San Diego Magazine / October 2004 / Tipping the Legal Scales

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Tipping the Legal Scales

MIKE AGUIRRE HAS IT. Name recognition. That’s what happens when you run for Congress, San Diego district attorney and city council (twice).

Never mind that the political activist— he’s an original opponent of the Chargers ticket guarantee—lost every time. For better or worse, people have heard of Aguirre. And as we close in on the November general election, despite wildly differing polls, Aguirre has to finally be considered the front-runner. This goround, it’s the city attorney race.

“In many ways, my campaign for this office started 22 years ago,” postures Aguirre, a securities lawyer and former financial fraud investigator. “I’ve lost [bids for] office four times. I’ve tasted humble pie many times.”

Local observers might have picked the Bambino-bedazzled Boston Red Sox to win the World Series before Mike Aguirre would win political office. But he pulled 46 percent of the vote in the three-candidate March primary. His nearest competitor got 28 percent. Third-place finisher Deborah Berger (26 percent) has since endorsed Aguirre. Could this be the year the Aguirre curse ends?

Trailing primary-winning Aguirre was Leslie Devaney. The current executive assistant city attorney (she’s the number-two person in the office) believes a lack of name recognition led to her fairly dismal showing in the primary. Aguirre needed just 4 more percentage points to have won the office outright.

“Mike had name ID and Deborah Berger, and I did not,” says Devaney, sitting poolside in her large house in a serene but burgeoning upscale section of Scripps Ranch. “People really got confused about Berger and me. We were two tall women with dark hair from the office [Berger, now recovering from a post-election brain aneurysm, was deputy city attorney].

“She was more upset with the office, and I was the number-two, but our platforms were almost identical. I had a number of people say, ‘I voted for you because . . .’ and then describe me as something and say, ‘You’re Berger, right?’ In my opinion, Aguirre had all the name ID— but there were still [54 percent of voters] that said, ‘Not him.’ ”

WHY NOT HIM? Depending on where you stand, Aguirre is either an articulate watchdog or a spotlight-loving loon.

Let’s just say Devaney doesn’t characterize her opponent as a watchdog. “I believe it’s dangerous for the city attorney to draw attention to themselves or their positions, other than really focusing on doing good legal work,” she says. “In the past, we’ve seen Mr. Aguirre as very divisive; he has a temperament, and he is very critical.

“I’m the first to believe there are changes that need to be made. But you shouldn’t resort to name-calling and throwing bombs. . . . You shouldn’t look at someone and say, ‘You’re crazy. It’s a terrible idea. I’m going to sue you.’ Then you immediately polarize people from wanting to come to the table to problem-solve.”

Aguirre is well aware of his reputation. His name was prominent in a September New York Times article that suggested San Diego could be at the brink of bankruptcy. Sitting in his somewhat disarrayed home office in Bankers Hill—the house is designated a historic site—Aguirre is asked if he is too flamboyant or too much of an activist to become city attorney. The job, after all—as both Devaney and Aguirre attest—is to give sound legal advice to the mayor and city council while representing what is best for all the citizens of San Diego.

“Well, I just think my style is not flamboyant,” Aguirre says. “When people say ‘flamboyant,’ they equate that with when I brought a lawsuit to try to stop us from doing the Chargers ticket guarantee —because I felt deeply that it was going to hurt us as a community. And it did.

“People will be very surprised if they expect that I’ll be flamboyant. I’ll only be involved in trying to keep the city out of trouble.”

Right. And a trained tiger would never attack onstage in Las Vegas during a Siegfried and Roy performance.

Okay. So if Aguirre is not “flamboyant,” would he settle for letting himself be labeled a “lightning rod?” “This is the dilemma in San Diego,” he says. “On the one hand, people say, ‘Well, where’s the leadership, where’s the leadership, where’s the leadership?’ And then someone tries to show leadership and people say, ‘You’re a lightning rod. You’re a gadfly.’

If you stand up and sincerely try to do the right thing, you’re going to take some flak. But you’re also going to win over some people.”

Devaney’s camp provides a transcript from a forum in which Aguirre says that if the mayor and council hold closed-door meetings he feels should be held in public, “I will leave the meeting . . . I will announce that the council has violated the law, in my opinion, and I will sue the council for violating the law.”

Not exactly a low-key approach. Indeed, the biggest fear concerning an Aguirre win in November is that a steady stream of public clashes will thunder out of City Hall.

In our interview, Aguirre says he won’t be calling daily press conferences announcing his legal advice— or whether the mayor and council chose to agree with him.

“Telling your client ‘no’ when they really want to hear ‘yes’ is a very hard thing to do,” Aguirre says. “But that’s what I will be able to do. And you don’t have to do it confrontationally. All of our opinions are going to be written, and well thought out. . . . Nine times out of 10, that’ll win people over. . .

“One of the things I’ve learned is that the city attorney doesn’t have to sue the city council—that’s something Deborah Berger has been helpful in letting me know. The city council can’t do something illegal unless the city attorney signs off on it.” Aguirre says his John Hancock won’t come on a rubber stamp.

THE BIGGEST PROBLEM during the eight years Casey Gwinn has served as city attorney, according to Aguirre, is that Gwinn sought to legally support what the mayor and council wanted to do —in lieu of simply giving the best advice possible.

“The elected city attorney of San Diego is not merely an attorney who carries out the wishes of the council,” Aguirre says. “But what has happened is that the city attorney has basically developed a codependent relationship with the council.”

Aguirre says a basic example is the city’s underfunding of the city pension fund. “State law prohibits underfunding,” he says. “It was illegal the day they did it. The city attorney has got to stand up and say, ‘I’m really sorry, but this is illegal.’ ”

Now that Gwinn is termed out, is it fair to tie Devaney to criticism leveled at her boss?

In a mild surprise, Devaney agrees to a fairly large extent with Aguirre on Gwinn’s tenure. “It’s been viewed and perceived that the city attorney basically tries to get the mayor and council where they want to go,” she says. “I think that effort has in fact been made. I don’t think it’s correct.

“The city attorney is elected by the people of San Diego to give legal advice —no matter what direction the mayor or council want to go. . . . I believe a lot of legal opinion has been given in closed session—and that has gotten the office and the city in trouble.” Her top-of-mind example is the Boy Scouts’ lease in Balboa Park. She says the advice from the city attorney was “appropriate and good.” But the issue of extending a sweetheart land lease to a religious organization was discussed inappropriately in closed session and not in public, Devaney says.

So what did Devaney do about issues she perceived as problems while in the office’s number-two position? “I had a discussion with Casey about how more of these items should be in open session,” she says. “He said, ‘Leslie, I don’t necessarily disagree. But the discussions we’re having in closed session are legal. And when you become city attorney, you can make the changes you think need to be made.’

“I wasn’t elected to have a coup over my boss. I appreciated his advice. But I didn’t agree, and I told him that.”

Nonetheless, Aguirre says Devaney has been “part and parcel” of the leadership team that’s led the city to its current down period. “She manages the office,” Aguirre says. “If you couldn’t stand up to the pressures when you were in office over the last two terms, it’s not a high likelihood you ever will.”

AFTER LISTENING to both candidates, the city attorney race doesn’t exactly seem like a Rubik’s Cube. It is, however, a fascinating convergence of personalities in an important and trying time in the city’s history. Aguirre is a perennial also-ran whose time has seemingly come. Those who distrust politics as usual will cheer his election. He appears to be a two-fisted fighter for open and honest government. He also does seem to enjoy the attention his public jousts bring.

Devaney is essentially running an Aguirre Lite campaign. She recognizes the public—at least the percentage willing to pay attention—has taken a dim view of a dearth of full governmental disclosure. She needs to separate herself from her boss.

As a candidate, Devaney is, on a certain level, safer than the incendiary Aguirre. Both claim to want to reawaken the notion of the city attorney being elected to serve the citizenry— not just its elected officials. Whose modus operandi do you prefer?

Prepare for the pit bull. Aguirre is closer than ever to a win. But—as one elected official recently told me— “He’s still got plenty of time to put a foot back in his mouth.”