SAN DIEGO —
Andy Hanau had not even been named San Diego city auditor when the idea that the independent office should have access to its own lawyer was first proposed.
Now, nearly five years after former acting city auditor Kyle Elser began lobbying for his own attorney in cases that presented potential conflicts of interest, San Diego voters have granted that office the authority to retain its own legal counsel, rather than rely solely on the city attorney.
The measure, placed before voters in the March 5 primary election, appears clear to be certified a winner once all the votes are counted.
According to the county registrar, Measure A was leading by a 2-to-1 margin in early returns late Friday and was well on its way to becoming law, with about two-thirds of voters agreeing that the independent auditor’s office should be able to hire its own lawyer when needed.
Hanau said he was grateful for the vote of confidence from the San Diego electorate.
“We are obviously pleased that a strong majority of voters recognized that independent legal counsel is essential to the Office of the City Auditor’s oversight role,” Hanau said Friday. The measure “will better enable us to serve our residents and taxpayers.”
Until San Diego voters agreed to amend the city charter last Tuesday, the City Auditor’s Office did not have legal authority to hire its own lawyers.
Both Hanau and his predecessor argued that they needed to be able to retain independent legal advice in certain cases that might implicate the City attorney’s Office or other matters that could pose potential conflicts.
They cited numerous instances in which they said documents requested by auditors were withheld and other cases in which witnesses were not made available for interviews.
They also pointed out that many other agencies’ independent auditors and regulators across the state and country are empowered to retain their own lawyers when needed, including the California State Auditor and even the San Diego Ethics Commission.
“The city attorney advises both the city auditor and city officials whom the city auditor is responsible for auditing and investigating,” Elser wrote in a January 2020 memo to the City Council’s audit committee that oversees the office’s work.
“Therefore, we believe that providing our office with the authority to obtain independent legal counsel is necessary to prevent potential perceived or actual conflicts of interest that arise due to the city attorney’s client relationship with the city,” he added.
City attorney Mara Elliott repeatedly rejected the idea, insisting that her office was the only city department authorized to hire outside law firms.
In earlier statements, she noted that the city housing commission hires its own lawyers and their legal advice has resulted in negative outcomes for San Diego taxpayers.
“This office urges a thoughtful and inclusive approach that allows for meaningful discussion before undertaking additional significant changes to the auditing function,” Elliott wrote in a 2022 analysis of the matter.
“Ultimately decisions that impact the auditing function should ensure accountability, vigorous oversight and trust in the checks and balances important to our city’s fiscal health,” she added.
The idea of independent lawyers for city auditors bounced around city hall for years before making it to collective bargaining with affected unions representing city workers.
An agreement was reached last year and the City Council voted last year to place the question before voters.
Councilmember Vivian Moreno, who chairs the council’s audit committee, said voters spoke out strongly in support of the independent city auditor by approving the charter amendment.
“Measure A will allow the city auditor to seek the independent legal advice it needs to advance open and accountable government through accurate and objective audits and investigations,” she said.
Once the election results have been certified by San Diego County officials, the San Diego City Council, city attorney and Audit Committee will need to adopt a specific policy relating to hiring the outside lawyers.
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