Why this matters
The practice known as double dipping — taking a pension and a full salary — was roundly criticized and lawmakers severely curtailed it for most public employees more than a decade ago. But there’s a loophole for elected officials, one that could benefit Assemblymember Brian Maienschein if he were to win his race for San Diego city attorney.
At the close of 2008, then-San Diego City Councilman Brian Maienschein ended his career on the council after a two-term tenure that was often consumed with controversy over the city’s troubled pension system.
He moved on to a 12-year career in the state Assembly representing the 76th District that includes parts of Escondido and San Diego. While he was in Sacramento, however, a piece of his San Diego city career went with him.
Maienschein has been collecting a pension from the city since 2009, first drawing it when he left at the age of 39. Last year it totaled more than $30,000, according to figures provided by the San Diego City Employees’ Retirement System, known as SDCERS, augmenting his nearly $130,000 salary as an assemblymember.
Ineligible to run for the legislature again because of term limits, Maienschein has set his sights on returning to local office — as San Diego’s elected city attorney, replacing Mara Elliott.
If he were to defeat his opponent, Chief Deputy City Attorney Heather Ferbert, Maienschein would pull down both his annual pension allotment, plus the almost $240,000 annual salary as the city’s top lawyer — a practice known as “double dipping.”
State lawmakers sought to reign in that practice a decade ago, changing rules for most public employees who returned to government work after formally retiring.
But since then, the legislature and the city have quietly added carve outs that specifically allow pensioners elected to public office to collect both a full pension and full salary.
Double dipping has been an issue in previous campaigns in San Diego. Former Mayor Jerry Sanders, a career police officer who served as chief, promised during his first term that he would not take both his pension and salary, then reversed himself. And in her unsuccessful 2018 run for supervisor, former District Attorney Bonnie Dumanis hired lawyers who lobbied county pension officials over whether she could take both.
In addition to potentially boosting his pay if he were to win, Maienschein’s status as a pensioner could also pose problems. The city and SDCERS have sued each other in the past, and Maienschein’s status as a beneficiary of the system raises the potential of future legal conflicts.
If he were to win, Maienschein would not earn additional retirement benefits as city attorney, according to an SDCERS spokesperson.
Maienschein declined to say if he would continue to take his pension if he were to win in November. He declined a request for an interview through his campaign.
But in a statement, he said that Ferbert would be in the same position.
“Whoever sits in the City Attorney’s office will be earning a pension … and therefore potentially in a conflict,” the statement said. “I will certainly recuse myself from any matter which would have an impact on my pension.”
But Dan Rottenstreich, the campaign manager for Ferbert, said it was wrong to imply Ferbert also had a conflict if she were to win.
“There can be no comparison with Maienschein’s self-dealing and potential conflicts of interest,” he said in a statement. “Heather Ferbert is earning credit towards a pension when she retires, just like all city employees, and wouldn’t even be eligible to collect a pension while City Attorney.”
Pension reform, with exemptions
The contest for city attorney is one of the most closely watched local races this election cycle. The winner serves as the chief legal adviser to the government, defends the city in civil lawsuits, and prosecutes misdemeanor crimes.
SDCERS records show Maienschein has collected $421,879 in total pension payments from 2009 through the end of July. Double dipping was one of several practices that lawmakers sought to curtail a dozen years ago in the face of ballooning public pensions system deficits — and growing taxpayer outrage.
In 2013, legislators passed a package of reforms aimed at double dipping and other pension “spiking” techniques known as the Public Employees Pension Reform Act, or PEPRA.
But in 2015 and 2017, lawmakers quietly made the elected official carve out.
They were part of massive end-of-session budget trailer bills that contain a grab-bag of legislation and were voted on as a single package by each chamber. These trailer bills avoid scrutiny because they do not go through the normal committee hearing process.
Voting records show that Maienschein — then a member of the Republican Party — voted against the 2015 bill, but voted for the 2017 bill. The latter extended the exemption for elected officials to county governments that are covered under county retirement systems.
Maienschein switched parties and became a Democrat in January 2019.
Because San Diego is a charter city, PEPRA does not apply to city of San Diego workers. Nonetheless, in 2016 the City Council followed the legislature’s lead with its own amendment to the retirement system rules, allowing elected officials to simultaneously collect a salary and a pension.
John Pelissero, the director of government ethics at the Markkula Center for Applied Ethics at Santa Clara University, said it was unclear if Maienschein as a city attorney would have a conflict overseeing litigation against SDCERS.
Still, he said it would be best if Maienschein never put himself in a position where that posed a conflict.
“But to avoid any appearance of a conflict of interest, the city attorney could recuse himself from any involvement in the litigation and assign the case to a deputy,” Pelissero said in an email. “That would help with the optics of the situation in the eyes of the public.
“By doing so, the city attorney would be demonstrating that he places the public interest as his primary concern and not any private or financial interest of his own.”
San Diego double dips
Sanders, a career police officer who eventually became chief before running for mayor, said in his first campaign in 2005 he would not take both pay streams while serving.
A section on his campaign website laid out his position. “If elected mayor, I will remove any position of conflict by not re-entering the pension system,” the website stated, according to a story in The San Diego Union-Tribune. “Additionally, I will donate back to the city the portion of my mayoral salary equivalent to my pension benefits to eliminate any double dipping.”
Four years later and after he won re-election, however, Sanders began taking his full pension and salary. He was unapologetic about it, telling the U-T he did not think taking his full salary in his second term was double dipping.
“I’m not wealthy,” Sanders said. “I’m just like everybody else. I’ve got to make ends meet.”
The issue arose again in 2018 as former District Attorney Bonnie Dumanis mounted a campaign for a seat on the Board of Supervisors. News reports in the U-T revealed that Dumanis had hired lawyers to lobby the county pension system to allow her to collect her county pension of $268,000 on top of her $172,000 annual supervisor salary. She also drew a pension from her years working as a Superior Court judge.
Dumanis insisted that she never had an intention of double dipping and did not intend to accept the supervisor pay. Instead, she said she was inquiring if she would be required to accept the salary.
Records of the communications between her lawyers and the county showed no reference to her refusing to accept a salary, and county lawyers used the term double dipping when describing her request, the U-T reported.
It is difficult to tell what the political consequences were for both. When Sanders took his pension he was ineligible to run for a third term because of term limits.
Dumanis, a Republican, ended up losing handily to Democrat Nathan Fletcher in 2018, capturing just 32% of the vote in a district that favored Democrats.
Public pensions dominated city politics and elections for more than a decade starting in the early 2000s, when the financial health of the pension system first came to light.
For years the city had put less money into the system than required, while at the same time increasing benefits for many workers. The underfunding created a massive unfunded liability in the system, requiring the city to shovel more money into the pension fund to close the gap.
The implosion of the system led to two criminal investigations, a probe by the Security and Exchange Commission, and contributed to the resignations of the city auditor, city manager and mayor.
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