San Diego Union-Tribune

LET’S TAKE POLITICS OUT OF LEGAL ADVICE

- BY MONICA MONTGOMERY & MARK KERSEY

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.

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