City Attorney Halts Conservatorship Filings – and Looks to the County to Step Up

San Diego City Attorney Heather Ferbert has paused her office’s conservatorship petition filings in Superior Court, an unconventional tactic that her predecessor pursued to try to force the county’s hand. 

Since 2021, the city attorney’s office has assigned at least one lawyer to the Lifesaving Intervention For Treatment program. The program focuses on people police and firefighters are constantly responding to, regularly churn in and out of jails and hospitals and often have complex physical and behavioral health challenges. 

For years, the city’s last-ditch effort to save people they argued could otherwise languish or die was to go to county probate court to seek a conservatorship after other efforts to aid a person failed. City attorneys would appear before a judge and face off against the county, which could then potentially be forced to provide care for the person. 

County officials detested this approach. Now the city attorney has decided to halt her office’s probate court filings – at least for now. 

Late last month, Ferbert abruptly reassigned the attorney most recently dedicated to the LIFT program, triggering concerns from city officials who work with the program and at least one who once did that some people could die without legal intervention. 

The change comes three years after Councilmembers Marni von Wilpert and Jennifer Campbell successfully rallied for a $546,000 budget allocation to bolster staffing for what they described as a homelessness-focused conservatorship and treatment unit.  

In a statement following questions from Voice of San Diego, Ferbert’s office wrote that her team decided to halt the conservatorship filings “due to several factors, including changes at the county management level and resource challenges” tied to a tight city budget. Her office also noted that the conservatorship petitions were “resource heavy” and had come with “significant challenges.”   

“We look forward to continuing to work with the county on its approach to conservatorship petitions as the newly shaped Board of Supervisors selects the next county counsel,” Ferbert’s office wrote. 

Her office also wrote that Ferbert “looks forward to finding ways to work with the county to do this work without the city needing to expend substantial and limited resources on conservatorship petitions.” 

In the meantime, Ferbert’s team said her office would continue to advise staff on the LIFT Program, noting that three attorneys provide legal support to the Fire-Rescue Department that houses it. 

All this represents a shift for Ferbert, who said during her campaign that she expected to bolster the program. 

“It is an incredibly important program and as the next city attorney, I plan to continue to expand that work,” Ferbert said during a Politifest debate last October. “And I think on the other side of it, the City Attorney’s Office and the city as a whole really needs to engage the county in trying to put more resources to programs like this because these are the people we see on the street who really break our hearts.” 

Ferbert, a Democrat, noted at the time that the city filings weren’t ideal and that she wished the city and county could work together to support LIFT patients. 

Now, with a Democratic majority on the Board of Supervisors and the appointment of an acting county counsel following the abrupt retirement of the previous one, Ferbert seems to think that might be more possible. 

County spokesperson Tim McClain said Monday that county staff were unaware of changes to the LIFT program and will continue to work with the city. 

“Helping those struggling with mental health issues, substance use disorders, and alcoholism by linking them with the right services for their unique needs is challenging and also the heart of the county’s mission,” McClain wrote in an email. “We thank the members of the city’s team for their tireless effort in this space.” 

The LIFT program first began in 2021 under former City Attorney Mara Elliott. Her office quickly grew frustrated with the county’s response to it. 

John Hemmerling, a former assistant city attorney who retired in 2022, said the program was spurred by conversations about an increase in repeat misdemeanor offenders who also had constant encounters with the city’s Fire-Rescue Department. 

For some, the City Attorney’s Office decided conservatorships would be appropriate. Hemmerling said county officials soon stifled the office’s efforts to pursue mental health conservatorships. Hemmerling eventually discovered another way to push the issue: probate conservatorship filings in Superior Court. 

“I found legal authority to be able to file those, and we did, and it pissed them off,” Hemmerling said. 

McClain did not respond to Voice’s question about how county officials viewed this tactic. 

By early 2023, the LIFT program had ramped up. 

In a March 2023 presentation to the City Council’s Public Safety Committee, Elliott and two other attorneys described efforts to first try to link patients with other programs. These patients included a person with schizophrenia and developmental disabilities who’d had more than 50 detentions for potential short-term mental health holds since 2015 and forgot “new information 10 minutes after being told.” Another had more than 220 emergency room visits from 2020 to 2022, harassed neighbors, vandalized her apartment complex and struggled with both schizophrenia and serious medical conditions. 

When LIFT program staffers were unable to successfully connect them to lower-level services and remained concerned for their safety, city attorneys asked the county to consider mental health conservatorships.  

As of March 2023, Elliott said her office had referred more than 20 people to the county for mental health conservatorships and when that didn’t work, sought probate conservatorships for some of them. 

“The county has opposed every petition we have filed,” Elliott said at the time. 

The city attorney later dialed back staffing for the program, and the city moved the program to its Fire-Rescue Department. 

Deputy Fire Chief Becky Newell said a LIFT program manager in the Fire-Rescue Department has since then coordinated with health care providers, case managers, the patients themselves and others to try to document what care a person has received and where they need more support. The program manager makes referrals to agencies such as federal Veterans Affairs and county Adult Protective Services.  

When those efforts weren’t successful in the past, details the LIFT staffer collected helped a city attorney prepare a probate court petition.  

Since 2021, the Fire-Rescue Department reports that the LIFT team has successfully argued for 26 probate conservatorships. Only two were officially denied. The program has served 81 people since its inception. 

“LIFT exhausts all other options,” Newell said. “Nobody here wants to take anybody’s rights to make their own decisions away. In the case of filing for conservatorship, it is because they’ve done multiple assessments to show that the person is not able to make decisions on their own.” 

Now the LIFT program manager is operating without the help of a dedicated city attorney who can file those petitions. She and others who work with the program are concerned. 

Jared Wilson, president of the San Diego Police Officers Association, said he met last week with the LIFT program manager, a sergeant on the police department’s Homeless Outreach Team and the city’s behavioral health officer. All were upset about the city attorney’s reassignment and what it could mean for vulnerable San Diegans.  

“This was a great tool for holding the county accountable for dealing with the worst cases out there and without it there is not a good means to do that,” Wilson said. 

Wilson, whose organization reached out to the City Attorney’s Office after the meeting, said the Police Officers Association was assured that Ferbert’s office supports initiatives like LIFT and is “figuring out ways we can make them effective.” 

Hemmerling was caught off guard by the City Attorney’s Office change, which he said means fewer solutions for people whose lives are at risk who are also draining public safety resources. 

“Putting forward a few staff members to reduce that front-end inefficiency was the whole point of it,” said Hemmerling, who argued the city attorney should be expanding the program even during tough budget times. 

Von Wilpert, a longtime advocate of the LIFT program, wrote in a statement that she is hopeful that the county – rather than the city – will step up now in the advent of behavioral health reforms at the state level. 

“In light of Proposition 1 passing and CARE Court being implemented, I look forward to the county’s new leadership fulfilling its responsibilities to help San Diego’s most vulnerable residents,” von Wilpert wrote. 

Campbell, who also championed the expansion of the LIFT program, struck a similar tone. She’s hopeful that sitting county supervisors, including those who make up the Democratic majority, and a new county counsel will shift the county’s approach. 

“The county should step up,” Campbell said. “I think we’re waiting to hear from them now: Are you going to step up and take this on?” 

Ferbert’s office said it remains focused on prodding the county too. 

“From the start, one of our office’s goals in supporting LIFT has been to motivate the county to fulfill its responsibilities to care for people who cannot care for themselves,” Ferbert’s office wrote in a statement. “The city attorney is still very much committed to this goal.”  

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