Should the Taxpayers of San Diego Pay Filner's Legal Fees in His Sexual Harassment Case?

Should the Taxpayers of San Diego Pay Filner's Legal Fees in His Sexual Harassment Case?

 Chutzpah is "that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he's an orphan."

(Dang, Leo Rosten, you were good!)

Well, anyway, that brings us to Mayor Bob Filner of San Diego, California. Home of Ron Burgundy and Veronica Corningstone.

Now that I think about that -- uh-oh.

I almost missed the Filner story because I've been so distracted by Anthony Weiner, poor Huma (yes, I feel sorry for Huma -- wanna make something out of it?), and the innocent and demure Sydney Leathers.

Somewhere in the background I was vaguely aware that some big-city mayor and former Congressman in California had been caught allegedly hitting on just about every woman he's ever met, but I didn't know much about the guy, and California's 3,000 miles away, and out of sight out of mind (just kidding) . . .

. . . until I saw that his attorney told the City of San Diego, which is being sued because of the Mayor's (alleged) shenanigans, that the City (that is, the taxpayers of San Diego) should pay his attorneys' fees because he never got sexual harassment training.

Is this chutzpah, or what? The guy (allegedly) hits on at least eight women over the past few years and has been sued by one, and the poor City has also been dragged into it, even though he's an elected official and they probably didn't even want him didn't hire him, and the City has to pay for his attorney? Shouldn't it be the other way around?

UPDATE: It's now up to nine women, and the ninth is a Marilyn Monroe impersonator!

The City Council has unanimously voted -- twice -- to tell him to pound sand. Good for them.

At the same time, I suspect his lawyer is correct and that the City will get stuck with his tab as well as its own -- either now, or later. Here's why. (Readers from California, please feel free to join the discussion if you think I have this wrong.)

1. California law requires that employers conduct harassment training for employees in management positions. Out here in the sticks (most states east of Needles), if you don't provide the training and somebody messes up, you have to suffer the consequences. But if you don't get a harassment claim, then it's pretty much no harm, no foul. (Not that I'm recommending that, of course -- you should have regular harassment training regardless of your location. But you must have it in California, as well as in some other states.) According to the Mayor's lawyer, Filner was scheduled to have harassment training, but the trainer "unilaterally cancelled" the session and never rescheduled it. (Was she female? If so, was she afraid?) This could be a problem for the City.

UPDATE: Now the City says that it was Filner's office who cancelled the training because he was "too busy." Too busy doing what, I wonder? (The blog posts write themselves!)

2. As the Mayor, he is the City. It's sort of like when the CEO of the company is a lecher. Yes, you can take it to the Board of Directors, but it's really tough for a company to escape liability in that kind of situation. Who's gonna squeal on the CEO? What city employee is gonna squeal on the Mayor? The plaintiff, Irene McCormack Jackson, quit her job as Filner's spokeswoman* and then sued, which makes it a little easier. It probably also helps you keep your nerve when Gloria Allred is your attorney.

*Ms. Jackson is still employed by the City, but in a different department.

3. Filner's lawyer, while perhaps not as high-profile as Ms. Allred, deserves his pay from somebody, because he made some really good points in his letter. First, he pointed out that Filner denies the allegations. Always good to keep in mind in a media frenzy. Second, the attorney played on their sympathy. Poor Filner is 70 years old and has never had harassment training in his life. That would have made all the difference in the world! This guy was a United States Congressman for almost 20 years before becoming mayor of San Diego, which explains a lot when you think about it. Third, the attorney pointed out that the city would be strictly (automatically) liable for Filner's harassment if he is found to have harassed. This would not necessarily be the case under Title VII, but it is under the California Fair Employment and Housing Act. Therefore, the attorney said, the city should have a strong interest in making sure Filner had an excellent attorney who was being paid on a regular basis because apparently the only way the City can win is if Filner is cleared. "We all hang together, or we all hang separately," as a randy dude from history once said. (This, in my opinion, was the best argument for telling the City to hold its nose and pay the Mayor's legal fees.)

Individuals get sued in sexual harassment cases all the time. In my experience, it is usually unfair, although I'm sure my friend Donna Ballman will disagree with me. Either the individual had a consensual relationship with the plaintiff, who is now falsely accusing him (could be a "her," but usually it's a "him") of harassment, or the individual is a manager who is being sued because he or she didn't fire the alleged harasser quickly enough to suit the plaintiff. Many times plaintiffs' lawyers add individual defendants to satisfy the personal grudges of their clients, or as a tactic to keep the case out of federal court, or because the plaintiff's lawyer wants a human scapegoat "villain" sitting at the defendant's table at the trial.

In these situations, we almost always recommend that the corporate client be a "united front" with the unlucky individual who has been sued, and that the company pay for the individual defendant's legal fees, as well as 100 percent of any settlement or judgment. (We don't recommend it when the individual is the accused harasser, but many times the company chooses to stand by him as well if they think he's been set up.)

On the other hand, if the individual is an alleged Filner, or if the individual materially violated the harassment policy or training (for example, by sitting on a complaint or retaliating against the victim), we would recommend requiring the individual to get his or her own attorney, and we wouldn't pay. But, since we're not in California, we have a shot at getting the company dismissed from the lawsuit even if the individual is found liable. Apparently they don't have this option in California.

Whether you're in California or not, one of your best ways to prevent sexual harassment claims and defend your company is to have regular, effective training for your employees -- and especially your supervisors and managers. When did you last have your harassment training? Better get it done!

Visit the Employment and Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment law firm Constangy, Brooks & Smith, LLP.

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