LET’S TAKE POLITICS OUT OF LEGAL ADVICE
Americans have a long tradition of electing the prosecutors who represent the people in the courtroom, and for good reason: The character of the criminal justice system is a statement of our values. In San Diego, we set the standards for law and order as a city and county by electing the city attorney to prosecute infractions and misdemeanors and the district attorney to prosecute felonies. Voters see how these elected leaders perform their duties and hold them accountable at the ballot box.
By contrast, the professional legal services of a government agency are provided by legal advisers who are support staff who help the agency function. In this sense, government is like any other business that requires professional expertise to make sure they follow the law and mitigate risks.
Yet the current organizational structure of the city of San Diego tasks our elected prosecutor with the unrelated myriad of legal matters that come with running an 11,000-employee operation, a role that should be apolitical. This structure is ill-advised and does not serve either the city’s officials or its citizens well, regardless of who holds the office of city attorney.
Other cities and counties offer alternative models for both effective governmental legal services and strong, communityoriented criminal law and prevention programs. For example, San Diego County has an appointee-led Office of County Counsel that provides advisory and litigation support to the Board of Supervisors, county departments, county officers, boards and commissions, while the elected district attorney prosecutes crimes, provides comprehensive services to crime victims and participates in crime prevention programs. The state of California similarly has an elected attorney general as prosecutor and an appointeeled Office of Legislative Counsel to advise lawmakers and draft laws. Both alternative models remain accountable to the public. One acts as prosecutor for the good of the public, while the other functions in an advisory capacity to ensure the agency’s legal interests are managed in a lawful and fiscally responsible manner.
It is our belief that the city should adopt an alternative model that recognizes this distinction and takes the politics out of the legal advice our city leaders receive. Together with co-authors council members Vivian Moreno and Barbara Bry, we have proposed reorganizing the city’s legal services under a system that reflects the relationship between the people and their prosecutor, and an attorney and their client.
Under this cost-neutral proposed reorganization, the elected city attorney would retain the role of prosecutor and steward of the family justice center. Our city attorney would continue to serve and protect San Diegans by prosecuting crimes, pursuing gun violence restraining orders, seeking justice for victims of wage theft and consumer fraud, and bringing cases on behalf of the people of California. A newly created office or offices led by an appointee would assume municipal advisory and litigation divisions.
This model is the most prevalent dynamic among cities in San Diego County, California and the nation, as most cities utilize an elected prosecutor in the district attorney and an appointed legal adviser for the day-to-day business of local government. Notably, several California cities that previously had the city of San Diego’s current system (including Los Angeles and Chula Vista) have changed their structure to add independent legislative counsel or otherwise modify having all legal services under an elected official.
The need for this reform has been discussed for many years, including consideration by San Diego’s 2007 citizen charter review committee, as well as our most recent charter review committee on which council member Kersey served in 2015 and 2016.
The timing of this proposal is not a reflection on any current officeholder or candidate, nor is it a reaction to any particular event. It is an acknowledgment that we have a flawed system that has needed to be changed for a long time.
This proposal has the support of a diverse coalition of former city leaders, including Rep. Scott Peters, D-san Diego, and former council members Sherri Lightner, Byron Wear, Myrtle Cole, Barbara Warden and Jim Madaffer.
Collectively these council members have served with five different city attorneys over the span of more than 25 years. They are Democrats, Republicans and independents, and their city attorney counterparts have likewise spanned the ideological spectrum and range of approaches to the office.
Yet they are unified in the conclusion that “irrespective of who holds the office of city attorney (or Mayor or Council, for that matter), the current system simply does not make sense.”
We have a flawed system that has needed to be changed for a long time. Other cities and counties offer alternative models that are superior.
Montgomery represents District Four on the City Council and lives in Skyline. Kersey represents District Five on the City Council and lives in Black Mountain Ranch.