A Short And Probably Very Irritating Word About The Proposed Mayor Bob Filner Settlement

57 Responses

  1. Ken White says:

    Yes, I am aware that "short" is comparative. Thank you.

  2. BradnSA says:

    His political party should have to pay some of the cost. They knew all about this, and let it go on anyway.

    You would think smart people would realize this would bite them in the ass at some point.

  3. adam says:

    hang on, i have to go tender my two-week notice at work so i can apply to law school. i've decided i want to be a lawyer.

  4. Mitch says:

    Legal system is flawed, but it is much better than the extra-legal system for settling disputes.

  5. Derrick says:

    And the Chargers suck

  6. Whandall says:

    Well, I think Filner isn't getting enough credit for his decision to leave, and the city is making a player's move here. It's best for everyone. And with this issue looming over the the City, it would be impossible to move on. He can now concentrate on spending more time with his family. Presumably by sexually harassing them.

  7. Peter H says:

    Apart from the public fisc, as a public entity, doesn't the City Attorney's office have an obligation to pursue the legally correct outcome, not just the outcome which most favors the city's bank account?

  8. Nicholas Weaver says:

    Oh, ken, you'd appreciate this: Part of Filner's argument on why the city should pay is that Filner never completed sexual harassment training.

    Now for those who haven't gone through the sexual harassment training (or given it), a failure of a supervisor (like, oh, say, the mayor) to complete the state mandated training means the city is also potentially on the line for any sexual harassment suit, even if the city never knew that the mayor was a horndog who actually beats Wiener in a "Perv Off" competition.

  9. ShelbyC says:

    " That suit may not prevail, but it will cost money to defend."

    Why defend it?

    P.S. Screw you Derrick. I mean, you've been right the past few seasons, but still…

  10. Ken White says:

    @Nicholas: I'm not sure if you are construing Filner's argument correctly. I don't read his lawyer to say "you may owe Filner money because you didn't train him on sexual harassment and he harassed." His argument seems to be "you may be liable to the women Filner sexually harassed because you didn't train him." That argument is possibly correct. Put very briefly, one theory (of several) on which an entity can be liable for sexual harassment is failure to train.

  11. Xenocles says:

    To me this falls into the category of "millions for defense but not one cent for tribute," but that's easy to say when it's not my money. (It's not the city council's money either, but at the very least they're the ones entrusted with it.)

  12. I wondered why anyone thought the city picking up any of the tab was a good idea, now I know.

    They should probably re-word that law though, in order to clearly exclude misconduct and the seventy or so not-quite-synonyms that politicians use to wiggle out of various shenanigans when caught. In case there's a next time.

  13. Kilroy says:

    You get what you vote for. There needs to be a way for the cost of such cases be levied against only those that voted for the miscreant in the first place.

  14. Nicholas Weaver says:

    Well, I found the lawyer's full letter: http://media.10news.com/image/Harvey_Berger_letter.pdf

    The money quote:

    Of course, under FEHA, the City will be strictly liable for any sexual harassment by a supervisor, even if it had no reason to know about it. So, of course, the City should have a strong interest in making certain that Mayor Filner has the resources to defend himself. Given the City's join liability if Plaintiff prevails, both for failing to conduct training and taking steps to prevent harassment, and due to the string liability aspects of the case, it would only make sense for the City to provide a defense to Mayor Filner. If it does not, it will be a political, not a rational decision.

    His lawyer's argument certainly says to me "since you're on the hook too, you should pay the legal bills"

  15. nlp says:

    Kilroy, I don't think it's possible, under the current voting system, for this to be calculated. And even if it were technologically possible, it should be opposed. And even if it were possible, it would be a bad idea. There are too many problems that would arise if the government knew who voted for whom.

  16. Bobby says:

    Or they could just pay say 50k to have him whacked. Justice is served and they save money. Joke.. Joke.. Because assassination politics essay gets people in trouble.. :-)

  17. Ken White says:

    @Nicholas: yes. I just wanted to distinguish that from the way some people are reading it incorrectly: "you didn't prevent me from harassing so this is your fault and pay me money."

  18. Nicholas Weaver says:

    Ah, yeah. I was unclear in my initial post. It should have been "should pay for Filner's legal bills"

  19. Kilroy says:

    @nlp: Is it really a secret who you vote for anymore? with the current split in politics, it takes about 5 minutes with someone to know exactly who they voted for in the last major election.

  20. Renee Marie Jones says:

    If he had tortured them and invoked "terrorism" he would have gotten off scot-free.

  21. R. Penner says:

    @Bobby, thank you for your contribution of "an experimental literary piece and an art project" — I'm sure everyone shall act accordingly.

  22. BBnet3000 says:

    They want him out that badly? Seems like it would be better to either let him serve out his term or impeach him.

    Also, what happened to Filner's presumption of innocence?

  23. Tarrou says:

    If the city can't win, the least they can do is run the shit downhill to the guy who deserves it.

  24. Xenocles says:

    "Also, what happened to Filner's presumption of innocence?"

    Is he on trial for something?

  25. Richard says:

    It can be more complicated. If the public entity refuses to provide a defense, the offending employee and plaintiff can enter into a stipulated judgment in any amount (with an agreement not to collect from the employee). If it is subsequently determined the public entity should have provided the defense and indemnified the employee the entity can't contest the amount of the stipulated judgment.

  26. nlp says:

    @Kilroy, you'd be surprised at how many citizens still keep their mouths shut.

  27. mojo says:

    Sounds like they'd be better off just whacking him and dumping the corpse in a TJ alley.

  28. pillsy says:

    There may be literally no way for the City of San Diego to win. The only course for the City may be to minimize harm.

    I think this may have been a foregone conclusion once they elected Mayor Creepazoid.

  29. mud man says:

    Groping is "within the scope of his employment"??

  30. Bun and Cheese says:

    SDSO, SDPD and the city DA's office continue to be strangely (not) quiet. I've seen none of the usual back-thumping, glad-handing each other about how they're all just johnny-on-the-spot with the Filner sexual battery (still against the law, I think) matters. Now, Ken, I ask you or any of these other good gentlemen here, if this was you in Filner's shoes, would you not suppose that the po-po would be in front of the cameras daily with a new press briefing making you look like someone that needed putting away? Even if none of these women that came forward has made an official police complaint, law enforcement doesn't need that in this state to go forward. Which brings me to my last point of ire- it's not enough to just "go public" with what happened, as a victim. Sitting in front of a camera and telling your story but opting to not go through the court system (yes, it's a gd nightmare) is not really doing what is needed. Thank you for another great post. I enjoy your site a great deal.

  31. Earle says:

    There is no presumption of innocence in the court of public opinion. Those brought before this court are presumed guilty. Even if exculpatory evidence is brought to light they're still presumed guilty. Of something. Because gay marriage.

  32. EH says:

    Such is the way with executive types. As long as he doesn't personally gain from the settlement, I'm gonna go with "meh."

  33. BaronLurk says:

    It's my money.

    That said, I commend the City Attorney and Council for (1) limiting the City's legal expense exposure, (2) getting the buffoon to resign, and (3) allowing us to move forward with some certainty about restoring the 11th floor at City Hall to a non-Clothing Optional Zone sometime before the end of the next Leap Year.

  34. MaxCat says:

    Ken, maybe you could answer a question or at least provide an opinion.

    I do not know for a fact but I have heard that sexual harassment lawsuits are very difficult to win. I have been told, that frequently, as in this case, there may be an extreme amount of hype, but there is often a significant lack of proof and the whole thing degrades to a “he said, she said” sort of thing. Then you throw in the general (though wrong) male sentiment of “she probably asked for it anyway” with a healthy dose of (the equally wrong) “if she wants to play in a man’s world” and the court ends up finding for the defendant.

    So, suppose that the City of San Diego were not to agree to pay for Mayor Filner’s legal fees in advance and then the sexual harassment case or cases were to go to court and the plaintiffs were to loose.

    How would that impact the city’s argument that the “act or omission was not within the scope of his or her employment” since technically, according to the court, there was no “act or omission”?

    As an aside, I have lived in and around the City of San Diego since 1963; this is just another day in the circus that is San Diego politics. Even before Frank Curran and the “Yellow Cab Scandal,” an accusation has always been just as good as proof, probably better, for the local “news” teams. And the general rule of San Diego politics has always been that you never have to worry about real issues so long as you have a nice juicy scandal or salacious crime to keep everyone distracted.

  35. Zack says:

    @Earle Prenda Reference? :)

    I can't wait until we get some updates in that set of cases. It's the legal equivalent of a tiger running its claws through a side of beef- messy, swinging all over the place to no result, and viscerally satisfying.

  36. Malc says:

    @BBnet3000 Part of the fun is that San Diego doesn't have a mechanism for impeaching the mayor.

    Ken is right, the city doesn't have any real good options:

    1. Fight the charges alongside Filner, and pay legal fees, and risk paying judgements to the victims… (meanwhile the business of the city goes nowhere) OR
    2. Fight Filner and pay legal fees, and risk paying judgments to Filner *and* the victims… (meanwhile the business of the city goes nowhere) OR
    3. Wait for a recall election, which will cost a few million, to remove Filner, then proceed with options 1 or 2.
    4. What happened: Filner quits, the city tries to settle with as many people as possible, and recognize those of his victims who have a political or other axe to grind have their sting drawn, somewhat, because Filner is no longer an active politician.

  37. Dr. Wu says:

    In Chicago, we have an additional legal tool which has been used on occasion to resolve similar dilemmas. We call it "The River."

  38. Richard says:

    MaxCat: If the county refuses to defend, Filner and the women could enter into a stipulated judgment that he harassed them and they suffered X amount in damages. Then the only matter to be tried would be whether or not the county was required to defend him. If the jury/judge find the county was wrong to refuse to defend him, then it will be on the hook to pay the amount agreed on between Filner and the women.

  39. MaxCat says:

    Richard: My question is a little different than what you answered. Suppose the city refuses to pay for Filner’s defense, Filner refuses to settle, the matter then goes to court and Filner prevails. What is the city’s responsibility for the cost of Filner’s defense at that point? Also, would the answer be different if the city had agreed to settlements with the plaintiffs beforehand? In other words the city settles but Filner does not and Filner prevails in court – what is the city’s responsibility regarding Filner’s defense at that point?

    We seem to have moved into a reality where, for certain things, an accusation is taken to be the same as guilt by the press and the majority of people. And personally I’m not certain that the courts have moved into that reality yet, at least not completely. If the courts have not, then the concept that that the plaintiffs have a “slam-dunk” case is not as certain and the possibility that Filner could prevail in court becomes real – after all he might even be innocent of the accusations.

    Mostly, I’m asking just because I’m curious about the philosophical point. However, it was made clear long before this issue came up that the city attorney and the city council of the City of San Diego never wanted Filner to be mayor and they have wanted him gone since day one. I’m not accusing anyone of anything but I’m sure the predisposition of those negotiating on behalf of the city to want him gone must have had an effect on their decision making.

  40. Richard says:

    MaxCat: A jury determination that the mayor is not liable for harassment won't necessarily be determinative as that requires the improper conduct to reach a certain level. The city and the mayor could still litigate whether the conduct he was sued for was outside the course and scope of employment or was malicious, etc. If that jury/judge determines the allegations are false, then they are likely to find that he was sued for conduct within the course and scope of employment as I understand his interactions with the accusing women took place as part of his official duties (though I admit I haven't looked at all the claims).

  41. BaronLurk says:

    @Richard: "If the county refuses to defend …" I believe you meant to say 'the City'. The County has no dog in this fight although the Sheriff is handling the investigations into reports of misconduct (SDPD has a conflict, as they provide the Mayor's security), and the District Attorney (a mayoral candidate against Filner) has recused her agency, passing any criminal prosecutions up to the State Attorney General's office.

  42. Rich Rostrom says:

    The only course for the City may be to minimize harm.

    Hooray for the legal system!

    Oh yeah. That's 80% of what the legal system does.

    It's what the legal system is for, mostly. (Wills are one clear exception. They prevent harm by ensuring that the transaction – which is inevitable – is done correctly. There are others.)

    But in general law actions are about minimizing harm, almost never about adding good.

  43. Paul E. "Marbux" Merrell says:

    I think likely more to this negotiation than has been reported.

    The City may have an insurer who's potentially on the hook up to the policy limits plus the price of providing a defense through at least the trial court stage. If there is such an insurer, it's undoubtedly involved in the negotiations, at least indirectly through the City's lawyer. The Mayor may also have insurance that arguably provides some coverage; if so, that insurer is likely participating albeit indirectly through the Mayor's attorney.

    The City has a strong further interest not discussed in Ken's article in that if the case goes to trial and the City is found liable, any facts necessarily decided by the jury become indisputable in a later case brought by other plaintiffs, via the principles of offensive non-mutual collateral estoppel. The City wants a settlement that requires dismissal and specifically acknowledges the City has admitted neither fault nor liability.

    It is also more than merely conceivable that attorneys are also involved in the negotiation, representing other women who claim to be victims of the Mayor's alleged sexual harassment but have not yet filed suit. Everyone involved on the defense end of the bench and their indemnitors has a strong incentive to gain a settlement that resolves all such claims. Otherwise, the deal to be made between the City and the Mayor would have a relatively huge wild card involved, the potential liability to the other claimants.

    The existence of actual or potential claims by others is very strong negotiating leverage for the plaintiff's lawyer. The refusal to settle for an offered amount carries an implicit threat to seek findings that will all but foreclose a defense on the merits in later related actions via collateral estoppel; it is not a factor to be ignored in the present negotiation.

    Unnamed party secondary liability is another factor that a plaintiff's lawyer in a civil damages suit needs to keep in mind if it exists. Under every state's law that I've prosecuted damages cases (quite a few), the plaintiff in a damages suit is entitled to learn in discovery the extent of defendants' coverage by any insurer or other indemnitor who has a dog in the fight. See e.g., Fed R. Civ. P. 26(a)(1)(A)(iv) (mandatory initial disclosure of "any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.")

    Insurers exclude intentional wrongs akin to what Ken quotes from the state statute; otherwise they would risk co-conspirator or other vicarious liability. The defendant in such an action either knows or should know that if a judgment is entered finding that the wrong was intentional, the insurer is very likely to suddenly vanish and will cover neither the cost of an appeal nor any portion of the damage award.

    But indemnitors who refuse to provide a defense in many jurisdictions are exposed to liability to the indemnified not only in compensatory damages but can also be eligible for liability under a punitive damages theory. (I collaborated on a major case once with a Mississippi lawyer whose practice was built on "bad faith" punitive damages suits against insurance companies who declined coverage; the Mississippi courts regulated the insurance industry that way until the U.S. Supreme Court limited punitive damages to a low multiple of compensatory damages. Prior to that, the Mississippi Supreme Court had upheld punitive awards as high as 1.8 per cent of an insurance company's net worth.)

    Moreover, in a later case to sort out the indemnitor's liability for refusing to provide a defense, the relevance rule that prohibits evidence that the defendant is insured and the extent of that coverage does not apply. The indemnitor will be a party in its own name and if it's an insurance company or otherwise perceived as having deep pockets, jurors may be unsympathetic to the indemnitor. This factor puts pressure on insurance companies to provide a defense until there is a judgment that the defendant's misconduct was intentional in cases where an intentional wrong is alleged in the complaint.

    At the same time, the legal standard in a follow-on case between the settling defendant and an indemnitor who had refused to provide a defense is extremely favorable to the the plaintiff who had settled the underlying action, who need not prove either that the plaintiff in the underlying action would have been likely to prevail or that the amount of the compensation the indemnified agreed to pay the prior plaintiff damages is an amount that approximates what the court would awarded had the underlying case been litigated to a conclusion.

    So the defendant has a degree of leverage with the indemnitor under a threat to settle for an amount equal to the extent of the indemnitor's coverage (a settlement which does not require the indemnitor's authorization in any event). The more the extent of the coverage exceeds what the indemnitor regards as its likely maximum exposure if the case goes to trial, the greater the defendant's leverage with the indemnitor by threatening to settle for the coverage limit.

    Such factors as those discussed above often result in settlement negotiations where everyone with a financial stake in the case's ultimate resolution participates, some of whom may not be formal parties in the case.

    I think it likely that the plaintiff's lawyer is participating in the negotiation discussed in Ken's article. Neither the City's nor the Mayor's liability to each other is involved in the present case and is in no way affected by side deals between the Mayor and the City. That deal only comes to the fore in a subsequent action between the City and the Mayor for contribution or indemnity, unless the Mayor or the City has named the other as a third-party defendant under a contribution or indemnity theory, or the plaintiff is a party to the deal struck between the City and the Mayor.

    Since there's been no mention in the news coverage of either the Mayor or the City cross-claiming against the other, one may reasonably infer a strong likelihood that the plaintiff is involved in the negotiation between the City and the Mayor, with all three parties having a strong interest in making a deal. But the City and the Mayor, because of the collateral estoppel risk, have an even stronger interest in a deal that not only dismisses the sexual harassment case but also admits neither fault nor liability.

    Furthermore, the City and the Mayor also have an incentive to concurrently cap their liability with those who have made related claims but have not yet filed suit. So I think it not unlikely that other potential plaintiffs' attorneys are also participating in the negotiation.

    A negotiation involving only the Mayor and the City simply makes no sense to me in the present situation.

  44. Richard says:

    Sorry–I did mean City. I found a 2010 report indicating the city's self-insured retention was 4 million dollars, with pool excess coverage up to 50 million. The claimant's attorneys almost certainly already know the city's current situation as it is a matter of public record. Generally in California, the public entity has considerably more control over decisions in a pool setting than when dealing with an insurance company. Punitive damages aren't available against the public entities in California.

  45. Jason says:

    (delurks)

    As a San Diegan, I think it's safe to say, no matter who wins, we all lose.

    Kind of like with the Chargers.

  46. Allen says:

    I must admit it is kind of like the Chargers.

    I had season tickets for 9 years, when finally a Superbowl is going to be played there. Sad lonely seasons they were.

    "If you've had your season tickets for more than 5 years you will get your seat."

    "Well we're going to pick 10% of longtime season ticket holders by a lottery system and they will get their seats."

    "Fuck you, pay the going market rate if you want a seat."

    "Hey, we've noticed you didn't renew your season tickets what's the problem?"

  47. Anony Mouse says:

    @Malc

    Part of the fun is that San Diego doesn't have a mechanism for impeaching the mayor.

    Wait, what? How can they not? I can see not having a mechanism for a recall election, but I can't fathom how they couldn't have one for impeachment.

    I mean, he could go on a murder spree and be sitting on death row and still be mayor without a recall election (which he could theoretically win)?

  48. damon says:

    Smart business decision or not I'd not agree to it.

    Let the gov't go to each plantiff and agree to a side deal. Don't sue us, we'll back you in your suit against the mayor.

    Fire the mayor.

    Invite plantiffs to tar and feather him.

    Done.

  49. MaxCat says:

    Allen: You can blame the Chargers or whomever you want but the Ticket sales for the SuperBowl are controlled by the NFL and not by the local team. As a Chargers season ticket holder since the 80s I know for a fact the Chargers (as an organization) never promised any season ticket holders tickets to the SuperBowl held in San Diego (not withstanding a sales manager lying – which unfortunately does occur).

    AnonyMouse: There is no method of impeaching the Mayor but if convicted of a felony he would be removed from office.

    Damon: Okay, let’s throw out due process and the Constitution. All accusations will now be taken as fact. There will be no trials to determine guilt or innocence. All those simply claiming to be victims will be allowed whatever method of revenge they choose. Cruel and unusual punishment will be perfectly fine. Under your rules, damon, how long until you personally are hanging from a tree branch with your neck snapped from your own “perfectly legal” lynching?

  50. gramps says:

    So how does a city protect itself when a person with known, even demonstrated, proclivity to engage in Filner-like behavior gets elected to office? Unlike normal employee positions, the personnel department has no option to not hire, or to dismiss for violation of policy or law when the predicted activity occurs. Example would be the election a Bill Clinton or Anthony Weiner to replace this incumbent. Or, since the cash for settlements comes from the voters who elected the person in the first place, it it just considered to be "on them"?

  51. melK says:

    and be sitting on death row and still be mayor without a recall election (which he could theoretically win)?

    The Lost Continent, by Terry Pratchett, has mention of this. … we throw them in jail when they get elected. It saves time.

  52. damon says:

    @MaxCat,

    I’m not aware of any criminal charges. Are there any? I’m talking civil suits.
    A good attorney can find a way to fire someone and it doesn't even have to be about his alleged harassment. This guy’s done something that can get him put on “admin leave” or fired. If actually not so, stay out of the way of the people. A good tar and feathering would of course be composed of his constituents. If there was enough of them to form a mob, it's the same a democracy. Nothing different than a recall petition.

    And of course my tongue is firmly in my cheek. No seriously, we should have more tar and feathering of politicians.

  53. Richard says:

    MaxCat: San Diego is a charter city which specifically provides for a strong mayor form of governance. The Mayor of San Diego has the power to veto many types of actions by the City Council. There isn't anyone or any body in a position of authority over him who can put him on administrative leave or fire him.

  54. Kenton A. Hoover says:

    Perhaps San Diego can just argue that the legal representation is job compensation and therefore taxable? Or if not deduct the amount against his other compensation?

  55. MaxCat says:

    Damon: I’m sorry but to me your post reads as if you are advocating that we throw out laws and the Constitution and actually cause someone bodily harm because he has simply been accused of wrong doing that you don’t like. There is no proof (at this time) that he has done anything wrong to a level that would amount to cause to remove him from office – no court decisions, no jury decision, nothing. He has simply been accused of wrongdoing and you think he should be “tar and feathered.” My point is that if that’s the way you want things to be run, the first thing that will happen is someone will accuse you of some wrong doing, possibly far worse, and something far worse will happen to you. It isn’t even a slippery slope. It is just that simple. You are wrong. What you advocate is wrong. In this country we are supposed to have a Constitution and laws that we follow. That’s what most of the writing on this site is about – complaints about those laws and the constitution not be followed by the government. Well, the people are the government and if you have any complaints about the government not following due process start by looking in the mirror. That’s where the problem starts – with people like you who are willing to throw out the law and the Constitution when it comes to people or politicians you don’t like. Why do you expect “The Government” to follow the law or Constitution when you don’t want to follow it either? And please, please, please think about this: What makes this country so great is that people like you – people that are advocating that we throw out the Constitution and the rule of law, people that are just flat, absolutely wrong are just as absolutely, unquestionably allowed to advocate such stupid, thoughtless positions. It is exactly what this country is supposed to be all about. Also, go study some history, you’ll find that people that advocate throwing out the law, like you seem to be, are usually the first against the wall when the rule of law is thrown out.

    Richard: Yes, San Diego is a charter city and since 2004 has had a strong-mayor form of government. In addition to not being re-elected or termed out or simply choosing not to run for re-election, the Mayor of San Diego can leave office due to death (for example, Percy J. Benbough), being convicted of a felony (for example, Roger Hedgecock), resignation (for example, Dick Murphy), or through recall (no examples I can think of). The power of Recall is important as I would disagree about there not being any body in a position of authority over the Mayor that can “fire” him – the people are the Mayor’s “boss” and can “fire” him at any time through the power of recall. Also, being accused or charged with a felony is not sufficient grounds for removal from office; one must be convicted; if you’re not convicted you’re not removed from office (for example, Frank Curran). Personally, I’m not advocating one way or the other for Filner to be removed or to stay. I live in San Diego County but not in the City of San Diego. I have met Bob Filner on several occasions and always found him to be a nice, helpful, caring person. I voted for him when he was my representative to congress. I do strongly object to the way many people and the media portray accusations as fact. I also find it objectionable when people complain about the government (or specific agencies of the government or specific employees of the government or elected officials) not following the law or violating people’s rights and then advocate not following the law or violating their rights as a solution. My original question was actually fairly simple: Could the City Attorney and/or who ever else that was negotiating Filner’s resignation have looked at the situation and judged that the odds of plaintiff’s prevailing in court was low enough that it was likely that Filner would prevail at trial and a subsequent suit by Filner against the city for legal fees would prevail, therefore they made the decision to accept responsibility for the fees to start with simply as a measure to get what they really wanted – Filner to leave office?

  1. August 28, 2013

    […] "…Because it's leverage in negotiating a more favorable sex-harassment settlement." [Tim Noah] More: Ken at Popehat. […]