The Trouble With a Filner ‘Deal’

The Trouble With a Filner ‘Deal’

File photos of Duffy, Goldsmith, Dumanis by Sam Hodgson; Harris photo via attorney general's office

Left to right: U.S. Attorney Laura Duffy, City Attorney Jan Goldsmith, state Attorney General Kamala Harris, District Bonnie Dumanis

None of the ways to kick San Diego Mayor Bob Filner out of office is easy.

A whole lot of people have to sign a recall petition to get it on the ballot. A Grand Jury investigation would be unprecedented. And despite all the sexual harassment and quid-pro-quo allegations surrounding Filner, no one’s talking about him going to prison.

So that leaves Filner stepping down of his own accord. Since no amount of daily shaming in the local and national media and abandonment by his allies appears to be moving him, the theory is that Filner would only agree to resign as part of a deal to resolve his legal woes. City Attorney Jan Goldsmith has called the idea giving Filner “an out.”

“It’s the biggest, and perhaps only, negotiating point [Filner] has right now,” said attorney and former city Ethics Committee Chairman Gil Cabrera.

But getting Filner to trade away his office won’t be simple, either.

A kind of global settlement to Filner’s problems would require an intricate needle-threading between the web of agencies and personalities involved in the case, at least some of which would have competing interests and timetables.

City, county, state and federal officials as well as a celebrity attorney would all have to sign off. It would mean criminal charges against Filner would have to be serious enough to call for some punishment, but not so serious that prosecutors feel they need to push for more. And if Filner goes, he might still leave himself open to lawsuits from his time in office without his mayorship to bargain away.

“Every time you add another layer, it makes it more difficult to come to a resolution,” said John Kirby, a criminal defense attorney and former federal prosecutor.

The various legal problems Filner faces make the situation complex enough. The only case currently in court is a sexual harassment lawsuit filed by Filner’s former spokeswoman, Irene McCormack. The San Diego County sheriff’s office has a hotline manned by three staffers to handle criminal complaints of sexual misbehavior by the mayor. Federal investigators are examining pay-to-play deals involving city development projects. Filner also could face legal troubles over a trip to Paris that looks to have violated state gift laws. The severity of each of these cases remains undetermined, as no one has announced criminal charges or an end to ongoing probes.

Photo by Justin Bridle

Photo by Justin Bridle

Gloria Allred (center) and Irene McCormack

Things get even more complicated once you add personalities to the mix. McCormack hired celebrity lawyer Gloria Allred, who’s held multiple press conferences to blast Filner and seems unlikely to go away quietly. The sheriff’s office has said it will turn its investigation over to the state attorney general’s office for prosecution after District Attorney Bonnie Dumanis recused herself. Dumanis ran against Filner for mayor last year and endorsed Filner’s runoff opponent Carl DeMaio. Attorney General Kamala Harris endorsed Filner.

The region’s top federal prosecutor also has a tangled history with the mayor. U.S. Attorney Laura Duffy donated to DeMaio, and was critical of Filner’s behavior in a leaked email. Filner said Duffy should resign over her conduct.

For a deal to happen, someone will have to coordinate the interests of all these agencies and people. Filner’s hired at least three lawyers to help him. One of them, Jerry Coughlan, has defended a stable of local politicos in major cases over the last decade.

On the anti-Filner side, Goldsmith has talked the most about the prospects for a deal. He’s said it’s common in corporate civil suits to secure resignations as part of settlements. But if Goldsmith’s quarterbacking the case, then at least one high-profile local official doesn’t have much confidence in his ability to get it done.

Port Commissioner Bob Nelson, a former Filner confidante who recently sent a letter to the mayor asking him to step down, doesn’t think Goldsmith’s previous experience as a legislator and judge prepares him to negotiate these kinds of big deals. He cited Goldsmith’s recent failures on the $45 million Plaza de Panama plan in Balboa Park and his back-and-forth on whether the mayor could veto port appointments to argue that Goldsmith isn’t up to the task.

“I don’t think he’s doing anything with malice,” Nelson said. “I just think he’s incompetent as a city attorney.”

For its part, Goldsmith’s office didn’t elaborate on any possible settlement talks, but took issue with Nelson.

“Mr. Nelson’s comments show a fundamental lack of understanding of how the process works,” Assistant City Attorney Paul Cooper said. “That said, we have not shared any strategy with Bob Nelson concerning the Filner matter, nor would we.”

Even if all these things get worked out, it’s unlikely anything could be done to prevent more people from filing lawsuits against the mayor once he’s a private citizen. This wildcard of possible future claims against Filner could give him pause before relinquishing his power and leverage.

“I think resignation and global resolution might make that less likely,” said Marco Gonzalez, an attorney who’s represented women who allege Filner mistreated them. “But if I’m sitting in Bob’s seat, I can’t be sure of that.”

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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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17 comments
Judith Swink
Judith Swink subscriber

In the Fox 5 News bit, did no one pick up on Nathan Fletcher's reference to "rape victims"? It's at about 0:30 on the tape.

Judith Swink
Judith Swink subscriber

Mike1185 - Re the Plaza de Panama, Jan Goldsmith personally represented the City of San Diego in the court case about the City Council's violation of the law in approving the Plaza de Panama EIR. He and the Council had ignored warnings of litigation on precisely these grounds from several speakers at the Council hearing last July and he advised the Council that they were on firm legal ground. The judge, as much as he would have preferred not to, ruled in favor of the plaintiff - the City lost and we now have the Plaza de Panama that many many people prefer as the solution to removing fewer than 70 parking spaces & regaining the Plaza as a public space.

David Cohen
David Cohen subscriber

No worries. Our City Attorney fixer will issue a memo stating it was never the intent of the recall procedure to prevent collecting signatures at sporting events before the recall could legally start.

ConcernedSanDiegan
ConcernedSanDiegan

Bob Nelson has no clue what he is talking about, he's a long time Filner supporter who is trying to have his cake and eat it too. He wants to talk about incompetency of the City Attorney? Perhaps he should do some soul searching and realize the only incompetency is Mr. Nelson's inability to judge character. What has Bob Nelson done all these years about Bob Filner and his well known serial harasser behavior? If it were up to Bob Nelson the city would be covering BF's legal fees and coddling him like a baby while they taxpayer's suffer.

Mike1185
Mike1185

Well, seems to me Mr. Nelson is off on a few points... Let's take a journey down Bob Nelson's Revisionist History Lane, shall we? Port vote: The City Attorney's office corrected an error from the disastrous Mike Aguirre era. Bob Nelson's revisionist history would have you believe otherwise. Plaza De Panama: This was a Sanders and Irwin Jacobs deal, not anything to do with the City Attorney. Another jog down Revisionist History Lane. Bob Nelson has no clue what he is talking about, he's a long time Filner supporter who is trying to have his cake and eat it too. He wants to talk about incompetency of the City Attorney? Perhaps he should do some soul searching and realize the only incompetency is his inability to judge character. Come back and let's talk AFTER you call for the Mayor's resignation for his serial sexual harassment problems and NOT just because he's been unable to get the policys you want passed.

Beth Swersie
Beth Swersie subscribermember

Bill - can you tell us more about this?

Bob Nelson
Bob Nelson

Nothing personal, here, Mr. Cooper. I genuinely like Mr. Goldsmith and I have worked well over the years with several attorneys in your office, even during the prior disastrous office holder. And I can confirm that neither you nor any other party or representative of such has discussed with me any aspect of your strategy, or theirs. In contrast to my confessed ignorance, I would note that it wasn't me that ignored (or never read?) Section 79 of the San Diego Unified Port District Act ("Chapter 67 of the State of California Statutes of 1962 Relating to Harbors and Ports"); relevant Attorney General Opinions regarding the powers of city councils versus mayors when one of the parties but not the other is named by the Legislature when it enacts a law; or the California Supreme Court cases that lay behind those AGO's. Because I have sworn an oath to uphold the law in my capacity as a Port Commissioner, I have necessarily read -- and obey -- the governing law in question. Even to an undereducated person such as myself, there was no room for confusion. Mr. Goldsmith's dreadfully wrong advice on the right (not!) of the mayor to veto Port Commissioner appointments played a major part in the rift that opened between the two branches of our city government early this year. The result was that for several months the City of San Diego for the first time in 50 years had only one member on the Port Board instead of three to which we are entitled, while other cities representing only 20% of the District population had a total of four. We are fortunate, indeed, that the character of my colleagues from other cities is such that they acted at all times in the overall interest of the Tidelands Trust, and no advantage was taken, as it might have been in prior times. Despite repeated questions about this faulty opinion, the City Attorney issued multiple memos reiterating his mistake. Since state law, relevant case law, and the opinion of the state's attorney were insufficient to persuade the City Attorney's office that appointment of Port Commissioners is exclusively the right and obligation of the City Council under state law, I am not sure what to think. I do not think it was done for malice or political motive. So, was this based on (A) poor research, or (B) obstinately refusing to admit that the City Attorney's office has been goofing this up for years because that office failed to recognize that an independent state agency (the San Diego Unified Port District) is not controlled by the whim of a local government's lawyer living out Emerson's imprecation, "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines"; or (C) something else. If (C), please educate us. There is a hero in all this, by the way: State Senator Ben Hueso. As former City Council President, the City Attorney's advice never rang true for Mr. Hueso. So, Senator Hueso inquired of the State Legislative Counsel, who made clear what the City Attorney's office should have known all along. I have high regard for all of you in the City Attorney's office who work hard to get it right, even when your boss seems to get it wrong, so please don't take this personally, I do not.

Bob Nelson
Bob Nelson subscribermember

Nothing personal, here, Mr. Cooper. I genuinely like Mr. Goldsmith and I have worked well over the years with several attorneys in your office, even during the prior disastrous office holder. And I can confirm that neither you nor any other party or representative of such has discussed with me any aspect of your strategy, or theirs. In contrast to my confessed ignorance, I would note that it wasn't me that ignored (or never read?) Section 79 of the San Diego Unified Port District Act ("Chapter 67 of the State of California Statutes of 1962 Relating to Harbors and Ports"); relevant Attorney General Opinions regarding the powers of city councils versus mayors when one of the parties but not the other is named by the Legislature when it enacts a law; or the California Supreme Court cases that lay behind those AGO's. Because I have sworn an oath to uphold the law in my capacity as a Port Commissioner, I have necessarily read -- and obey -- the governing law in question. Even to an undereducated person such as myself, there was no room for confusion. Mr. Goldsmith's dreadfully wrong advice on the right (not!) of the mayor to veto Port Commissioner appointments played a major part in the rift that opened between the two branches of our city government early this year. The result was that for several months the City of San Diego for the first time in 50 years had only one member on the Port Board instead of three to which we are entitled, while other cities representing only 20% of the District population had a total of four. We are fortunate, indeed, that the character of my colleagues from other cities is such that they acted at all times in the overall interest of the Tidelands Trust, and no advantage was taken, as it might have been in prior times. Despite repeated questions about this faulty opinion, the City Attorney issued multiple memos reiterating his mistake. Since state law, relevant case law, and the opinion of the state's attorney were insufficient to persuade the City Attorney's office that appointment of Port Commissioners is exclusively the right and obligation of the City Council under state law, I am not sure what to think. I do not think it was done for malice or political motive. So, was this based on (A) poor research, or (B) obstinately refusing to admit that the City Attorney's office has been goofing this up for years because that office failed to recognize that an independent state agency (the San Diego Unified Port District) is not controlled by the whim of a local government's lawyer living out Emerson's imprecation, "A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines"; or (C) something else. If (C), please educate us. There is a hero in all this, by the way: State Senator Ben Hueso. As former City Council President, the City Attorney's advice never rang true for Mr. Hueso. So, Senator Hueso inquired of the State Legislative Counsel, who made clear what the City Attorney's office should have known all along. I have high regard for all of you in the City Attorney's office who work hard to get it right, even when your boss seems to get it wrong, so please don't take this personally, I do not.

Bill Smith
Bill Smith

I noted the other night on the evening news that one of the recall leaders let it slip that the proponents have already passed out petitions and started collecting signatures. The recall is now invalid even before it has started. Good luck!

Judith Swink
Judith Swink

Mike1185 - Re the Plaza de Panama, Jan Goldsmith personally represented the City of San Diego in the court case about the City Council's violation of the law in approving the Plaza de Panama EIR. He and the Council had ignored warnings of litigation on precisely these grounds from several speakers at the Council hearing last July and he advised the Council that they were on firm legal ground. The judge, as much as he would have preferred not to, ruled in favor of the plaintiff - the City lost and we now have the Plaza de Panama that many many people prefer as the solution to removing fewer than 70 parking spaces & regaining the Plaza as a public space.

Judith Swink
Judith Swink

In the Fox 5 News bit, did no one pick up on Nathan Fletcher's reference to "rape victims"? It's at about 0:30 on the tape.

David Cohen
David Cohen

No worries. Our City Attorney fixer will issue a memo stating it was never the intent of the recall procedure to prevent collecting signatures at sporting events before the recall could legally start.

Mike1185
Mike1185

Well, seems to me Mr. Nelson is off on a few points... Let's take a journey down Bob Nelson's Revisionist History Lane, shall we? Port vote: The City Attorney's office corrected an error from the disastrous Mike Aguirre era. Bob Nelson's revisionist history would have you believe otherwise. Plaza De Panama: This was a Sanders and Irwin Jacobs deal, not anything to do with the City Attorney. Another jog down Revisionist History Lane. Bob Nelson has no clue what he is talking about, he's a long time Filner supporter who is trying to have his cake and eat it too. He wants to talk about incompetency of the City Attorney? Perhaps he should do some soul searching and realize the only incompetency is his inability to judge character. Come back and let's talk AFTER you call for the Mayor's resignation for his serial sexual harassment problems and NOT just because he's been unable to get the policys you want passed.

Bill Smith
Bill Smith

It was after the poorly attended rally in the Civic Center Plaza (Tuesday night?), it was a middle age man with dark hair who was running the rally. He realized the significance of what he said almost immediately, but the reporter didn't catch it, they moved on to a new subject. Can't recall the station, likely Cannel 8 or 10.