Would two city attorneys be better than one for San Diego?

There have been plenty of disputes between San Diego city attorneys and other elected officials at City Hall over the decades. Some have been legendary.

It’s far from clear whether that would change under a City Council proposal to dramatically change the job of city attorney.

The council seems poised to put a measure on the 2024 ballot asking voters to split the job in two, contending politics can get in the way of getting impartial legal advice because the city attorney is an elected official.

Council members repeatedly stress, to the point of suspicion, that this is not about current City Attorney Mara Elliott. Never mind that the proposal has advanced twice, both times during her tenure.

In the most basic terms, the City Attorney’s Office performs two key functions. It prosecutes criminal misdemeanor cases within the city limits, while at the same time handling the city’s civil litigation, advising the mayor and council, and drafting legislation at their request.

It’s the non-prosecution duties some council members have a problem with. They say an elected city attorney’s politics, ambitions or ideology can affect how they write laws or dispense advice, as David Garrick of The San Diego Union-tribune has written in covering this proposal since it surfaced in 2020.

The council’s Rules Committee last week voted for an analysis of the latest proposal, which would be expected to go to the full council and be placed on the 2024 ballot. During that hearing and those held three years ago, there were few specifics about when politics may have tainted advice or the drafting of ordinances.

The conundrum is familiar: a legal opinion may seem politically motivated by some, sage advice to others.

Proponents of the change want to make the civil side of the job an ap

pointed position, called municipal counsel. In other words, the council would hire their own attorney. A separate prosecutorial job would continue to be an elected position.

Examples of this elsewhere are hard to find. The closest may have been in Oakland more than a decade ago, though it wasn’t exactly a parallel situation.

In 2011, more than 73 percent of Oakland voters rejected a City Council ballot measure to change the city attorney from an elected to appointed post. The proposal also would have allowed the council to set the attorney’s salary without restrictions imposed by voters earlier.

The Oakland city attorney had been changed from an appointed to an elected position in 2001, and just one person had been elected to the job before the council tried to change back.

Then-city Attorney John Russo and the council clashed regularly. That tempestuous relationship was a key factor in the campaign, according to various post-election analyses.

Supporters of the measure argued it would allow the city to choose the best attorney for the job, instead of the best politician, and that it would free the office from influence by groups that funded the campaign for the attorney.

Opponents said an appointed attorney would feel pressure to shape advice to please their employers — and to keep the job — while an elected one would have independence and not feel threatened by telling the council what it didn’t want to hear.

Further, analysts suggested that the Oakland measure failed in part because people generally don’t like the idea of their ability to vote for or against officials being taken away.

That’s pretty much the same discussion now taking place in San Diego, as was the case three years ago.

So far, this appears to be mostly an insiders debate. There’s no sense that this issue is high on the list of public concerns in San Diego.

City attorneys in San Diego have been elected since 1931. They insist their legal advice is objective, but they are indeed politicians. They issue press releases, make public appearances, raise money and campaign just like the mayor and council members.

An argument can be made that the tension between the city attorneys and others grew after voters approved term limits in 1992, making competition for another office more intense.

But personalities — of the city attorney, mayor and council members — can be a factor, along with how the city attorney perceives the job.

Beyond the criminal prosecutions, they are often viewed as the attorney for the mayor and council. But they also take on the role of the people’s attorney, and those interests can conf lict with the interests of other officials.

Mike Aguirre, city attorney from 2004 to 2008, had his disagreements with then-mayor Jerry Sanders, among others.

His successor, Jan Goldsmith, and Mayor Bob Filner, who followed Sanders, had high-profile disputes. Filner sought to slash the city attorney’s budget and once showed up at a Goldsmith news conference and essentially heckled him.

When Filner was accused by numerous women of sexual harassment, the city had no clear way to extricate him from office. With the support of others, Goldsmith maneuvered to force Filner out in 2013. Filner eventually pleaded guilty to three criminal charges related to sexual harassment.

In 2020, Goldsmith told Garrick that if he had been appointed instead of elected, he would not have been able to take the action he did because Filner could have fired him. It’s not clear whether future mayors would have a role in hiring the proposed municipal counsel.

Earlier, Goldsmith’s advice on a ballot measure doing away with city employee pensions came into question because of politics — he was supportive of the proposal. He advised Sanders that the city did not have to negotiate the ballot measure with employee unions.

Voters overwhelmingly approved Proposition B in 2012, but courts later overturned the measure, contending the city was required to negotiate with the labor groups.

Elliott hasn’t openly clashed with other officials as much as some of her predecessors. But she did take the unusual step of issuing a lengthy opinion against Mayor Todd Gloria’s planned settlement of litigation involving the city’s troubled 101 Ash St. office tower, and appeared before the council, unsuccessfully urging members to reject it.

It’s impossible to say whether those situations would have played out the same if the city attorney had been appointed.

One question that hasn’t come up: If the city heads in this direction, why wouldn’t it try to hand off the misdemeanor prosecutions — likely for a price — to the District Attorney’s Office, which handles those cases for smaller cities in the county?

Perhaps the proposal has a better chance of winning at the ballot box by allowing people to still vote for a city attorney, even one with a reduced role.

If the council follows through, we’ll get to see whether San Diegans think two heads are better than one when it comes to their city attorneys.

What they’re saying

James Mccormack, Fitch Ratings’ managing director, via Politico.

“What we’ve seen in the United States is a steady deterioration in governance.”