Ballot measure revived to strip elected San Diego city attorney of civil work, legal advisory role

San Diego City Attorney Mara Elliott
(Sam Hodgson / The San Diego Union-Tribune)

The goal is November 2024, after the City Council’s Rules Committee unanimously approved further analysis of a measure that would divide the current job between two people


Critics who say legal advice from San Diego’s city attorney is sometimes tainted by politics are proposing a November 2024 ballot measure that would chop the job into two parts — one person for criminal cases and another for civil matters.

The civil side of the job, which includes handling litigation and advising city officials on legal matters, would no longer be an elected position. Instead, the City Council would hire a lawyer to handle those duties.

The criminal side of the job, which includes prosecuting misdemeanors like drunk driving and domestic violence, would handled by someone who would continue to be elected by city voters every four years.

The person handling the criminal side would continue to be called city attorney. The person handling the civil side would be called municipal counsel.

Opponents of such a change say it’s crucial to have the lawyer handling civil matters be answerable only to the voters, not to the council members who appointed that person and could fire them at any time.

Supporters say elected city attorneys’ political ambitions or ideology can taint the laws they write and the legal advice they give to the mayor and council. They also say the scrutiny elected officials face can affect the advice given.

The proposed change got strong support from the City Council four years ago, but it didn’t make the November 2020 ballot because there wasn’t enough time to complete negotiations with labor unions representing employees who would be affected.

Council moves measure forward in 7-2 vote, contending job has become too political

April 21, 2020

The council’s Rules Committee voted unanimously last week to revive the proposal, have the city attorney’s office analyze it and launch labor negotiations early enough that they will be complete in time for the November 2024 ballot.

City council approved proposal to take civil duties away in April but didn’t take a final vote before Friday deadline

Aug. 7, 2020

Council President Sean Elo-Rivera said he was particularly swayed by strong support for such a fundamental change from many former elected city officials, including former council members Barbara Warden, Sherri Lightner, Myrtle Cole, Jim Madaffer, Byron Wear and Scott Peters.

Peters, now serving in the U.S. Congress, sent the council an open letter last week contending the change is needed to fix an outdated structure that no longer meets San Diego’s needs.

“Simply put, it does not make sense to require our city attorneys to also be candidates and political figures,” Peters wrote. He also said the change would “professionalize and depoliticize the office, improve transparency and lead to better policy and litigation outcomes.”

Former City Attorney Casey Gwinn, who served in the job from 1996 to 2004, told the Rules Committee that the change is necessary.

“Based on my experience as the elected city attorney and watching the journey in recent years, I strongly support this proposal,” he said. “It is time for the city attorney to have the ability to focus on criminal cases.”

In addition to San Diego, most large cities in California — including San Francisco and Los Angeles — elect city attorneys to handle civil matters and legal advice. But most of the state’s smaller cities assign those tasks to appointed lawyers.

Four council members support change, want November ballot measure

March 13, 2020

Supporters of the proposed change note that only three of the nation’s 20 most populous cities have elected city attorneys — and San Diego is one of them.

“This is truly the outlier to hiring your municipal lawyer,” said Gil Cabrera, a former member of the San Diego Ethics Commission who ran for city attorney in 2016. “Asking the city’s top lawyer to also be a politician while advising and working with other politicians creates too many inherent conflicts.”

Cabrera, Elo-Rivera and other supporters of the change said it is not being motivated by Mara Elliott, who has served as San Diego’s city attorney since 2016, or by concerns about who will succeed Elliott next year.

Assemblymember Brian Maienschein and Chief Deputy City Attorney Heather Ferbert are both running to replace Elliott, who can’t run for re-election because of term limits.

Cabrera, who ran unsuccessfully for San Diego city attorney in 2016, stressed that San Diego began electing its city attorney in 1931 when the city had only 150,000 people.

“What worked in the 1930s is not suited to the complex needs and divisive political culture of the 21st century,” he said. “It won’t fix all the problems, but it takes us in the right direction.”

Elo-Rivera said the change would also allow the elected city attorney to focus more on important issues, such as gun violence restraining orders and pursuing slum landlords instead of litigation and policy advice.

He also stressed that an appointed municipal counsel wouldn’t be any less reliable than an elected one, because both would have a legal and professional responsibility to ensure the city is acting in accordance with the law.

Councilmember Kent Lee, elected last November, said he hasn’t experienced the turmoil between council members and the city attorney that is partly motivating the proposal. But Lee said the city attorney shouldn’t be distracted by the pressure of running for office.

“It’s quite daunting for any individual,” he said.

Councilmember Joe LaCava said the idea appears to him perfect on paper, but he conceded that the new model would probably bring its own set of problems.

Critics say the way to solve any problems with the city attorney’s office is not to reduce the public accountability of the job. They also say it’s important for the city attorney to always be able say what he or she needs to say without the fear of being fired.