San Diego voters will get to decide next year whether the city auditor should be allowed to retain independent legal help when officials feel the city attorney may present a conflict of interest.
The City Council this week approved the March 2024 ballot measure on a divided vote after some heated debate between Auditor Andy Hanau and City Attorney Mara Elliott, who said her office is responsible for legal counsel across the city government.
Hanau said his office only expects to seek outside lawyers in specific cases where it thinks the City Attorney’s Office may present a conflict of interest. He said he expects to spend up to $180,000 a year on independent attorneys.
“We don’t work in the interests of city management,” Hanau said before the vote. “We work in the interests of our residents and taxpayers who entrust the city to provide essential services and to be transparent and accountable.”
But the city attorney argued against placing the measure before voters.
Even if voters approve the measure, the auditor would not have the authority to audit the city attorney’s office, Elliott said, citing a similar case in Los Angeles.
“Our city’s auditor likewise does not have legal authority to audit or investigate the City Attorney’s Office,” she told the council. “There’s no legal authority that supports this position.”
This was the first time Elliott had publicly argued that her office was not subject to review by the city auditor.
After the vote, Elliott said her legal opinion had come up in private discussions several times over several years. She said the auditor is not an enforcement official, and that the office’s reviews are limited to city departments rather than elected officials.
The ballot measure was approved on a 5-3 vote, with Councilmembers Jennifer Campbell, Marni von Wilpert and Stephen Whitburn opposed.
Whitburn, who chairs the audit committee that brought the matter forward to the council, did not comment during the discusssion or explain his decision prior to his vote.
Von Wilpert, who worked as a deputy city attorney before winning election to the City Council, said she opposed the measure because of its cost to the city.
“It seems like we’d have too many lawyers in the mix,” von Wilpert said. She said the measure seemed to be “more about wanting a second opinion when you disagree with the City Attorney’s Office.”
Under the city charter, the city auditor is supposed to have access to any or all documents needed to complete an independent report. The charter also provides the auditor the legal authority to audit all agencies and offices within the city government.
Former city auditor Eduardo Luna was among those members of the public who testified in favor of placing the issue on the ballot.
“This is long overdue,” said Luna, the city’s first independent auditor, who said he had been denied access to material from the City Attorney’s Office when he was in charge. “This is something the Office of the City Auditor should have had access to right when the office was created.”
Luna also said the charter does not exclude the City Attorney’s Office from city audits.
In its presentation to the council, the City Auditor’s Office pointed out that every county auditor in California has access to its own lawyers when conducting an independent audit in order to prevent potential conflicts of interest.
Hanau also provided letters of support for the ballot measure from two professional trade groups and the former state auditor Elaine Howle.
