San Diego Ethics II. An ethicist should understand that it's wrong to cite a legal opinion as your reason for taking a particular action
when in fact you have rejected that legal opinion. But the City's self-professed Ethics Commission has done just that.
As a result of the ruse, 16 prominent lawyers, mainly from San Diego, will not have to file Statements of Economic Interests that bare their ample assets to the public. At the time the purported Ethics Commission concocted the subterfuge, four of its six members were lawyers.
It began in late 2005, when civic activist Mel Shapiro complained to the commission that the lawyers who represented city councilmembers and bureaucrats in the various governmental investigations into pension-related wrongdoing should have to file the Statements of Economic Interests.
Most of the lawyers wailed that they were working for individuals, not the City, even though the legal bills were paid by the City. The lawyers refused to file their Statements of Economic Interests.
Stacey Fulhorst, executive director of the commission, kept telling Shapiro that she wanted an opinion from City Attorney Mike Aguirre. The key question: did these attorneys, like government-hired consultants, play a role in government decisions?
On February 9, Aguirre issued an opinion, limiting it to the attorneys representing councilmembers Scott Peters, Jim Madaffer, Toni Atkins, and Brian Maienschein. (Those attorneys are, respectively, Pamela Naughton, Thomas Zaccaro, and the firm of Morrison & Foerster, which represents both Atkins and Maienschein.)
Aguirre's opinion was clear-cut: "These attorneys have broad access to individual councilmembers. This access has the potential [italics mine] to influence governmental decisions on a variety of matters." Accordingly, those attorneys should disclose their financial interests.
But on June 15, Fulhorst wrote to Shapiro and said that his complaint had been dismissed. The lawyers wouldn't have to bare their fat assets.
Why? Well, opined Fulhorst, on February 9 the city attorney had issued an opinion on the topic. She attached it to her letter to Shapiro. She wrote, "In this memorandum, the City Attorney concluded that these types of attorneys should file [Statements of Economic Interests] if they are exceeding the limited scope of work authorized in their respective contracts and are using their relationships with their City Official clients as a means to influence government decisions." Shapiro's complaint had provided no such evidence, she wrote.
But Aguirre's opinion had said no such thing. "Stacey turned it upside down. In my opinion, the lawyers should file" because they had potential to influence government actions, says Aguirre.
I called and e-mailed Fulhorst. I said I didn't see where she got her interpretation of Aguirre's letter.
She got back to me by e-mail, singing a different tune. "As you indicate, the City Attorney did issue a memo in which he opined that attorneys representing individual City Officials should file [Statements of Economic Interests] because they may be influencing the municipal decisions made by their clients," she wrote. But Aguirre said they may be influencing government, not are doing so.
"The City Attorney has essentially speculated in his memo," Fulhorst wrote, and the lawyers on the purported Ethics Commission concluded that they cannot act on a legal opinion based on speculation or opinion.
Yet Fulhorst had cited Aguirre's opinion as a reason for turning down Shapiro's complaint and even supplied him with a copy of it. Didn't she think Shapiro can read?
The purported Ethics Commission "had their own legal counsel, had all these lawyers on the board, but [Fulhorst] wanted Aguirre's opinion," says Shapiro. "Then it was completely ignored," in fact, turned on its head.
Indignant, Shapiro went to his own lawyer. The action to absolve the lawyers "was done in closed session," he says. "The file is now closed, and they will hardly show you anything. There is no appeal. You can go to court, but there isn't a chance of winning. My lawyer says the law is on their side."
In mid-July, Aguirre wrote the four councilmembers and asked that they have their attorneys file the Statements of Economic Interests. With the so-called Ethics Commission's opinion in hand, the attorneys will certainly resist.
The lawyers who got off the hook have had many opportunities to influence San Diego government. Naughton represents Councilmember Scott Peters as well as Tom Story, the Sunroad executive who left the top land-use job at the City and joined Sunroad, and quickly started lobbying his former employees, thus breaking the law, according to the city attorney's office.
"Many worry that the Ethics Commission has done more to protect than correct the ethical transgressions of the city council," sums up Aguirre.