Former San Diego COO: Mayor's Office Canceled Harassment Training
August 1, 2013 1:24 p.m.
Jan Goldsmith, City Attorney, City of San Diego
CAVANAUGH: San Diego City officials have been study the city charter, the municipal code, and city HR policies closely lately. Accusations of sexual harassment against mayor Filner have brought to light some big problems in the city's recall rules and its ability to remove a compromised official from office. Joining me to help clarify, some of the complex legal issues surrounding the mayor's problems is my guest, San Diego City attorney Jan Goldsmith. Welcome to the program.
GOLDSMITH: It's a pleasure to be with you.
CAVANAUGH: Mayor Filner's lawyer says the city should pay for his defense against Irene McCormack's sexual harassment lawsuit because the city failed to provide mayor Filner with timely sexual harassment training. How is your office responding to that assertion?
GOLDSMITH: Well, first of all, Harvey Berger is a great lawyer.
CAVANAUGH: Mayor Filner's lawyer.
GOLDSMITH: Yeah, very good lawyer, and he has to make arguments, and he even has to make arguments that overreach because that's his job. He's an advocate. So we appreciated his comment about the failure apparently of mayor Filner to take harassment training in a timely manner. And we -- our response is it's irrelevant. It really doesn't enter into the equation. Let me explain why. Sexual harassment is a law, a zero-tolerance policy in our city. You may not engage in it. You are implied to have known the law, and if you engage in it and it's proven, you're going to have culpability. The city could have culpability because he's an employee. And so you go to trial, and if it's shown, it's irrelevant whether he took the training or not. There would likely be liability, and the city is responsible for it. That's why we cross-complaint against him. We said if he's responsible, then we want, and we have to pay money because of that, then we upon reimbursement. But taking the training may show a flaw that I've seen, and we all have seen with mayor Filner, that he doesn't seem to care about understanding what the law is. But that doesn't give him an excuse, and it doesn't trigger responsibility on the part of estate to pay his attorney's fees.
CAVANAUGH: Perhaps you could clarify for us what required sexual harassment training at City Hall consists of. Is it an online training feature? Or is it actually some sort of a class?
GOLDSMITH: No, it's online. I've done it twice. You have to do it every two years. I'm up this year, are and it's a pretty lengthy training where you have to go through different slides, and then you take -- there's questions, and you have to answer. If you're wrong, all the buzzers any off and all that. But you only get your certificate if you go through that. And it's all online.
CAVANAUGH: As far as you're concerned, it doesn't matter if the mayor is the one who postponed this training or the city postponed this training. Or are you looking into that?
GOLDSMITH: It might make some difference to mayor Filner because one of the issues at trial will be whether the jury, if they find culpability, will award punitive damages against him. Now, the city is not responsible for punitive damages imposed by a jury for conduct that was malicious or wanton. They may take into consideration if he decided, you know, I'm not going to do that. They may take that. But it won't affect the city at all.
CAVANAUGH: Now, you mentioned that the -- well, let me just clarify that the City Council has denied the mayor's first request that the city pay for his defense. And you just mentioned that the city has cross-sued the mayor in the sexual harassment allegation. Is there any indication how much, if any liability, the city might be exposed to in this lawsuit against the mayor?
GOLDSMITH: No. Not at this point. We're still doing our investigation. I'm very careful to say if he is found culpable. I haven't found him culpable, and neither has a court. We are investigating right now. We have two investigators working on it. We're getting statements, and getting documentation. And we have scheduled a deposition of the mayor to testify under oath. It may have to be changed due to his two-week leave of absence. But from the standpoint of -- we haven't even -- come to that conclusion. In the Court of public opinion, it's a different story. You have to show culpability. And there's another part of this. Irene McCormack Jackson is still an employee of the City of San Diego. And she was transferred to a position that is comparable, and we appreciate her as an employee. We did -- the city acted very appropriately in this, learning of claims, removing her, putting her in a position that is respectful in her field, and then we tried and hopefully it's being implemented a policy that he's not to meet with women alone in city facilities. We're doing everything we can from the city standpoint so that, No. 1, meet our responsibility to our employees, and No. 2, defending the city. Should this go to trial, the jury will hear what steps we took in good faith to try to protect our employees.
CAVANAUGH: Can you tell us if the if any other woman has left City Hall, come through the chain of command so to speak in reporting sexual harassment involving mayor Filner?
GOLDSMITH: Actually I can't. Sorry. We are investigating, but there's also two agencies affiliated with the city, and then there's another investigation going on. We get bits and pieces of those others, and we cannot discuss them.
CAVANAUGH: What's the procedure within city government for an employee to report sexual harassment?
GOLDSMITH: Well, they may report to a state agency. They can also report to our agency, the equal employment investigation office. They can report to their supervisor or through the state agency or EEOI get a right to sue letter and just file a lawsuit. That's what Ms. McCormack Jackson did.
CAVANAUGH: And are those allegations always held in confidentiality?
GOLDSMITH: Well, obviously if they go to cord proceeding, it's not, but the confidentiality is -- I'm going to defer to those agencies because the agencies may have different policies. They are in -- EEOI is independent from the city. But if there's a lawsuit filed, yeah. Now, I am a supervisor of about 340 employees in my city attorney's office. I have had claims of harassment over the last five years of one employee harassing another employee. It happens in the workplace. And we have a standard of course of zero tolerance. If this was somebody under my supervision, he would have been put on administrative leave while we investigate. Then we would have given him due process as through administrative proceeding, and if found to be culpable, he would have been fired. We would have taken steps to protect the accuser.
CAVANAUGH: Moving toward the investigation that's being conducted by the sheriff's department at this point, will your office be involved in any way in any potential criminal action that may result from that sheriff's hotline, that sheriff's investigation into sexual harassment by the mayor?
GOLDSMITH: No, we've recused ourselves from the criminal. Because we knew upfront this was going to be the city versus the mayor.
CAVANAUGH: Let's move onto the assertion by the mayor's new chief of staff that she and the mayor themselves decided he wouldn't meet alone with women anymore.
(Audio Recording Played)
NEW SPEAKER: You said that the city attorney is the one who imposed this new policy that the mayor would not meet alone with any female constituents. The fact is the mayor and I together developed that policy. We felt it was a reasonable and prudent business practice in light of the allegations that were being developed against him. And we put forth that policy because we felt it protected both the mayor and the citizens of San Diego, ensuring them that city business was being conducted with the highest level of integrity.
CAVANAUGH: Now, to our listeners, we invited Lee Burdick to be interviewed on the program. Her office did not reply. Jan, what is your reply?
GOLDSMITH: Well, she doesn't have her facts straight. There's a letter from her lawyer acknowledging that we asked for this, and also pointing out that Mr. Filner did not agree with it but will reluctantly go along with it. Who did it first seems a little petty, but this is simply not true. The other parts of it however are saying that it's in the best interests of the city and the mayor is true, and I agree with that. And it would have been foolish to allow him to meet with women alone. I asked for this policy within minutes after the Donna Frye press conference. When we were told by two lawyers and former councilwoman Frye who I have a lot of respect for that this is a pattern and what his MO was, that he would get women alone. Now, whether that's true or not, state law requires that the city as the employer take reasonable preventative measures, even before adjudication. That's what state law says. Within minutes, I was on the phone to the chief of police, and I was on the phone to the chief operating officer, followed up with a communication, and then communication to Harvey Berger. There was an agreement that was reached on the policy. It's the city's obligation. But the mayor too. And you don't want to have more he said she said type situations. So what she said the policy is right, but I don't know why they want to spin this as coming from them. It seems petty.
CAVANAUGH: Well, that's my point. Do you think it's possible she honestly did not know this, or is this perhaps a lack of transparency in the mayor's office?
GOLDSMITH: I don't know. That's speculation. I just think it's a little petty.
CAVANAUGH: Now, you said that is this policy forbids the mayor to meet alone with women in City Hall or on city business. Can he meet with his own chief of staff who happens to be a woman?
GOLDSMITH: Well, are it's a policy that we have to rely upon enforcement in the chief of staff. At the time it was Tony Buckles. He agreed to enforce it. Lee Burdick has said she would. We also have commitments from the police chief. I can't make a law for the City of San Diego. I'm chief legal advisor and attorney. They've agreed to it. I expect it to be followed. I have heard Lee say she will not meet with him alone. That's about the best I can respond.
CAVANAUGH: Mayor Filner says he will begin intensive therapy at a clinic next Monday. Is the mayor required to let some city official know where he is?
GOLDSMITH: There's nothing in the law that I'm aware of. So no, I guess not.
CAVANAUGH: So there's no requirement, no sort of chain of command kind of thing? The mayor could conceivably go off anywhere and not tell anyone and that would be fine?
GOLDSMITH: Yeah. There's really nothing in the charter or any of our laws that say that he has to be incommunicado. We have a chief operating officer, Walt Eckert, who we are now working with very well. We are actually being consulted on the law on a daily basis through Walt. For us, things have improved, believe it or not. So whether the mayor is there or not for us may not be all that relevant.
CAVANAUGH: Speaking of where the mayor is, mayor Filner now says that he will reimburse an organization that paid for his recent trip to Paris. But his security detail on that trip cost the city more than $20,000. Is your office looking into whether the city should be reimbursed for that expense?
GOLDSMITH: Well, no. We're not. Chief Lansdowne has stated that he made the determination and we have no reason to disbelieve him, or the fact that there was some other pressure on him. If we receive any information to the contrary, we would look into it.
CAVANAUGH: Your office just clarified some murky language about recall, and given the go-ahead for recall petitions against the mayor to move forward.
GOLDSMITH: We have an old, archaic recall provision that hasn't been used in many, many decades. I didn't draft it, nor did my lawyers. But we looked at it and said oh, my goodness. This thing has more holes than Swiss cheese. So we have a series of memos. We started with the easy one. There's a provision that's clearly unconstitutional. That came out a week or so ago. The second one is creating a lot of confusion as to whether you can have two petitions that compete with each other and all that, and can you play games with that? We clarified that yesterday. Saying, yes, you can have two petitions, and if one of them qualify, it goes on the ballot. And if the people choose not to recall him, you got to wait another six months for a new one. So that was more difficult to interpret because it was a deeper legal issue. Fortunately our lawyers were able to find some precedent that's on point. Next we're going to be looking at the timeframe of the -- the timeperiod in which you can collect the signatures. There's some ambiguity there and some legal issues. So we're taking them in bite-sized pieces, we have a team of good election lawyers who know what they're doing. Just gotten written up in one of the leading publications. Our elections lawyer is a -- getting famous for her expertise. If she's listens, congratulations. They know what they're doing, and we do have quality control, and it takes a little time. So we decided to split it up to get the easy one out first, then the next one, and the third one will be a little tougher.
CAVANAUGH: The fundamental problem that you alerted the City Council to is a provision in the recall municipal code I think about recalls that may be unconstitutional. Tell us about that.
GOLDSMITH: Oh, that one is unconstitutional. We're absolutely convinced. That one says that if you get a matter on in recall, on the ballot, only the votes count where you vote for or against the recall itself. And then for a candidate. Of course you have both them on the same ballot.
CAVANAUGH: You have to have the election the same time you have the recall.
GOLDSMITH: Yeah, and the ballots only count if you vote twice. Well, you can't do that. There's a federal case that was decided in Northern California that's unconstitutional. It's similar to if we were to require you to vote for your Congress candidate and your Senate candidate, and if you don't vote for both, your vote won't count? No, that's ridiculous. Believe it or not, other cities and states have that provision. Their recall provisions are archaic too. These aren't used all that often. But that one is not going to be enforced.
CAVANAUGH: How do we fix that?
GOLDSMITH: Well, we've declared it unconstitutional based on a federal decision. We will not allow it to be enforced. But the better way to do it would be for the City Council to repeal it.
CAVANAUGH: Now, last time you were on this show, you mentioned that the mayor could be be removed by a citizen's grand jury. And we didn't really understand what that was. Can you explain that?
GOLDSMITH: Yeah, there's a provision in in the -- I believe it's in the government code that empowers a civil grand jury to remove an elected office holder for willful misconduct or corruption. A little bit broader terms. I don't know how that's been used, but I do know that there was some talk of that a number of years ago with regard to another mayor, and the District Attorney took the position that because we're a charter city, we are not subject to that. We have not reviewed that. I'm not out there trying to find ways to recall or whatever or remove from office the mayor. That's not my role as a city attorney. But I raised that because I was asked the question, might there be? There might be. But that really would be up to the county of San Diego to advise the grand jury if that's what they want to consider.
CAVANAUGH: I see. If the San Diego City Council asked you to look more into it, would you be doing that?
CAVANAUGH: Okay. Now, it's well known that you and mayor Filner have had major disagreements since he took office. How can you separate your personal problems, maybe some antagonism toward the mayor from your official duties at this time?
GOLDSMITH: Can I ask you something?
GOLDSMITH: Am I the only one in San Diego who has had antagonisms or problems with the mayor?
CAVANAUGH: Well, you're in a particular position here, you're the San Diego City attorney. And your research and a lot of your decisions may depend on what the city does in response to lawsuits in response to various questions about recalls.
GOLDSMITH: Fair question. And let me just say from day 1, it's never been a personal feud. I don't know this man. Didn't. But from day 1, we have had a problem with getting him to keep us informed of what's being -- happening, so we can give legal guidance. We have had problems getting him to follow the law and to treat people civilly. We didn't have sexual harassment or sexual misconduct directed toward our larceny. But we did have yelling, screaming, throwing thing, calling names. And we had to put a stop to that. We wanted to be treated professionally. As a judge for nine years on the bench, I had many, many lawyers who did not treat people civilly or did not follow the law. I'm used to separating that. I've never been overturned for having a bias against or toward a lawyer. But it is -- yeah, I like to describe it to some of my folks who knew my career in the courtroom, it's like having the lawyer or litigant from heck in your courtroom every day. And it was very difficult for eight months for us to maintain myself and my lawyers our professionalism as I was accused of being incompetent, unethical, a felon, and yelled at and screamed, and one of my lawyers being removed from a closed session, arrested. But through it all, we maintained and our professionalism, but we were also firm. I am very proud of the way I conducted myself, and I'm very proud of the way my lawyers conducted themselves in a professional manner. And we are continuing to conduct ourselves in a professional manner. I have to tell you if the standard for the city attorney is whether you like the manner in which mayor Filner conducts himself, I don't believe you could find a city attorney to serve. That's not the standard. The standard is whether you can operate professionally. And I do resent when people raise the issue because for the last eight months, we have been extremely professional. We have raised above it. And to question our integrity is wrong. And I do appreciate the question from you, Maureen, but out in the community, we have people saying, well, there's some feud. This isn't Family Feud. This isn't two families fighting. I didn't know this man. I have no political opposition. I'm not running for mayor, I'm not -- there was nothing. I was just trying to do our job as city attorney. And we did it, and we were firm. And I have to testimony you, there were many times in the last eight months where I was standing up to him alone, absolutely alone. And a lot of the people who now see what I was dealing with were not standing with me. So I do appreciate the question directed by you, but yes, we can be professional, and we'll prove it, and we'll continue to prove it. I represent the City of San Diego. I do not represent mayor Filner. I'm going to represent their interests professionally.
CAVANAUGH: I've been speaking with San Diego City attorney Jan Goldsmith. Thank you.
GOLDSMITH: Thank you.