter commission with 15 members on August 26, 1930 and it set out to revise the city charter proposal that had just gone down to defeat. The major element the new charter commission modified was requiring the city attorney to be elected rather that appointed.

Attorney James G. Pfanstiel was a member of the 1929 Board of Freeholders that put forward the strong manager and appointed city attorney form of government that was defeated by the voters in 1929. Mr. Pfanstiel was asked by new Freeholder Board Chairman Martin to enumerate the "various objections and criticisms" to the 1929 proposed city charter.

In a September 12, 1930 letter Pfanstiel described to Martin the public sentiment favoring an elected city attorney:

Some advocated with considerable degree of force that the city attorney should be elected by the people. The argument is that the city attorney is the attorney for the entire city and each and every elective and appointive officer thereof upon all questions pertaining to the municipality, and he should occupy an independent position so that his opinions may be uninfluenced by an appointive power.

Ray Mathewson, the labor union representative on the Freeholder Board, described the role of the independent city attorney in a proposal he submitted to the Freeholder Board:

The duty of the city attorney is to give legal advice to every department and official of the city government on municipal matters. He also must act as the representative of the various departments before the courts. He should occupy an independent position so that his opinions would not be influenced by any appointive power. For this reason he should be elected by the people. If elected, the city attorney is in a position of complete independance (sic) and may exercise such check upon the actions of the legislative and executive branches of the local government as the law and his conscience dictates.

On November 11, 1930 the Freeholder Board took up the issue of whether to have an elected or appointed city attorney as part of the city charter proposal. With one member out of town, motions to elect or appoint the city attorney failed on 7-7 tie votes. The Board then turned to the legal community for help and issued a public invitation asking the San Diego Bar to attend the Board's next meeting the following evening November 12.

The thinking of the Freeholders who favored a city attorney elected by the people was discussed in a November 12, 1930 news article:

Those of the freeholders who favor election by the people feel that the city attorney should be a check on the council and the city manager, and that only his election by the people will give him the necessary independence of action.

That evening the Board of Freeholders adopted a motion "that the city attorney be elected by the people," rejecting the idea that the City Attorney was "only the council's lawyer." The minutes of the meeting recorded the fact that several attorneys from the City attended and supported the idea of an elected city attorney.

Numerous attempts were made to get the Freeholder Board to reconsider their decision but none were successful. The proposed charter, with the provision that the City Attorney would be elected by the people, was adopted unanimously by the Board of Freeholders on January 9, 1931.

On April 7, 1931 San Diego voters adopted the new charter, with the provision that the city attorney was to be elected by the people of San Diego, with a vote of 79.76% in favor and 20.24% against.

A similar charter amendment needs to be approved with regard to the position of the San Diego City Auditor/Comptroller. Uncoupling the auditor/controller position from the appointing authority will ensure it is truly independent and accountable to the people.

BLOG 06.01.07

by Michael Aguirre, San Diego City Attorney
All The News That's Fit To Print-NOT!

Recent actions by the San Diego Union-Tribune management again put into question the commitment of that publication's leadership to the code of ethics of the Society of Professional Journalists. The ethical code is based upon the philosophy that "public enlightenment is the forerunner of justice and the foundation of democracy." Under the code journalists fulfill their duty to enlighten their readers about important events and issues by "seeking truth and providing a fair and comprehensive account of events and issues."

Too often the management of the Union-Tribune attempts to manipulate public opinion against their perceived political adversaries and in favor of their political friends. A common practice by Union-Tribune management is the intentional publication of editorials before news stories on controversial events.

This practice violates the ethical code requirement that journalists provide fair and comprehensive accounts of events and issues. It also places an extreme and unfair burden on the writer of the follow-up news article because the advance editorial pressures the writer to conform the news story to management's satisfaction.

Editorials are supposed to be statements of opinion based upon stated facts. However at the Union-Tribune editorials, particularly those written by senior editor Bob Kittle, are regularly not based on facts but on false statements. Thus, when the paper first publishes a one-sided editorial based upon false information the news story published the next day reinforces the false information and one-sided presentation contained in the editorial.

The Union-Tribune management has engaged in this "editorial first / news story second" practice in connection with the failure by the police chief to serve the search warrant in the Tom Story case, and in the squirrel poisoning incident in Balboa Park. In both cases, the paper first published a false and misleading editorial and then followed with a misleading news story.

In doing so management at the Union-Tribune violated the cardinal ethical rule requiring journalists to seek truth and provide fair and comprehensive accounts of events and issues. In both of these cases the paper attempted to manipulate rather than enlighten their readers.

Below follows the editorials and later news stories in the Tom Story and Squirrel poisoning episodes:

24 MARCH 2007 TOM STORY EDITORIAL PUBLISHED FIRST

Smear tactics | Aguirre probe exposes prosecutorial abuse

City Attorney Mike Aguirre is engaged in a reckless campaign to criminalize his civil dispute with Sunroad Enterprises over an office tower the developer is building near Montgomery Field. Fortunately, Aguirre's abuse of prosecutorial authority has hit an urgently needed roadblock in the form of Police Chief William Lansdowne.

To his credit, Lansdowne refuses to execute a baseless search warrant obtained by Aguirre for the office of Sunroad Vice President Tom Story. After reading the affidavit filed by Aguirre in requesting the warrant from Superior Court Judge Woody Clarke, Lansdowne concluded there was no evidence of any crime. State law requires that, when executing a search warrant, a law enforcement officer must act in the good-faith belief that an illegal act has been committed.

Lansdowne's determination that Aguirre concocted the affidavit without substantiation is a stinging indictment of the city attorney himself. Because state law stipulates that search warrants may be served by law enforcement agencies only, Aguirre now has no ability to further his groundless search of Story's office, which appears designed to bully and coerce Sunroad.

The warrant obtained by Aguirre to search Story's office has been sealed, thus leaving the public in the dark. What's more, Aguirre's spokesman declared yesterday that the city attorney would not comment on it, period.

Aguirre's high-profile assault on Sunroad has generated ample headlines. There is no doubt here that Sunroad erred grievously in putting up a 12-story building close to the airport even after the Federal Aviation Administration ruled it to be a safety hazard. Yet even though civil infractions of state or federal regulations indeed may have occurred, we have seen absolutely no evidence of criminal wrongdoing.

The lack of evidence, however, did not stop Aguirre from calling a press conference two months ago and urging the U.S. attorney to prosecute not only Sunroad executives but also city officials who differed with Aguirre on the project. To date there is no indication the U.S. attorney did anything other than ignore Aguirre's carefully staged call for his opponents in a policy disagreement to be prosecuted.

Aguirre's probe of Sunroad bears all the markings of a smear campaign, pure and simple.

In fact, Sunroad officials are among an ever-growing group of Aguirre's opponents branded by him as criminals, from members of the City Council to the developers of Liberty Station. In every case, Aguirre's charges have fizzled. All the same, his tactic of trying to criminalize policy differences has no doubt helped to intimidate those who disagreed with him and unfairly sullied their names.

San Diegans should pay close attention to the outcome of the Sunroad "investigation" and decide for themselves in the end whether the real abuse was perpetrated by Tom Story or Mike Aguirre.

25 MARCH 2007 TOM STORY NEWS STORY PUBLISHED SECOND

Top cop rejected search of offices
Tower's height has caused legal battle

By Alex Roth
STAFF WRITER

During his two years in office, San Diego City Attorney Michael Aguirre has butted heads with any number of other city officials, including two mayors, several council members and the district attorney.

Now add another name to the list: the police chief.

Last week, Aguirre obtained a warrant to search the offices of Sunroad Enterprises, the company building an office tower that the Federal Aviation Administration has declared a hazard to planes landing at Montgomery Field.

But in an interview yesterday, San Diego Police Chief William Lansdowne confirmed that he refused to let his officers conduct the search, despite Aguirre's request. The chief said he had no faith in Aguirre's assertion that the search might uncover evidence of a crime.

The chief said he reviewed the facts of the case and couldn't see how such a search could be justified.

"I didn't understand what the crime was," Lansdowne said, adding that he found Aguirre's rationale for the search to be "legally insufficient."

"I got input from some of the highest legal authorities in the county," the chief said, declining to be more specific.

Without the cooperation of the Police Department, Aguirre's office was unable to execute the warrant even though San Diego Superior Court Judge George "Woody" Clarke approved the warrant on Wednesday.

Only a law enforcement agency can execute a search warrant. It was unclear yesterday whether Lansdowne could be found in contempt of court or face other penalties as a result of his refusal.

Lansdowne declined to say what possible evidence Aguirre's office was looking for, saying such information was confidential. Aguirre, who has declined to specify what crimes he thinks might have been committed, said through his spokeswoman yesterday that he had no comment.

Despite Lansdowne's decision, Aguirre apparently got the documents he was looking for. On Friday, Tom Story, Sunroad's vice president of development, agreed to turn them over voluntarily, a company spokeswoman said.

Aguirre's office obtained the warrant in the midst of a legal battle with Sunroad over a 12-story building under construction less than a mile northwest of Montgomery Field.

Last year, the FAA declared the office tower a hazard to planes landing in bad weather at the Kearny Mesa airport, saying it exceeds the 160-foot safe height limit by 20 feet.

After news reports surfaced that the building's height exceeded FAA regulations, Aguirre launched an investigation. He filed a lawsuit demanding that Sunroad tear down the top two floors. He also called for a federal criminal investigation of the developer and city building officials, citing what he called "a willful disregard for federal and state laws and for the safety of people." The U.S. Attorney's Office has declined to comment.

Lansdowne's admission that he refused to execute the warrant is only the latest in a series of clashes between Aguirre and local public officials.

During yesterday's interview, Lansdowne declined to say whether he consulted District Attorney Bonnie Dumanis before making his decision. Dumanis and Aguirre had a falling out in 2005 when Dumanis tried to assume responsibility for the city's misdemeanor criminal prosecutions. Those prosecutions are handled by Aguirre's office.

Dumanis didn't return a phone call seeking comment yesterday.

Lansdowne said he tried to meet with Aguirre to explain his decision. He said Aguirre at first agreed to the meeting but subsequently canceled. The two haven't spoken since.

Fred Sainz, a spokesman for Mayor Jerry Sanders, said Lansdowne made the decision without consulting the mayor. Sainz said the mayor supported Lansdowne.

"He trusts Bill Lansdowne to make the right decision in these kinds of issues," Sainz said.

31 MAY 2007 SQUIRREL POISIONING EDITORIAL PUBLISHED FIRST

Gophergate; Aguirre stages "Caddyshack" revue

In the wake of his forced removal from the Sunroad criminal case, City Attorney Mike Aguirre has quickly found a new attention-getting cause - rodents in San Diego's parks.

Your ever-watchful city attorney is on top of the crisis with yet another special investigation, this time into the city's rodent-control practices. True to form, Aguirre the attack dog has unleashed his staff - not against the rodents, but rather against the Park and Recreation Department officials who counter infestations of rats and ground squirrels at Balboa Park, Mission Bay Park and other popular recreation spots.

Kimberly Urie, head of the public integrity unit, has fired off a letter to the Park and Recreation Department demanding that it turn over a raft of pest control documents. Meanwhile, the City Attorney's Office has warned Park and Rec officials to "immediately stop all rodent control on park land."

National Lampoon could not have devised a more hilarious parody, but this real-life spoof is being conducted with your scarce tax dollars. Now, at least, it is clear why Aguirre is demanding that the City Council fund an additional 17 lawyers for his office - to mount a full-scale gopher probe. "Caddyshack" returns to San Diego, with Mike Aguirre as stand-in for Bill Murray.

The truth is, park rodents can transmit infectious diseases. A decade ago, squirrels in San Diego's parks were found to carry the plague, which is no laughing matter. Fortunately, the Park and Rec Department has ignored Aguirre's farcical "cease and desist" order. As Rick Reynolds, the city's assistant chief operating officer, wryly pointed out in a memo to the City Council, halting all rodent control measures would mean that "within a matter of weeks, Mission Bay would be overrun with rats."

1 JUNE 2007 SQUIRREL POISONING NEWS STORY PUBLISHED SECOND

Aguirre questions legality of squirrel-killing method

By Jeanette Steele
STAFF WRITER

SAN DIEGO - The city's approach to a squirrel infestation in Balboa Park has led to a wave of furry carcasses in the park, catching the attention of passers-by and animal activists - and City Attorney Michael Aguirre.

Aguirre said his office asked the city to "pause" the pest-control method known as baiting to see if it is legal.

Baiting, which city administrators say is a widely accepted practice, involves inserting a chemical in squirrel burrows. Most die underground, but about one in 10 resurfaces before dying.

A Park and Recreation Department contractor started using the chemical - zinc phosphide - last week to address a squirrel population that has swelled in recent months.

The squirrels had become aggressive, city officials said, and a parent reported that a child was bitten. Also, the fleas that squirrels carry are known to harbor the plague, and burrows dug by the rodents can cause people to trip, they said.

The result: Last week about two dozen dead squirrels were seen around the lawn-bowling fields on the park's west side.

The issue became public after a dog walker noticed the bodies and notified an animal rights group, which alerted some San Diego television stations.

"When I was there it was absolutely horrifying," said Kath Rogers, spokeswoman for the Animal Protection and Rescue League, a San Diego-based nonprofit group. "Some squirrels were shaking and some were limp. It seemed very cruel."

In response to complaints, the park department has temporarily stopped baiting in Balboa Park.

Rogers' group met with city officials this week to suggest alternative pest control methods, which will be evaluated, said Fred Sainz, spokesman for Mayor Jerry Sanders.

But it was not certain the city will abandon the baiting method, which has been used for 20 years around the state, Sainz said.

The bait is not considered a danger to other animals and people, city officials said, because the chemical is placed underground.

The issue has become a political football between Aguirre and the mayor's office.

Yesterday, Aguirre said he believes the city intended to kill all or most Balboa Park squirrels, and it made the decision without public input.

Sainz called Aguirre's claim false and said the history of controlling the squirrel population goes back 30 years.

Meanwhile, one of Sanders' deputies sent a memo Tuesday to the City Council saying that Aguirre tried to halt all rodent control on parkland.

"Within a matter of weeks, Mission Bay would be overrun with rats," said the memo from Rick Reynolds, the city's assistant chief operating officer.

While a deputy city attorney sent an e-mail calling for the wider moratorium, Aguirre said he told the park director the request applied to squirrels only.

BLOG 05.29.07

by Michael Aguirre, San Diego City Attorney
Does the management of the San Diego Union-Tribune newspaper abide by the Ethical Code of the Society of Professional Journalists?

Society of Professional Journalists Code of Ethics

Preamble

Members of the Society of Professional Journalists believe that public enlightenment is the forerunner of justice and the foundation of democracy. The duty of the journalist is to further those ends by seeking truth and providing a fair and comprehensive account of events and issues. Conscientious journalists from all media and specialties strive to serve the public with thoroughness and honesty. Professional integrity is the cornerstone of a journalist's credibility. Members of the Society share a dedication to ethical behavior and adopt this code to declare the Society's principles and standards of practice.

Seek Truth and Report It

Journalists should be honest, fair and courageous in gathering, reporting and interpreting information.

Journalists should:

Test the accuracy of information from all sources and exercise care to avoid inadvertent error. Deliberate distortion is never permissible.
Diligently seek out subjects of news stories to give them the opportunity to respond to allegations of wrongdoing.
Identify sources whenever feasible. The public is entitled to as much information as possible on sources' reliability.
Always question sources' motives before promising anonymity. Clarify conditions attached to any promise made in exchange for information. Keep promises.
Make certain that headlines, news teases and promotional material, photos, video, audio, graphics, sound bites and quotations do not misrepresent. They should not oversimplify or highlight incidents out of context.
Never distort the content of news photos or video. Image enhancement for technical clarity is always permissible. Label montages and photo illustrations.
Avoid misleading re-enactments or staged news events. If re-enactment is necessary to tell a story, label it.
Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story.
Never plagiarize.
Tell the story of the diversity and magnitude of the human experience boldly, even when it isn't popular to do so.
Examine their own cultural values and avoid imposing those values on others.
Avoid stereotyping by race, gender, age, religion, ethnicity, geography, sexual orientation, disability, physical appearance or social status.
Support the open exchange of views, even views they find repugnant.
Give voice to the voiceless; official and unofficial sources of information can be equally valid.
Distinguish between advocacy and news reporting. Analysis and commentary should be labeled and not misrepresent fact or context.
Distinguish news from advertising and shun hybrids that blur the lines between the two.
Recognize a special obligation to ensure that the public's business is conducted in the open and that government records are open to inspection.

Minimize Harm

Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect.

Journalists should:

Show compassion for those who may be affected adversely by news coverage. Use special sensitivity when dealing with children and inexperienced sources or subjects.
Be sensitive when seeking or using interviews or photographs of those affected by tragedy or grief.
Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.
Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone's privacy.
Show good taste. Avoid pandering to lurid curiosity.
Be cautious about identifying juvenile suspects or victims of sex crimes.
Be judicious about naming criminal suspects before the formal filing of charges.
Balance a criminal suspect's fair trial rights with the public's right to be informed.

Act Independently

Journalists should be free of obligation to any interest other than the public's right to know.

Journalists should:

Avoid conflicts of interest, real or perceived.
Remain free of associations and activities that may compromise integrity or damage credibility.
Refuse gifts, favors, fees, free travel and special treatment, and shun secondary employment, political involvement, public office and service in community organizations if they compromise journalistic integrity.
Disclose unavoidable conflicts.
Be vigilant and courageous about holding those with power accountable.
Deny favored treatment to advertisers and special interests and resist their pressure to influence news coverage.
Be wary of sources offering information for favors or money; avoid bidding for news.

Be Accountable

Journalists are accountable to their readers, listeners, viewers and each other.

Journalists should:

Clarify and explain news coverage and invite dialogue with the public over journalistic conduct.
Encourage the public to voice grievances against the news media.
Admit mistakes and correct them promptly.
Expose unethical practices of journalists and the news media.
Abide by the same high standards to which they hold others.

BLOG 05.29.07

by Michael Aguirre, San Diego City Attorney
Response to San Diego Union-Tribune Editorial

City Attorney Aguirre submitted the following letter to the San Diego Union-Tribune following that publication's May 25, 2007 editorial regarding the pension litigation:

Regarding "Another defeat; Supreme Court tosses out Aguirre's pension suit" (Opinion, May 25):

The U-T editorial provides an opportunity to inform the public about the status of the City's court action to protect taxpayers from having to pay hundreds of millions of dollars in illegal pension benefits created in 1996 and 2002 by City officials.

The trial court determined that even if the acts of these officials were unlawful, taxpayers still must pay for the pension benefits because of later settlement agreements authorized by many of the same wrongdoers. In other words, the wrongdoers were allowed to waive their own wrongdoing. The City Attorney believes this decision is not what the law calls for under the facts.

Moreover, the U-T conveniently confuses a writ with an appeal, erroneously concluding the pension case has come to "the end of the line." This is not true. Because some of the case is still pending in the trial court, the City was not able to "appeal" the trial court's ruling but instead used a "writ" to ask the appellate court for permission to challenge rulings made following Phase I of the trial. The City still retains its right to appeal following the conclusion of the trial in the Superior Court.

The City Attorney's legal efforts to save taxpayers more than $800 million in the pension case should not be characterized as a "legally dubious crusade." The City Attorney's Office has won other significant victories for taxpayers, including overturning the $150 million decision against the City in the Roque de la Fuente case. That case was on appeal for several years before the City eventually won.

The City Attorney's Office has also recovered more than $6 million in cases filed against professional firms that neglected to properly advise the City about its perilous pension arrangements.

San Diegans have a right to a city attorney who will vigorously pursue justice on their behalf. That is my crusade and that will define my tenure in office.

Mike Aguirre
San Diego City Attorney

BLOG 04.13.07

by Michael Aguirre, San Diego City Attorney
Don't Muzzle the Public's Right to Know

This Monday, April 16, the City Council is set to hear a presentation from the San Diego City Employees' Retirement System (SDCERS) on the latest state of the city's employee pension fund. It is Item 202 at the Council meeting which begins at 2:00 p.m.

Council members will get to ask any questions they desire of the SDCERS actuary, Gene Kalwarski of Cheiron, Inc. But apparently the retirement officials aren't too keen on answering the tough questions that may come from City Attorney Mike Aguirre.

So on April 11, City Council President Scott Peters sent a letter to SDCERS' Retirement Administrator David B. Wescoe, agreeing to SDCERS' request that the City Attorney be denied the opportunity to ask questions of the SDCERS actuary. [See Council President's Letter to David Wescoe]

What is wrong with this picture? What are Peters and the retirement officials afraid of? Not asking questions...Isn't that how the retirement system got into trouble in the first place?

In a letter to Peters yesterday, City Attorney Aguirre wrote:

"In no event is the ongoing litigation between SDCERS and the City a shield behind which SDCERS can hide to avoid appearing before the City Council or answering questions from the City Attorney. Please inform Mr. Wescoe that his appearance before the Council shall be unconditional. I look forward to a productive meeting on April 16." [See City Attorney Aguirre Letter to Council President Scott Peters]

WHAT CAN YOU DO? CONTACT YOUR CITY COUNCIL MEMBER AND SUPPORT YOUR CITY ATTORNEY'S RIGHT TO QUESTION RETIREMENT OFFICIALS.

District 1 Scott Peters 619-236-6611
scottpeters@sandiego.gov

District 2 Kevin Faulconer 619-236-6622
klfaulconer@sandiego.gov

District 3 Toni Atkins 619-236-6633
toni@sandiego.gov

District 4 Tony Young 619-236-6644
anthonyyoung@sandiego.gov

District 5 Brian Maienschein 619-236-6655
bmaienschein@sandiego.gov

District 6 Donna Frye 619-236-6616
donnafrye@sandiego.gov

District 7 Jim Madaffer 619-236-6677
jmadaffer@sandiego.gov

District 8 Ben Hueso 619-236-6688
bhueso@sandiego.gov

BLOG 03.19.07

by Michael Aguirre, San Diego City Attorney
Audit 2003–Teamwork!

With the completion of the City's 2003 audit by KPMG behind us, it is important we understand the lessons of our past financial management mistakes.

First, we must admit that at the center of our errors was the myth that city spending could increase without also increasing city revenues. For many years, this was the practice of San Diego City government.

It was endorsed and encouraged by some of our misguided Editorial friends at the Union-Tribune newspaper, leaders within some business circles, and officials from the municipal employee unions. The most absurd examples of this philosophy were the decisions by Mayors Susan Golding and Dick Murphy to increase pension benefits while decreasing pension contributions.

Second, we must learn how the City of San Diego was finally able to produce the audited 2003 financial statement. Once Arthur Levitt and his Kroll staff departed City Hall, City Officials came together as a team and focused on the completion of the 2003 audit.

More specifically, the Mayor, the Chief Financial Officer, the City Council's Audit Committee, and the City Attorney's Office worked in unison to force the City's outside auditor KPMG to document in writing the unresolved work needed to complete the audit.

Weekly, the list of unresolved items was put on the record in a public session, broadcast on the City's television Channel 24 so the public could follow the issue.

Once the issues were identified by KPMG, City staff worked diligently to provide to KPMG the required information and then KPMG was invited back for another appearance before the Audit Committee. This practice resulted in the audit's completion last Friday.

A review of the City's financial statement reveals that Mr. Levitt and his Kroll firm were responsible for delaying the audit for many months.

Third, another key factor in finishing the audit was the completion by the Securities & Exchange Commission's (SEC) investigation of fraud by City officials.

Key points of the SEC settlement were:

the settlement only applies to the City, and not to City officials or Council members;
the SEC concluded that the City through its officials acted with scienter–this means that city officials acted recklessly in failing to disclose material information regarding pension and retiree health liabilities; and
the SEC also concluded that the "City would have difficulty funding its future annual pension contributions unless it obtained new revenues, reduced pension benefits, or reduced City services."

Incredibly, Saturday's (March 17, 2007) editorial by the Editorial Board of the Union-Tribune newspaper has attempted to rewrite history by suggesting that the $20 million taxpayer funded Kroll Report was "essential to reaching a settlement with the U.S. Securities and Exchange Commission (SEC), which found that San Diego committed securities fraud by issuing misleading and incomplete bond disclosures."

As the lead negotiator for the City, the City Attorney's Office drafted the first settlement offer for review by the SEC one year before Kroll completed its investigative report on August 8, 2006.

Furthermore, in discussions with the SEC in Los Angeles on August 22, 2006, SEC officials assured the City that the SEC was conducting its own independent investigation.

At no point did SEC staff suggest that the City must accept the recommendations of the Kroll report or any other outside consultant. In fact, the SEC said it would be issuing its own remediation plan for the City.

The Kroll Report failed to answer the fundamental question of whether federal securities laws were violated by specific City officials. On the other hand, the SEC did make a determination that there were intentional violations by City officials of securities laws.

Also, no where in the SEC's Cease and the Desist Order of November 14, 2006, with the City of San Diego can be found a cite to the Kroll Report.

A review of the financial statement footnotes and public statements by KPMG show that it was the investigation by the City Attorney's Office and representations by City officials in a letter to KPMG about the alleged underlying wrongdoing that was central to KPMG's audit.

KPMG used Kroll and Kroll used KPMG to run up their respective bills to over $27 million dollars. At some point hopefully the newspaper will admit it was wrong to back Kroll.

Fourth, even though KPMG has released the 2003 financial statement, the City must still complete audits for 2004, 2005, and 2006. This will not happen unless City officials work together in the same way we did to complete the KPMG audit.

Specifically, City officials must hire an independent auditor, make sure that budget authority is exercised within the internal controls set by our City Charter, and follow the requirements for a 15-year amortization schedule to pay down the pension debt as mandated by voters on November 2, 2004 when they passed Proposition G.

Interestingly last fall, with bi-partisan support in Congress, President George W. Bush signed into law a requirement that private pension plans that are in trouble must address their unfunded liability over a --7 year period.

In quoting Winston Churchill, the release of the 2003 audit is not the end of our financial crisis, not the beginning of the end, but it is the end of the beginning of that crisis.

We must rely on team work and sound principles to work our way through the remaining audits and pledge to correct past bad financial practices.

I believe with the leadership of our Mayor, our City Council Audit Committee, the City Council, and the City Attorney's Office we can get the job done.

BLOG 02.23.07

by Michael Aguirre, San Diego City Attorney
Show Me The Money!

On February 21, 2007, David Wescoe, Retirement Administrator for the San Diego City Employees Retirement System (SDCERS), gave an update to the City Council's Budget and Finance Committee.

Mr. Wescoe announced that the pension system's funded ratio had increased from 68.2% to 79.9% just in the period of one year. Fellow San Diegans that, if true, is a remarkable achievement! That means that either the City's retirement liabilities dramatically declined----which we know is not true. Or, it means that the investment performance was out of this world. When I sought to quiz Mr. Wescoe concerning his presentation, he said that his legal counsel had advised him not to answer any of my questions. At that point Mr. Wescoe fled the Committee room.

During the presentation Mr. Wescoe provided the following figures for SDCERS investment performance: For the one-year period ending December 31, 2006 the retirement fund's rate of return on investments was 14.08%, placing SDCERS in the top 42% of public pension plans in the Callan Associates public fund database.

For the three-year period ending December 31, 2006 the annualized rate of total return was 12.28%, ranking in the top 12% of the Callan public fund group; and for the five-year period ending December 31, 2006 annualized returns were 11.05% which placed SDCERS' performance in the top 3% of public pension plans. For the ten-year period ending December 31, 2006 the annualized rate of return was 10.09%, placing SDCERS in the top 4% of public pension plans for the decade.

Wow, what a miraculous performance! Who wouldn't want to invest their money with these guys? Still, its gotta be an investment manager's nightmare when you consider that the growth of pension fund liabilities has been greater than the growth of fund assets in all but two of the last 13 years.

Now, anybody reading this blog should be interested to know two things: First, although experienced in the administration of mutual funds, Mr. Wescoe has had no prior experience in the administration of pension funds; and, second, the much-ballyhooed increase in funding ratio is quite a remarkable turn around given the fact that Mr. Wescoe's statements are dependent on the continued use of the same discredited assumptions which were made by the previous pension administrator Lawrence Grissom.

As we all know, Mr. Grissom had been under extreme criticism due to the use of faulty assumptions underlying his administration of the pension fund. Now, his replacement, Mr. Wescoe, is trying to hold as true the same ill-fated assumptions during his administration.

I would be ecstatic if I thought that the City could simply count on investment earnings to get the pension fund out of its current fiscal nightmare, but hoping and trusting is not going to make it so. We should give the numbers coming out of SDCERS a cold, hard look. And we should expect that the SDCERS administrator would give the taxpayers of our fair city the simple courtesy of answering a few questions that attempt to shed light on the true nature of the crisis confronting the City's employee pension system.

Listen to the above-referenced Budget & Finance Committee meeting of February 21, 2007. The SDCERS item runs from 25:17 to 1:41:20.

BLOG 02.16.07

by Michael Aguirre, San Diego City Attorney
There He Goes Again

San Diego Union-Tribune editor Bob Kittle is back at it again. Appearing on the KPBS radio program Editor's Roundtable, hosted by journalist Gloria Penner, Kittle and a couple of other news scribes opined on such weighty topics as North Korean nukes, the departure of U.S. Attorney Carol Lam, and the kind of job that Mayor Sanders is doing.

The show was the focal point of a luncheon meeting of San Diego's prestigious Rotary Club 33 and included questions offered up from club members.

On the subject of local government an audience member generated some round tabling amongst the editors when he commented on the fact that San Diegans "voted for a strong mayor, not a strong mayor and wacko city council" and asked "is the mayor powerless if the majority of wackos want to change what the voters approved?"

After that back and forth, another questioner asked "Do you think overall that the contentious city attorney has been a positive or negative for the City of San Diego?"

Kittle obviously wanted to take his shot as Ms. Penner exclaimed surprisingly: "Ah, you want to answer that Bob Kittle, you?"

And he did. "Well I wouldn't use the word wacko. But I do think in all seriousness we have a genuine problem because of the City Attorney's obstructionism, and his manner, and his inability to work with anyone. So that is a very serious problem."

It appears that one of the serious problems we have in San Diego is an editorial writer whose newspaper failed to do its job and expose the scheme by City Hall insiders to rig the employee pension system and move hundreds of millions of dollars of pension liabilities to future taxpayers. It has resulted in the current $1.5 billion deficit in the City's retirement system.

And where was Bob Kittle during this time? He was at the helm of the newspaper's editorial board steering its support for the motley cast of political characters who were the architects of today's financial Armageddon.

The fact of the matter is that the City Attorney is working constructively with the Mayor and those City Council members who embrace reform.

As for the charge of being an obstructionist, I will continue to obstruct all efforts by city hall power brokers to bamboozle, defraud or harm the citizens of San Diego. Whether it involves corrupt union leaders intent on keeping illegal pension benefits or greedy corporations that rip off the City to the tune of $20 million under the guise of conducting an investigation.

My job is to provide a voice for taxpayers who were not present at the table when these misadventures began. For it is they who will ultimately bear the financial burden created by the few insiders who worked the system for their personal benefit.

Bob Kittle's job is easy. Just look in the mirror and ask how could he have failed his readers so miserably?

Listen to the above-referenced segment of Editor's Roundtable. The segment can be heard from minute 37:00 – 37:52.

BLOG 02.15.07

by Michael Aguirre, San Diego City Attorney
Blogging by the Barrel

This past Sunday, the Union-Tribune published an editorial on the "double-dipping" that City employees are entitled to if they choose to participate in the City's Deferred Retirement Option Plan (DROP).

The editorial claimed that the City Attorney "came up empty in his bid to persuade Superior Court Judge Jeffrey B. Barton to set aside $750 million in existing retirement benefits for city workers, including the DROP program." The Judge actually praised the Office for its hard work.

In his December 14, 2006 ruling, Judge Barton said of the City Attorney's Office: "The legal principles the City uses to challenge the benefits in this action appear to be one of the few available mechanisms to do so under the remedies available in the state court system. Despite the creative use of these principles and the excellent presentation of the case at trial by the City, previous inconsistent positions taken by the City before the filing of the cross-complaint raise significant obstacles to the City's current effort to undo the remaining pension benefits."

The previous inconsistent positions taken by the City that Judge Barton alluded to occurred in 2000 and 2002 before I became City Attorney. These mistakes involved the same cast of characters that created the labor agreements that have taken our City to the brink of financial ruin.

In the continuing test of wills between the City Attorney and the Editor-Politicians at the San Diego Union-Tribune, not a news cycle goes by without this Office submitting written responses to that publication whenever they take a critical shot at us.

Unfortunately, the folks who run the paper lack the guts to provide to their readers with the full give and take. They will tell you it is a process called editing. We say it is a process called censoring.

The issues surrounding the evolution of the City's employee pension debacle are very complex and deserve a full and thorough airing. That should be reflected in the reporting of any good newspaper engaging in good journalistic practices.

We responded by submitting a 684-word letter-to-the-editor. The paper printed all 110 of those words. Now, let's concede that our submission was lengthy and perhaps some editing was in order. But it appears there was some content of our response that the politicians at the U-T did not want their readers to see.

So, for the blog-thirsty public that would like to see our full letter to the U-T, read on. Regarding: "Double-dipping / DROP pads city pensions to absurd levels" (Opinion Feb 11), the Union-Tribune was right to come out against the City's Deferred Retirement Option Plan (DROP) that the City's actuary recently determined will cost taxpayers up to $400 million.

Begun in 1997, DROP was expressly conditioned on the City finding that it was cost neutral. City Attorney investigators and attorneys have determined that the cost study was never performed and that studies developed by the retirement system's actuary showing that DROP cost the City millions of dollars was concealed from the public. The City Council has the power to drop the DROP program and the Mayor and the City Attorney are both supporting an ordinance that would drop DROP.

The U-T has asked for outside legal counsel to review the City Attorney's opinion that the City Council has the authority to act in this matter. The U-T supports its point of view by citing an opinion of an attorney who was one of the architects of the DROP program. This attorney was legal counsel for the San Diego Municipal Employees Association (MEA) when its officers negotiated the agreements in 1996 and 2002 to increase pension benefits and decrease pension contributions. Two of the MEA agents have been charged with crimes in state and federal court. Why the U-T would cite this attorney as a credible source is a puzzle.

Evidence of the MEA attorney's deep knowledge and complicity in the pension benefits scheme is a May 17, 1996 letter written to the City's Labor Relations Manager. In the letter the attorney conveyed what it would take to do the deal: "I also cannot overemphasize that the level of employee skepticism and distrust regarding any tampering with funding methods related to the retirement system is enormous and will require a yeoman's effort by every person associated with MEA to overcome. MEA will not undertake this formidable task unless the gains in benefit levels for the employees MEA represents are clearly respectable and credible rather than de minimus."

The letter was one of the first signals that the deal the City and Unions were poised to cut could be disastrous for the financial stability of the pension system. It was part of a scheme by City Hall insiders to rig the pension system and move hundreds of millions of dollars of pension liabilities to future taxpayers. It has resulted in the current $1 billion to $1.5 billion deficit in the City's retirement system.

The U-T has lost all objectivity in its editorials regarding the role that the elected City Attorney has in representing the City of San Diego in legal affairs. Our effort to set aside the illegal pension benefits is a case in point.

In his ruling, Superior Court Judge Barton said of the City Attorney's Office: "The legal principles the City uses to challenge the benefits in this action appear to be one of the few available mechanisms to do so under the remedies available in the state court system. Despite the creative use of these principles and the excellent presentation of the case at trial by the City, previous inconsistent positions taken by the City before the filing of the cross-complaint raise significant obstacles to the City's current effort to undo the remaining pension benefits."

Instead of wasting ink denigrating the City Attorney, the politicians at the Union-Tribune should look in the mirror and ask where your paper was during the decade-long pension debacle and why you didn't expose it. Some watchdog the U-T turned out to be.

Mike Aguirre

BLOG 02.12.07

by Michael Aguirre, San Diego City Attorney
Never Hate

Over the last several months, I have been spending time reading the writings of the late Dr. Martin Luther King, Jr. The civil rights leader was at the center of the effort to transform the evil system of segregation and discrimination into a new way of life--equality for all. Along the road Dr. King was confronted with many sick souls who misused their power to frustrate his efforts to achieve the full measure of the American Dream.

Rather than hate his enemies Dr. King urged his followers to love them. Dr. King taught that "we are challenged more than ever before to respect the dignity and the worth of all human personality." His point was that "all men [and women] are equal in intrinsic worth." But Dr. King did not stop there. He endorsed the idea of loving your enemies and defined love as "the understanding, creative, redemptive goodwill for all men." The kind of love which Dr. King spoke of was "the love of God working in the lives of men." Dr. King decided the foundation of his American dream would be built on love and not hate.

Which brings me to the subject of today's blog, the editorial chief at the Union-Tribune (U-T) Bob Kittle. For many years, Mr. Kittle has been a spokesperson for the entrenched system of the powerful interests that have controlled our City government.

Mr. Kittle favored the ticket guarantee agreement for the football team owners. He favored the candidacy of former Mayors Susan Golding and Dick Murphy. He regularly attacks with a vengeance anyone who disagrees with his newspaper and he has a practice of misstating facts. The U-T management of the newspaper allows Mr. Kittle wide latitude.

Some of us have fought back. We have countered Mr. Kittle's false statements with the truth. Recently, I released an email showing that Mr. Kittle was engaging in "envelope journalism." While Mr. Kittle was receiving favors from a council person, he was busy arranging the U-T's political endorsement of the council person.

Earlier this year, I spoke in detail about a number of Mr. Kittle's editorials that were supported by false statements. The management of the newspaper failed to take any action and instead has allowed Mr. Kittle to engage in increasingly hateful editorials.

While, reading the writings of Dr. King over the weekend, I came upon a passage in one of Dr. King's sermons entitled "Loving Your Enemies" that seemed to describe and explain Mr. Kittle's behavior. It struck me that Mr. Kittle was caught up in hate and that his editorials and statements reflected not the wisdom of calm reflection but instead the out of control anger of a man consumed with hate. Here is what Dr. King said:

There is nothing more tragic than to see an individual whose heart is filled with hate. He comes to the point that he becomes a pathological case. For the person who hates, you can stand up and see a person and that person can be beautiful, and you will call them ugly. For the person who hates, the good becomes bad and the bad becomes good. For the person who hates, the true becomes false and the false becomes true. That's what hate does. You can't see right. The symbol of objectivity is lost. Hate destroys the very structure of the personality of the hater. ***

The way to be integrated with yourself is to be sure that you meet every situation of life with an abounding love. Never hate, because it ends up in tragic, neurotic responses. Psychologists and psychiatrists are telling us today that the more we hate, the more we develop guilt feelings and we begin to subconsciously repress or consciously suppress certain emotions, and they all stack up in our subconscious selves and make for tragic, neurotic responses. ***

[W]hen you start hating anybody, it destroys the very center of your creative response to life and the universe; so love everybody. Hate at any point is a cancer that gnaws away at the very vital center of your life and your existence. It is like eroding acid that eats away the best and the objective center of your life. So Jesus says love, because hate destroys the hater as well as the hated."

And so, should Mr. Kittle and his colleagues at the paper read this blog I hope it will trigger within the editorial leadership a response to think through whether it serves the paper and the people of San Diego to continue with the chain of hate embraced by Mr. Kittle.

BLOG 01.30.07

by Michael Aguirre, San Diego City Attorney
U-T Needs An Audit Committee

The masthead logo of the New York Times, which dates back to 1896, describes its publication as printing "All The News That’s Fit to Print". While no newspaper is sacrosanct when it comes to completely separating its editorial and news departments, at least the Times aspires to try.

Unfortunately, the San Diego Union-Tribune lacks even the aspiration to prevent the crossing of the boundary that is supposed to keep the policy positions supported by its editorial page from influencing the news gathering side of the paper. In fact, at the U-T, the editorial page creates the "truth" to which its news reporters must succumb.

During the run up to the $20 million Kroll rip-off of city taxpayers, the U-T’s Editorial Board met with and wrote editorials in support of Kroll CEO Arthur Levitt and his audit team. The newspaper repeatedly urged the City Council to continue the flow of tax dollars to Kroll, hired to investigate the City’s finances, and warned that to not do so would imperil the completion of the City’s 2003 audit by KPMG.

Well guess what? The much ballyhooed Kroll report was released on August 8, 2006 and KPMG still hasn’t completed our 2003 audit. As we know, Kroll was paid $20 million for its effort. KPMG is at $6.6 million and climbing. Oh, and did I tell you that Arthur Levitt billed the City of San Diego for his visits with the U-T Editorial Board?

So it came as no surprise this morning when I read the U-T news story about the inaugural meeting of the City Council’s newly formed Audit Committee. Comprised of three city council members, the U-T reporter wrote that "its creation fulfills one of dozens of recommendations in a $20 million review of San Diego’s financial practices".

Crediting Kroll with having recommended the creation of the City Council Audit Committee is pure fiction. It was the City Attorney’s Office that called for such a committee 1 ½ years before the Kroll report was released.

On February 22, 2005 I released an eight-point legal action plan to address the City’s financial condition. Recommendation No. 7 urged "that the Mayor and City Council authorize the City Attorney to prepare ordinances and resolutions necessary for the creation of a City Council Audit Committee."

BLOG 01.19.07

by Michael Aguirre, San Diego City Attorney
Double Standards

The recent Union-Tribune (U-T) editorial criticizing Executive Assistant City Attorney Don McGrath for using profanity in an inadvertent e-mail exchange exposes a glaring double standard by U-T Editorial writer Bob Kittle who himself used profanity in an e-mail while seeking favors from an elected official.

The January 19, 2004 e-mail exchanges between Kittle and City Councilmember Scott Peters illustrate a violation of the ethical codes governing journalism as laid out by the Society of Professional Journalists. The two became very close in the early days of 2004, shortly before the U-T endorsed Peters in his bid for re-election to the District 1 City Council seat.

In the e-mails Peters reported on efforts to expedite the removal of telephone poles near Kittle’s La Jolla home. Peters wrote, "Here is the letter Casey Gwinn [former San Diego City Attorney] sent in on Thursday evening, which I said I would get to you...I didn’t mention it in front of Karin Winner [editor of the U-T], but I think your telephone poles come down this week."

Kittle’s reply illuminates the cozy relationships he had developed with Peters. Kittle wrote, "Thanks much. We’re going to run Casey’s piece on the op-ed page later in the week, not as a letter to the editor but as a stand-alone commentary. I guess I should quickly tell my neighbors that I’ve asked you to take down the telephone poles, so that both you and I get credit for this great achievement..."

Kittle seeks even more special treatment from the Council member when Kittle wrote, "Now, as for the traffic on La Jolla Mesa. It truly does pose a serious safety hazard, especially for the downhill traffic...Now if you can solve this problem I will personally tell Bill Zongker to apologize to you for his f---off comment! Don’t take it personally, Scott. Hell, half the people who call me each day give me some version of the same...."

The e-mail exchanges sum up the hypocrisy of the U-T’s editorial criticizing the coarse language used by Executive Assistant City Attorney McGrath. On the one hand they criticize me for not disciplining Mr. McGrath, who inadvertently sent the e-mail from his private home e-mail account. And yet, there is no record that Mr. Kittle was ever disciplined by U-T management for sending his e-mail on the newspaper’s corporate e-mail account.

Kittle’s request for special favors from an elected City official that he is supposed to objectively cover violates the principles of ethical journalism. Responsible reporting means avoiding conflicts of interest, not slanting stories, and not reporting on stories that affect a journalist’s personal, economic, or political interests.

This morning, I had the opportunity to speak with Kittle on these issues. He appeared on the KPBS show Editor’s Roundtable with Gloria Penner. You can hear our discussion on the KPBS web site on KPBS 89.5 FM on Sunday morning at 6 a.m., or see it for yourself today on Cox Cable Channel 4 at 4 p.m.

As to the e-mail sent by Don McGrath, it was an inappropriate action on his part. Mr. McGrath has apologized to attorney David Strauss. That was the right thing to do and it was done.

BLOG 01.12.07

by Michael Aguirre, San Diego City Attorney
Reflections

In order to gain guidance and perspective on dealing with the numerous issues faced by our City, I often seek out books written by or about leaders who have also had to deal with crises. One such publication is a charming compilation of letters exchanged between Winston Churchill and his wife Clementine.

Contained in Winston and Clementine: The Personal Letters of the Churchills, edited by their daughter Mary Soames, is a June 1940 letter from Clementine to Winston in which Clementine scolds her husband on his apparent ill temperament.

It is evident that Clementine believes one can achieve more success through kindness and civility than with brutish behavior. The letter struck a chord with me because I have often heard similar comments about my style:

My Darling,

I hope you will forgive me if I tell you something that I feel you ought to know.

One of the men in your entourage (a devoted friend) has been to me & told me that there is a danger of your being generally disliked by your colleagues & subordinates because of your rough sarcastic and overbearing manner-It seems your Private Secretaries have agreed to behave like schoolboys & ‘take what’s coming to them’ & then escape out of your presence shrugging their shoulders-Higher up, if an idea is suggested (say at a conference) you are supposed to be so contemptuous that presently no ideas, good or bad, will be forthcoming. I was astonished & upset because in all these years I have been accustomed to all those who have worked with & under you, loving you-I said this & I was told ‘No doubt it’s the strain’-

My Darling Winston-I must confess that I have noticed a deterioration in your manner; & you are not so kind as you used to be.

It is for you to give the Orders & if they are bungled-except for the King, the Archbishop of Canterbury & the Speaker you can sack anyone & everyone-Therefore with this terrific power you must combine urbanity, kindness and if possible Olympic calm...--I cannot bear that those who serve the Country & yourself should not love you as well as admire and respect you-

Besides you won’t get the best results by irascibility & rudeness. They will breed either dislike or a slave mentality-

Please forgive your loving devoted & watchful Clemmie.