San Diego Outside lawyers and consultants hired by City departments are supposed to file Statements of Economic Interests listing their income and gifts from city sources, as well as stock, bond, and local real estate holdings that could present conflicts of interest.
But despite a warning from the Ethics Commission last February, even the fattest of the fat cats are slipping through the cracks. They are not filing those reports or statements indicating that they are exempt. For example, Arthur Levitt is raking in $900 an hour as part of a team that is months late issuing a report on the pension mess, but taxpayers have no idea about his potential conflicts of interest because he has filed no report.
The same is true of lawyers who are being paid big bucks by the City to represent bureaucrats and councilmembers who are under investigation or have been charged over their roles in the pension debacle. With only one exception, those lawyers haven't filed Statements of Economic Interests.
In December, civic activist Mel Shapiro filed two complaints with the Ethics Commission. First, he listed the attorneys representing the councilmembers and bureaucrats and noted that they had been hired by the city manager beginning in 2004 as federal government agencies launched investigations into the City's concealment of its massive pension deficit. The hiring continued through 2005. In a second filing, Shapiro listed the well-paid individuals connected with Levitt's Kroll, Inc., which has now sucked $20 million out of the city for a pension report, and Vinson & Elkins, a firm that took in $6 million for issuing two pension whitewashes.
"The attorneys are consultants under the state law," said Shapiro in his complaint, citing a declaration by the state's Fair Political Practices Commission that an attorney hired to perform ongoing legal services for an agency is normally considered a consultant. That's particularly true when the lawyer is standing in for a government staff member, as is true in the pension-related cases in San Diego. For the most part, the lawyers' work is still far from complete. Clearly, it's "ongoing," and equally clearly, it's an assignment that normally would have been taken by a lawyer in the city attorney's office.
In January in closed session, the commission decided to look into nonfilings by many lawyers and consultants, not just those cited in the complaint, according to Shapiro. On February 21 of this year, Stacey Fulhorst, executive director of the commission, sent a memorandum to 21 City agencies and departments, including the mayor and councilmembers, police and fire, auditor and comptroller, stadium manager, labor-relations manager -- essentially, all elected officials and bureaucrats.
Fulhorst reminded them that both the City and State of California required that the documents be filed or the individuals be specifically excluded in writing. "Unfortunately, most of the City's departments and agencies are not providing this information to the Clerk's Office," Fulhorst complained. "Ultimately, many consultants are simply not filing anything, which leaves them open to the possibility of enforcement action by the Ethics Commission, the City Attorney's Office, and the state's Fair Political Practices Commission." Some violators are subject to fines of hundreds of dollars, others thousands, according to Fulhorst.
The gist of her letter: get your asses in gear and force the fat-asset lawyers to file or explain in writing why they should be exempted.
Later, she thanked Shapiro for his complaint. She told me that she understands that the Centre City Development Corporation has found 100 people who should file.
In his first complaint to the Ethics Commission, Shapiro listed the attorneys representing bureaucrats and councilmembers: Eric Acker, Colin Murray, Shirli Fabbri Weiss, Sean Prosser, Robert Friese, Thomas McNamara, Pat Swan, Theresa McAteer, Anthony Colombo, Jerry Coughlan, Thomas Zaccaro, H. Paul Kondrick, Pamela Naughton, Frank Ragen, John Wertz, Nelson Brav, and Michael Attanasio. Shapiro charged that they had violated the municipal code by not filing Statements of Economic Interests.
Shortly, Shapiro filed an addendum, complaining that Arthur Levitt, Troy Dahlberg, and Lynn Turner of the Kroll consulting firm had not filed, along with Paul Maco and Richard Sauer of Vinson & Elkins.
A week ago, Shapiro and I checked the city clerk's office. Of all those attorneys and consultants, only one, John Wertz, had filed. I suspect that he filed because he sits on the Qualcomm Stadium board of directors rather than because he is being paid to represent former city auditor Ed Ryan, who resigned in early 2004, two weeks before the City administration admitted that it had been misstating the pension deficit. Wertz did not return my e-mail.
Typical of those slurping at the public trough, most lawyers and consultants did not answer my calls and e-mails. Some were out of town. All those who answered said they had never been told they had to file. Some argued that they are not required to file.
Said Ragen, "It has never come up. Nobody sent me a letter, knocked on my door; I have never heard of it."
Said Brav, "I have no idea about it."
Said Colombo, "I am not going to comment."
Said Murray, "Neither the City nor the [Ethics] Commission has advised [my] firm [that] the filing of such a form is required."
Said Weiss, "No one has asked that we file a Statement of Economic Interests." Further, she argued, she is not a consultant to the City. She was "retained by private individuals to whom the City owes an obligation to pay defense costs." (Ah, the legal mind.)
Said Coughlan, "I seriously doubt any such requirement exists as to me because, inter alia, I have not represented the city or any department of the city but only individuals." (See Weiss's hairsplitting above.)
Said Prosser and Acker, "We have been retained by the councilmembers for a limited, specific litigation or action and are therefore otherwise exempt from such filing obligations."
Said Swan, "I would be surprised if such a requirement existed, because an outside attorney with a limited engagement does not appear to be within the scope of persons" required to file. Swan represents former deputy city manager and pension board member Bruce Herring.
Friese said he would "file whatever is necessary" if he determines he should do so.
My guess is that these lawyers and consultants will soon be told they must file, but from the tone of their responses to me, they will give the City a tough fight. These are some of the most prominent lawyers in San Diego. They won't want their assets a matter of public record.
According to Fulhorst, each department has its own "tailored" conflict-of-interest code. Departments have been told for a long time that consultants and lawyers they hired had to file or be given an exemption in writing. "What we think happened is that the departments weren't realizing that every time they hired a consultant, they had to make the determination whether the person had to file and communicate with the city clerk's office."
Now the city attorney's office is studying how to set up uniform filing rules for the departments. "We're inclined to rule that they [lawyers] have to file," said city attorney Mike Aguirre, although the delayed decision won't come for several more weeks. Some attorneys with limited engagements may not have to file, but those raking in big bucks for long engagements probably will.
Typically, the mayor's office refused to comment.
The money-sucking Kroll consultants and the lawyers charging fat fees to represent councilmembers and bureaucrats "slipped through the cracks, but with hundreds of others. They didn't slip through alone," said Fulhorst.
That shouldn't be much solace to San Diego taxpayers.