The rest of the story

Not to throw more fuel on the fire raging between City Attorney Mike Aguirre and the Union-Tribune, but it’s worth pointing out that the U-T omitted a significant part of a recent story.

CityBeat and voiceofsandiego.org both filed Public Records Act requests for the transcript of an Aug. 2, 2005, closed-session meeting of the City Council, and the Union-Tribune piggy-backed on voice’s request. The meeting is newsworthy because investigators from the State Bar asked the City Council to waive attorney-client privilege so they could read the transcript. Council President Scott Peters and others have charged that Aguirre defied the orders of the City Council by filing a lawsuit on behalf of the council against the San Diego City Employee Retirement System (SDCERS) amid his campaign to have certain employee benefits declared illegal by a judge.

As noted by the Union-Tribune’s Alex Roth and Jennifer Vigil in a Feb. 29 story, the City Council clearly voted 5-1 at the closed-door meeting (the District 2 and 8 seats were vacant at the time) to direct the City Attorney’s office to counter-sue SDCERS, which had sued the city to get a ruling from a judge on the legality of the benefits. The rationale, as stated during the meeting, was that if the SDCERS were to drop its suit, the city’s countersuit would keep the case open. The council’s caveat, however, was that the City Attorney’s office would have to sue in Aguirre’s name only, not on behalf of the city or the City Council. Aguirre was not at the meeting; he was represented by Assistant City Attorneys Don McGrath and Les Girard.

The U-T story goes on to report that Aguirre in 2006 sued SDCERS on behalf of the city. “Aguirre did so, opposing lawyers contend, to keep the judge from throwing the case out of court,” the story says. “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 story continued.
Roth and Vigil went on to explain that, during the closed meeting, Peters’ main point was that if the City Council sued SDCERS, that could be interpreted as a statement that the council believes the benefits are illegal, and the city employee unions could claim, in court, that the council was negotiating contracts in bad faith.

Roth and Vigil quoted McGrath: “I think Scott is legally correct. That doesn’t look good, and it probably isn’t good.”
While it’s true McGrath said that, there’s more to the story. Roth and Vigil completely ignored what McGrath’s colleague, Girard, had to say. Here’s how Girard responded to Peters’ concern:

“The determination—in our opinion, based on the research we’ve done, the determination whether or not the benefits are legal or illegal doesn’t necessarily lead to a conclusion that there’s been bad faith bargaining. The law—the law generally says that if a benefit—benefits can be taken away, provided that something of similar or equal value is given.

“So when all of this is said and done, if the Court finds that the benefits are illegal, they’re illegal.”
Girard continued: “The question of whether you’re bargaining in good faith or dealing with your employees or retirees in good faith will depend upon what you do in light of that declaration. … A determination is either on it’s [sic] way or gets made, and then everybody goes in a room and figures out how to deal with the situation.”

In other words, Girard seems to be arguing that the City Council could sue SDCERS—in its name, not Aguirre’s—for a declaration on the benefits and head off a union claim of bad-faith negotiating by making it clear to the judge that the city intends to sit down with the unions and hash out a compromise, in good faith, that perhaps puts the city in a better financial situation than it’s in with the benefits in place.

In the meeting, Peters responded to Girard by making it clear that he does not think the benefits are illegal and that he does not want the unions to think he thinks they are. Said Peters: “And I’m also—you know, just for the record, I think that the legal strategy is novel that because you don’t have a funding source it’s illegal. Now, I understand that there’s—a lot of research has gone into it, but if I hire a roofer who fixes my roof, and I can’t say, you know, ‘When I made the contract with you, I didn’t have the money to pay for it, so it was illegal.’”

Nonetheless, Peters makes it clear that he wants an answer—an answer to Aguirre, not to him. And he said that “it was a blessing that the Retirement Board sued the City, and said they wanted declaratory relief. So let’s find the answer.”

Then he gets around to responding to Girard: “So, just, you know, although I would love to see a resolution where we sat down and talked, I don’t want the litigation to be used as some sort of hammer to get us to the table.” He added that he wanted to go approach the case the least “mean” way possible.

Aguirre has very publicly accused The U-T’s Roth of being in league with Peters and others against him, and Aguirre has drawn sharp criticism for the way he’s leveled his accusations, including telling Roth that he needs “counseling.”