A media backlash followed the letter recently sent to the City of San Diego by Mayor Bob Filner’s attorney, Harvey Berger. The Union Tribune Editors called Mr. Berger’s argument “ridiculous” because the letter suggested Mr. Filner wasn’t responsible for sexual harassment because he hadn’t received sexual harassment training. But the point of the letter--which appears on page 3 instead of page 1--was to get the City of San Diego to pay for Filner’s legal defense, not to defend Filner’s actions. Mr. Berger did not say San Diego must pay his fees because Filner didn't get sexual harassment training. Berger admitted sexual harassment is outside the course and scope of his employment and doesn't fall within the Gov. Code indemnity provisions and the seminal Sup. Ct. decision (Farmers v. Santa Clara). (Also, Gov. Code section 815.3 makes it clear that elected officials should bear the full fiscal responsibility for their own sexual harassment, leaving the City vulnerable only if Filner does not have the assets to pay). Instead, Berger said San Diego should pay for Filner's defense to limit the City's own exposure. He points out two ways the City is on the hook, so by hanging Filner out to dry, the City is only helping Irene Jackson whack them both. Berger explained the two theories, 1) the City is independently liable because it neglected its duty to train, and 2) the City is strictly liable because Filner was a supervisor (again, 815.3 clouds the law a bit, but when all is said and done, Berger’s point is legally sound). If the City is going to have to pay for Filner's conduct, they should be working together to limit the plaintiff's recovery--it's done all the time in lawsuits where the co-defendants are acting rationally.
We don't have to look too far back to see this makes sense. Just last April, the City of Oceanside got hammered for $1.5 million in a ho hum sexual harassment case brought against the City and one of its police officers. I defended the officer. The City hung him out to dry, like San Diego is doing to Filner. Because the officer was not indemnified, plaintiff agreed to settle with us for $0 on the second day of trial. This benefitted the plaintiff because we were not around to defend the case.
Harvey Berger is making this very point: if Filner doesn't get competent defense, and because of that, the jury hits him hard, the City will be footing the bill. Harvey is saying, "Make a business decision and commence damage control." But, it's falling on deaf ears.
In the bigger picture, the backlash is probably fair because society is better off if public funds are not used to support pigs like Filner. The cost is that victims like Irene Jackson might draw the short straw because their predator is an elected official, making collection of the likely hefty verdict a legal obstacle course, a.k.a., a major hassle. Also, I suspect Harvey Berger will defend Filner regardless of whether the City pays, and even if that makes it more difficult for Mr. Berger to do his job, he is such an excellent attorney that, for him, fighting with one hand tied behind is back is still unfair to the other side.
Daniel Gilleon, of Gilleon Law Firm, is a San Diego sexual harassment attorney. For more information about Daniel Gilleon, please visit www.mglawyers.com
Posted in In the News, Sexual Harassment Tagged bob filner, Dan Gilleon, Daniel Gilleon, gilleon law firm, Harvey Berger, lawsuit, San Diego County, San Diego sexual harassment lawyer