The Office of the City Auditor, whose responsibilities include examining San Diego city business practices and challenging elected officials and their appointees, has spent years seeking its own attorney as a way to limit potential conflicts of interest.
Come Monday, members of the San Diego City Council are scheduled to decide whether voters should grant the independent watchdog permission to hire its own lawyers. Based on prior votes by the council and its committee, the decision is likely to be close.
If approved, voters would consider the ballot measure at the March primary election.
The question, which has sharply divided council members and is strongly opposed by City Attorney Mara Elliott, dates back nearly four years, when then-interim city auditor Kyle Else first proposed the ballot measure.
Elser and his successor, City Auditor Andy Hanau, have cited numerous examples of conflicts of interest between auditors and the City Attorney’s Office as the reason for retaining independent legal help.
In previous memos, Hanau has noted city real estate deals such as the failed indoor skydiving center the city purchased without an independent appraisal and the former Sempra Energy headquarters at 101 Ash St. the city bought absent any inspection.
The City Attorney’s Office, which signed off on both of those acquisitions, rebuked the findings of a 2021 audit that raised sharp questions about the city’s real estate decisions.
The report included a number of recommendations aimed at preventing future mistakes.
While Mayor Todd Gloria agreed to implement a checklist and take other steps to protect the city, Elliott objected to most of the findings.
According to Hanau, the City Attorney’s Office did not fully cooperate with city auditors reviewing the Ash Street and skydiving center deals, among others, Hanau said in 2021.
“We must be able to obtain independent legal advice when we determine it is needed to best serve the public,” Hanau wrote in a prior memo. “We believe there is a structural conflict because the (city attorney) advises city officials and departments that we are charged with auditing and investigating.”
But Elliott has contended that city rules delegate sole responsibility for city legal work to her office.
“It is my office’s view that even the auditor must have oversight,” she said in a 2022 memo. “An elected city attorney is 100 percent independent and accountable to the people, and not to any one individual or department.”
Under the proposal being considered Monday, the council would place the measure before San Diego voters during the March primary election. If approved, it would empower the city auditor to bring in his own attorney in cases where he felt the city attorney posed a potential conflict.
In a staff report to the council ahead of the Monday meeting, Hanau said he expected his office would spend money on outside lawyers only when needed.
“We anticipate requesting approximately $180,000 per year for independent legal services, although actual needs will vary depending on the audits we conduct and the fraud, waste and abuse allegations we receive and must investigate,” he wrote.
The issue has been moved forward numerous times but has yet to make it to voters.
In a split vote last year, the City Council agreed to proceed with meet-and-confer negotiations with the two unions that would be mostly affected by the change to an independent counsel for the auditor. Under existing collective bargaining agreements with the Municipal Employees Association and Deputy City Attorneys Association, the city was required to negotiate terms over how any privae lawyers would be retained.
Earlier this year, the council voted 5-4 to approve the language negotiated with the MEA and DCAA. The issue Monday will be whether to formally place the matter on the ballot.
In June, Council President Sean Elo-Rivera and Councilmembers Joe La Cava, Kent Lee, Monica Montgomery Steppe and Vivian Moreno voted to approve the agreement reached with the two labor unions.
Councilmembers Jennifer Campbell, Raul Campillo, Marni von Wilpert and Stephen Whitburn were opposed.
