City Likely Liable for Possible Filner Lawsuits

Mayor Bob Filner won’t be the only one on the hook if women who accuse him of sexual harassment file lawsuits.

The city is likely to be hit with hefty legal bills.

As mayor, Filner interacts with dozens of city employees and residents each week, and three of the mayor’s former allies suggested Monday that some may pursue sexual harassment claims against him.

Attorneys who specialize in employment and personal injury law say any legal claims that reflect those contacts will probably also be delivered to the city, meaning taxpayers could pay thousands or perhaps even millions of dollars for attorneys and possible settlements.

“If there are claims filed, it’s an expensive and time-consuming process for everyone. There’s just no getting around that,” said Benjamin Bunn, an attorney who has squared off against the city in several civil cases.

And the city will be liable even if Filner resigns or is booted from office through a recall.

If lawsuits are filed against the city, they’ll rest on whether Filner’s alleged inappropriate contact came while he was acting within what attorneys refer to as the “course and scope of his duties” as mayor. This could include meetings with constituents, interactions with staffers, public events and more.

At a Monday press conference, three of the mayor’s former supporters outlined instances where they said the mayor behaved inappropriately while acting in his official capacity. They detailed allegations that the mayor inappropriately touched a mayoral staffer, kissed a constituent visiting his office during a Saturday open house at City Hall and groped a former campaign volunteer who met with him to discuss city business after he became mayor.

That doesn’t mean the city will be obligated to defend Filner.

Phillip Kossy, a San Diego-based attorney who specializes in discrimination and harassment litigation, said the City Council has discretion over whether to cover the mayor’s legal bills.

“It’s up to the city to decide whether to provide for the defense and most employers, public and private choose not to provide for a defense if the conduct is sexual harassment and is unlawful as a matter of state or federal law,” he said.

Filner told KUSI Monday he’s hired employment law attorney Harvey Berger to represent him. He didn’t rule out asking the City Council to help pay for his attorney.

But a City Council majority appears unlikely to aid the mayor. Six of the city’s nine City Council members have called on Filner to resign.

And the city attorney, the mayor’s attorney of record per the city charter, may also try to avoid assisting the mayor.

City Attorney Jan Goldsmith has repeatedly battled with Filner and in late February, Goldsmith penned a memo barring his staffers, especially women, from visiting the mayor’s office alone.

Gil Cabrera, former chairman of the city’s ethics commission, said the city charter allows Goldsmith to recuse himself from the case if he has a conflict.

In a Tuesday statement, Goldsmith’s office said the mayor has yet to request legal assistance from the city but that it planned to represent the city if any lawsuits were filed.

Goldsmith hasn’t provided specifics on how he might handle such cases but former City Attorney Mike Aguirre said the City Council may retain an independent attorney or even a consultant to review the allegations against Filner and defend the city against any legal claims that result.

Aguirre said he hopes the city will argue it shouldn’t be liable for Filner’s alleged misbehavior.

“The taxpayers are the innocent parties,” Aguirre said. “They are having to undergo the whole hassle of their city going through these difficult times.”

The mayor has said he expects he’ll be cleared should accusers file complaints or pursue civil, or even criminal, cases against him.

“As a citizen of this country, I also expect – and am entitled to – due process, and the opportunity to respond in a fair and impartial venue to specific allegations,” he said in a Monday statement. “I do not believe I am guilty of sexual harassment, and I believe a full presentation of the facts will vindicate me.”

Environmental attorney Marco Gonzalez, one of three former allies who have repeatedly called for Filner’s resignation, claims the mayor may have already incriminated himself.

In a recorded statement released last week, Filner acknowledged he has mistreated and intimidated women. He also said he planned to participate in sexual harassment training.

At a Monday press conference, Gonzalez singled out a passage in the city’s Equal Employment Opportunity Policy that defines sexual harassment as a “form of harassment that creates an intimidating, hostile, or offensive working environment.”

“For purposes of the claim that will come forward and potentially the lawsuits, the mayor has already admitted violating the sexual harassment policy,” Gonzalez said.

Bob Levy, a San Diego-based employment law attorney, said those statements alone aren’t enough to ensure a hefty settlement for an accuser but could complicate matters if the mayor later denies he behaved inappropriately.

“It’s going to be hard for him to explain away those statements in a credible manner,” Levy said.

For their part, city officials are already taking steps to lessen potential liabilities.

Any actions they take now that the harassment allegations have been aired will be crucial in any court case, attorneys say.

If an accuser can prove the city was aware of the allegations and failed to address them, legal payouts could increase significantly.

Last week, staffers received copies of the city’s sexual harassment policies in their email inbox at the city attorney’s request. The emails emphasized the city’s 100 percent response policy on claims of discrimination, harassment and retaliation and the need for every city employee to help enforce the city’s rules.

City Council President Todd Gloria also sent a memo to new interim Chief Operating Officer Walt Ekard requesting that “alternative work space options” be offered to mayor’s office employees and that city staff be directed to retain any documents that may be relevant to harassment allegations.

And Filner has restructured his administration in a way that all but ensures he’ll have less direct contact with staffers.

Still, Gonzalez,  former Councilwoman Donna Frye and attorney Cory Briggs vowed Monday to do whatever it takes to address the allegations against Filner.

“Regardless of what the mayor does from here on out, short of resigning, we will do what we need to do – whether it is criminal, civil or administrative – to ensure that this gets resolved,” Gonzalez said.

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