Filner Lawyer: City Owes Legal Bills Because of Training Failure

Filner Lawyer: City Owes Legal Bills Because of Training Failure

Photo by Sam Hodgson

Mayor Bob Filner

San Diego Mayor Bob Filner’s lawyer argues the city should pay his legal fees in the sexual harassment lawsuit because Filner never received sexual harassment training required under the law.

California law requires all new managers to receive sexual harassment training within six months of being hired.

“The city failed to provide such training to Mayor Filner,” Filner’s lawyer Harvey Berger wrote in a July 29 letter to City Attorney Jan Goldsmith. “In fact, it is my understanding that such training was scheduled, but the trainer for the city unilaterally cancelled, and never re-scheduled such training for the Mayor (and others.) Therefore, if there is any liability at all, the city will almost certainly be liable for ‘failing to prevent harassment’ under Government Code Section 12940(k).”

Berger admits that the mayor never received any sexual harassment training while serving in Congress or in previous San Diego elected office.

“While, to paraphrase Bob Dylan, many might argue that ‘you don’t need a weatherperson to tell you which way the wind blows,’ and an adult male should not need sexual harassment training, I would point out that in his decades of public service for the people of San Diego as a U.S. Representative, Mayor Filner has never received sexual harassment training,” Berger writes. “This is not an excuse for any inappropriate behavior which may have occurred, but having conducted sexual harassment training many times over the years, I have learned that many – if not most- people do not know what is and what is not illegal sexual harassment under California law. There is a very, very good reason for mandatory sexual harassment training; if nothing else it makes people think about the subject, and how they interact with their fellow employees. Had the City provided mandatory sexual harassment training to Mayor Filner, [former spokeswoman] Irene McCormack Jackson may never have brought her lawsuit.”

Filner did complete sexual harassment training once the scandal broke, per U-T San Diego.

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Liam Dillon

Liam Dillon

Liam Dillon is senior reporter and assistant editor for Voice of San Diego. He leads VOSD’s investigations and writes about how regular people interact with local government. What should he write about next? Please contact him directly at liam.dillon@voiceofsandiego.org or 619.550.5663.

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42 comments
Mark Giffin
Mark Giffin subscribermember

William. Its an H.R. responsibility. At this juncture Filners dodge on the training strategic?

sdnative1964
sdnative1964

Even Atty Berger is shaking his head at this attempt at a defense. I feel sorry for that poor bastard having sworn an oath to appropriately and vigorously defend a client as slimy as Filthy Bob. Dollars to doughnuts he won't even shake the perv's hand when they meet. Slobbering Bob knows right from wrong, but having gotten away with this behavior for so long in congress, and every other level of government, without repercussion obviously emboldened him to continue at the municipal level. Hey Bob, please try that behavior with my daughter. I'm sure I'll be acquitted of any and all charges when I beat you to within an inch of your pathetic life.

Eva Vargas
Eva Vargas

The way he got out of doing his sexual harrassment obligation in Congress, he would have found a way to get out of this, and how do we know that he didn't institigate or said "NO!" I don't have to; the failure of the trainer (was she a woman) to show or fail to arrange later dates. This guy was used to do doing things on a National level, too bad for him that he is the city mayor (too small to get away with anything that personal) LoL A good slap on the face, a curse word or alternative words, creating a seen has always worked for me. What is the stuff about being afraid of loosing their jobs, if their powerful people, well . . . I didn't/wasn't ever afraid to loose my job didn't even think about it I was sooo mad. It stopped, that was the point, and the one time it didn't well, that is what HR is for, the next being the police department.

Eva Vargas
Eva Vargas subscriber

The way he got out of doing his sexual harrassment obligation in Congress, he would have found a way to get out of this, and how do we know that he didn't institigate or said "NO!" I don't have to; the failure of the trainer (was she a woman) to show or fail to arrange later dates. This guy was used to do doing things on a National level, too bad for him that he is the city mayor (too small to get away with anything that personal) LoL A good slap on the face, a curse word or alternative words, creating a seen has always worked for me. What is the stuff about being afraid of loosing their jobs, if their powerful people, well . . . I didn't/wasn't ever afraid to loose my job didn't even think about it I was sooo mad. It stopped, that was the point, and the one time it didn't well, that is what HR is for, the next being the police department.

Rachel Laing
Rachel Laing

As absurd as that Harvey Berger letter seems to me, I guess it was successful in changing the conversation from whether the mayor engaged in predatory abuses of power toward women to "Did Filner ever complete sexual training, and if not, whose fault was it?" The simple fact is, anyone who needs to be told that it's impermissible to tell a colleague to work without underwear, kiss her without her permission and despite her protests, or regularly say sexually charged things to her is unlikely to heed the admonitions in a sexual harassment training.

Rachel Laing
Rachel Laing subscribermember

As absurd as that Harvey Berger letter seems to me, I guess it was successful in changing the conversation from whether the mayor engaged in predatory abuses of power toward women to "Did Filner ever complete sexual training, and if not, whose fault was it?" The simple fact is, anyone who needs to be told that it's impermissible to tell a colleague to work without underwear, kiss her without her permission and despite her protests, or regularly say sexually charged things to her is unlikely to heed the admonitions in a sexual harassment training.

Mike1185
Mike1185

I think it is also important to remember how much this city has spent in the past on defending it's embattled politicians. City of San Diego spent 2.2 million dollars in defense of Scott Peters and company via the Kroll Investigation. Always remember. Do we really want to be on the hook for another politicians wayward ways?

SueNami
SueNami

For what it's worth, VOSD may want to look into whether Bob Filner has a personal insurance policy, such as a homeowner or umbrella policy, that may at least provide him with a legal defense, but perhaps not for indemnity, i.e., any awarded damages, for a sexual harassment lawsuit. E.g., it may be such an insurance policy that is now paying for Harvey Berger, but the insurer understandably is trying to get the City to pay for this legal defense instead.

Matthew Hoy
Matthew Hoy

We all need to look on the bright side. The good news is that the city apparently did train Filner not to crap in his hand and walk around City Hall asking people to sniff his excrement. He hasn't been accused of doing that, ergo, the city trained him to not do that. On a more serious note: WTF? He has to be trained--at the age of 70--to be a civil human being?

Don Wood
Don Wood

Is the mayor's attorney's assertion true or false? Yes or no?

Don Wood
Don Wood subscriber

Is the mayor's attorney's assertion true or false? Yes or no?

Mark Giffin
Mark Giffin subscribermember

No kidding, Goldsmith could of used his psychic superpowers to see into the future of the absolute necessity of Filner needing sexual harassment training and making it the highest priority of his office.

Bill Bradshaw
Bill Bradshaw

I'm not a lawyer but I play one writing letters like this. Betcha the city ends up paying. Not only are judges to whom this will make perfect sense, but given Filner's known proclivities, everyone should have said "Train this guy, NOW", the day he took office. There's a reason everything you buy has a ton of idiotic "warnings".......it's called liberal judges.

Bill Bradshaw
Bill Bradshaw subscribermember

I'm not a lawyer but I play one writing letters like this. Betcha the city ends up paying. Not only are judges to whom this will make perfect sense, but given Filner's known proclivities, everyone should have said "Train this guy, NOW", the day he took office. There's a reason everything you buy has a ton of idiotic "warnings".......it's called liberal judges.

Allen Hemphill
Allen Hemphill

We must laugh to keep from crying! Typical lawyerly effort to throw everything on the wall, and hope something (anything?) sticks. "My client didn't do it, but if he did do it then it was because of (a)(b)(c), and a failure of the city to (d)(e)(f). If those are found by the Court to be immaterial, or inconsistent, then my client suffers from (sex addiction)(brain tumor)(peripheral neurotically(ingrown toenails). You might think that someone who has been fighting for "equal rights" for decades might know something about equal rights.

Allen Hemphill
Allen Hemphill subscribermember

We must laugh to keep from crying! Typical lawyerly effort to throw everything on the wall, and hope something (anything?) sticks. "My client didn't do it, but if he did do it then it was because of (a)(b)(c), and a failure of the city to (d)(e)(f). If those are found by the Court to be immaterial, or inconsistent, then my client suffers from (sex addiction)(brain tumor)(peripheral neurotically(ingrown toenails). You might think that someone who has been fighting for "equal rights" for decades might know something about equal rights.

Diogenes
Diogenes

Goldsmith should have to pay Filner's attorneys fees for failure to advise Filner about the necessity of elimination of bias/sexual harassment. Lawyers and judges must go through such training.. Goldsmith makes one mistake after the next.

Mark Giffin
Mark Giffin

12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:....... K. (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

Mark Giffin
Mark Giffin subscribermember

12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:....... K. (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

Jim Jones
Jim Jones

The city allowed it to go on. Even when they released a memo that no one was allowed to meet with Filner alone, they put in no real enforcement and did not educate as to the reasons. The city is culpable, as are several individuals who knew and kept quiet.

Jim Jones
Jim Jones subscriber

The city allowed it to go on. Even when they released a memo that no one was allowed to meet with Filner alone, they put in no real enforcement and did not educate as to the reasons. The city is culpable, as are several individuals who knew and kept quiet.

Jon Graves
Jon Graves

I don't normally comment, but this is getting ridiculous. The man's an embarrassment to men, to the mayor's office, and to the city. Where can we sign the recall application?

Ruthie Kelly
Ruthie Kelly

Based on Filner's 20 year service in Congress and his attendance record there, I'm guessing such training WAS scheduled and available for him and he just didn't bother to show up.

Ruthie Kelly
Ruthie Kelly subscriber

Based on Filner's 20 year service in Congress and his attendance record there, I'm guessing such training WAS scheduled and available for him and he just didn't bother to show up.

Jon Graves
Jon Graves

I don't normally comment, but this is getting ridiculous. The man's an embarrassment to men, to the mayor's office, and to the city. Where can we sign the recall application?Filner Lawyer: City Owes Legal Bills Because of Training Failurehttp://voiceofsandiego.org/2013/07/31/filner-lawyer-city-owes-legal-bills-because-of-training-failure/#commentsSan Diego Mayor Bob Filner's lawyer argues the city should pay his legal fees in the sexual harassment lawsuit because Filner never received sexual harassment training required under the law. California law requires all new managers to receive sexual...

Ryan sweeney
Ryan sweeney

ohhhhhh myyyyyy gawwwwwwddddd... listen up people of San Diego... this is the fearless (or should it be spineless) leader that was voted in! I can not even believe that this slimy excuse for a mayor is pulling this card! better yet, i'd love to see the roots of how he has escaped this sexual harassment training all along. i'd put money on him, the king, being the one who cancelled training without re-scheduling. it certainly would follow his usual habits of thinking he's above the law... that is until now when he wants us tax payers to be liable for his defense bills. What a piece o trash.

Ryan sweeney
Ryan sweeney subscriber

ohhhhhh myyyyyy gawwwwwwddddd... listen up people of San Diego... this is the fearless (or should it be spineless) leader that was voted in! I can not even believe that this slimy excuse for a mayor is pulling this card! better yet, i'd love to see the roots of how he has escaped this sexual harassment training all along. i'd put money on him, the king, being the one who cancelled training without re-scheduling. it certainly would follow his usual habits of thinking he's above the law... that is until now when he wants us tax payers to be liable for his defense bills. What a piece o trash.

62miles
62miles

Lee Burdick's performance on MSNBC was an embarrassment to our City. Lee Burdick sat on board of directors and chair of Program Committee for the Forum for Women Entrepreneurs. Not to mention she was a Port Commissioner. She's a non-performer in law and sits on commissions and committees to look important. #inoverherhead

62miles
62miles subscriber

Lee Burdick's performance on MSNBC was an embarrassment to our City. Lee Burdick sat on board of directors and chair of Program Committee for the Forum for Women Entrepreneurs. Not to mention she was a Port Commissioner. She's a non-performer in law and sits on commissions and committees to look important. #inoverherhead

Adam McLane
Adam McLane

He's going to go with that? Seriously? He thinks a judge is going to hear that? Then again, we're talking about a guy who thinks its OK to solicit anything walking for sex. Let's all just agree that Filner isn't our mayor anymore. After all, we didn't receive an official notification of election results in the mail.

Adam McLane
Adam McLane subscriber

He's going to go with that? Seriously? He thinks a judge is going to hear that? Then again, we're talking about a guy who thinks its OK to solicit anything walking for sex. Let's all just agree that Filner isn't our mayor anymore. After all, we didn't receive an official notification of election results in the mail.

Lisa Campbell
Lisa Campbell

This is the STUPIDEST thing I have ever heard. He knew what he was doing was wrong.

Joe Jones
Joe Jones

False. He is making a causal link between alleged lack of training and the mayor's actions. The key sentence making the argument--"most people do not know what is and is not legal." Utter nonsense, as the mayor's alleged behavior is clearly waaay beyond any "gray area" in 1) the law, 2) a reasonable person's perception of the law, and 3) standards and practices clearly identified and followed in the workplace. The argument is a non-starter and will be rejected.

Joe Jones
Joe Jones subscriber

False. He is making a causal link between alleged lack of training and the mayor's actions. The key sentence making the argument--"most people do not know what is and is not legal." Utter nonsense, as the mayor's alleged behavior is clearly waaay beyond any "gray area" in 1) the law, 2) a reasonable person's perception of the law, and 3) standards and practices clearly identified and followed in the workplace. The argument is a non-starter and will be rejected.

sdnative1964
sdnative1964

Diogenes, I'm not quite sure but you may have managed to post the most asinine comment in the history of the internet. How did someone of your obviously limited mental capacity even manage to log on to a computer? Idiots of your ilk make my head hurt.

Mike1185
Mike1185

Diogenes: Not sure what the City Attorney has to do with anything. Their office has nothing to do with babysitting the Mayor and making sure he takes his sexual harassment training. That's another department, like Human Resources or something. What I do know is that the training could be done any time. It's self administered. He could have elected to do it at any time behind the comfort of his own computer. However, to paraphrase our fine Mayor, he can do "whatever he wants."

Diogenes
Diogenes

Mark, The city has a mandatory duty to ensure that the training takes place. The exact harm to be avoided took place, you believe that the harm was unforseeable? Governmental tort liability law is very clear. This is negligence per se. Causation is onten presumed along with negligence. You must think you know more that Filner's lawyer.

Mark Giffin
Mark Giffin

No kidding, Goldsmith could of used his psychic superpowers to see into the future of the absolute necessity of Filner needing sexual harassment training and making it the highest priority of his office.

Diogenes
Diogenes

Lisa, We must assume that Filner knew right from wrong or he would be excused under the concept of insanity. OK, but only if he did not know the nature of his act. The traing is a constant reminder. It is very helpful for those people to be reminded in the training, the city failed in a mandatory duty to women and Filner. McCormack has a case against the city and Filner has a basis for his attorney fee request.

Mark Giffin
Mark Giffin

William. Its an H.R. responsibility. At this juncture Filners dodge on the training strategic?