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The End Of The Filner Saga? Some Educated Speculation

August 23, 2013 1:50 p.m.


Mark Sauer, Maureen Cavanaugh


Sandhya Dirks, KPBS News

Scott Lewis, CEO, Voice of San Diego

Carl Luna, Political Science, Mesa College

Dan Eaton, Attorney, Seltzer, Caplan, Vitek

Paul Pfingst, Attorney, Higgs, Fletcher, Mack


Sandhya Dirks, KPBS News

Amita Sharma, KPBS News

Alex Roth, inewsource

Related Story: The End Of The Filner Saga? Some Educated Speculation


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: Today is shaping up as an extraordinary day in San Diego history. The City Council is scheduled to vote on a proposed settlement reached between the city attorney, city leaders, and mayor Bob Filner. That settlement was apparently reached after three days of negotiations, and it likely includes Mayor Filner's resignation. But no official confirm a recollection will be available until after the City Council votes. We are taking your calls through this hour. And our guest, Scott Lewis, CEO of Voice of San Diego. Hi, Scott.

LEWIS: Hi, Maureen. Interesting day!

CAVANAUGH: Quite interesting.


SAUER: So we have also by phone joining us, KPBS metro reporter, Sandhya Dirks.

DIRKS: I'm here. I'm outside of the lobby of City Hall with photographers and people trying to get in to make their comments heard at 1:00 when public comment opens on this seemingly long-awaited day in San Diego.

SAUER: Give us a little of the roar of the crowd and the smell of the grease paint. Any folks down there with banners or silly hats?


DIRKS: Of course there are! It's San Diego after all. You have people standing with the due process sign, a couple of signs that say coup. Signs that there are people still very much in support of the mayor. But most of the people were screaming, and it was national, it's local, but it's a feeling here that I've never quite felt before. And as I'm in the lobby, one of the accusers who came out against the mayor, Peggy Shannon, who was the part-time City Hall employee, she's here right now.

SAUER: Oh, okay.

DIRKS: So it's an interesting side note. That is all happening, but it affects real people.

SAUER: And you'll be covering this for KPBS today, and noting who the speakers are. It'll be interesting to see if she is among them or any of the other women who have come forward. Walk us through what's going to happen there at 1:00.

DIRKS: Well, are at 1:00, is there is going to be public comment. They'll open it up so the public can make their comments known. So far I've seen maybe about 20 people waiting in line to get in for the public comment. I don't know if they're going to speak or not, but they're definitely there because there's a fascination with this. And after that, the City Council will vote on whether or not to accept this proposed deal with the mayor, and then after that, they'll come out, and then we can tell you what's happening. Until they vote, we really are just still shooting in the dark.

SAUER: So at that point, they'll lay it out, here's the deal, put it up on graphics, have a staff member or attorney say here's the nuts and bolts of it. Then they'll have public comment again, then the council members will weigh in.

DIRKS: That's what we expect to happen. But this is all very unorthodox, so stay tuned!

CAVANAUGH: Have you talked to anyone who is going to be speaking in the public hearing part of what's happening this afternoon?

DIRKS: I did speak with one woman who was standing outside. I don't know if she'll be speaking. But she said we can't let what happened take away our progressive mayor who was supposed to change San Diego forever. So she's definitely one of those people who is still sticking by him and feels the real loss of this historical moment. Because even though in the summer scandal, a lot of people felt Mayor Filner was going to change the city. And now the city is just caught up in the shadow of a scandal.

SAUER: And we have no way of knowing how long this will go. It's a democratic process. They got to let people talk. The council members will weigh in. And after the vote, if the deal goes down, the mayor will officially resign with a letter to the clerk, and we'll hear from him.

DIRKS: We don't know what form that will take. He has shied away from, in recent weeks, being in public. He has released statements, like the first statement we got or a written statement. So we don't know at all what the shape of today is going to be. We could make some good guesses. But this could go on all afternoon or it could be in the flash of an eye.

SAUER: Thank, Sandhya. We'll be hearing from Sandhya throughout the day with updates from the City Council meeting. And we'll be interrupting regular programming today on KPBS to carry these events.

CAVANAUGH: We may not know what's in the settlement, but we know one person who doesn't like it. Attorney Gloria Allred held a president conference yesterday to say she and her client were not part of the deal with the mayor.

NEW SPEAKER: We do not know the details of the reported deal, and we have not approved it. We are therefore concerned that the City Council may be voting on this deal in a vacuum. And that it may contain terms which we and the taxpayers would find abhorrent. We do not think that the city should help the mayor fund a fight against our courageous client, Irene McCormack Jackson, who was sexually harassed on her job while working for the mayor and the City of San Diego. The mayor's resignation should not be brought at the expense of his victims.

CAVANAUGH: Scott, you characterized this as Allred's attempt to derail the settlement. Why would she want to do that?

LEWIS: Well, you have to remember what's happened here. She and her client sued the City of San Diego for sexual harassment. They also sued the mayor. The City of San Diego unanimous counts of council voted to sue the mayor. What has been settled, apparently, is that cross-complaint, the city versus the mayor. And that's why apparently includes his resignation. What they have done is not choose to do a global settlement that would include her and her client, McCormack. So I think what has happened to her and her client, they have gone from suing the city and its mayor with the monster inside of him to suing the city and its taxpayers. And it's a normal sexual harassment suit. Not normal, but obviously it's a different circumstance. They can now fight that battle based on the merits of her claims for damages. It leaves them with the objective to have him resign obtained, but not necessarily any damages or attorney fees for them, and now they have a very awkward decision about whether they keep this fight up against the city for damages, and whether Allred even gets paid for her time.

CAVANAUGH: You put that characterization on it, and it seems to make sense. But one of the things that we were assuming when this lawsuit was first filed by Irene McCormack was that she would be satisfied with the resignation of the mayor. Did we assume too much?

LEWIS: Not necessarily. That's up to her right now. And I think that the question now is is she going to get a conclusion to her case, and is Allred going to be able to spend more time on it? She has a very expensive team. And she's in L.A. This isn't a cheap thing for her to do. It's not as much about the money as it is about closure for them. They're basically taken her funder and now want to face off with her separate. So I think there's a part of her very sincerely worried about the San Diego taxpayers. But I think more so, they're worried about the standing of their case and the leverage they have in the Court of public opinion as well.

SAUER: Right. And with Gloria Allred, you always have to be concerned because she obviously is such a media figure, a personality. And the question is on the mediation itself, three days of it, it was retired judge Irving, and you wonder how much influence he had into taking part of this and setting the Allred suit aside and really cutting her out of it after the first day, and then taking the rest of it and settling with the mayor, where some taxpayer funds are going to go to fees, and maybe a judgment, and his resignation is the deal there. And whether maybe she's upset because now she's not as big a player.

LEWIS: Well, it also leaves Irene McCormack kind of out on her own as well. And she's going to have a very difficult decision. Does she try to make sure Allred can at least have her time paid for, or is she okay with now this resolution? As far as a sexual harassment sought, the question about how much damages she's incurred is not as strong as when there's a monster bare in there. So I think it's just a different situation. As the first person to stand up publicly, some people are worried about her, making sure that she gets the conclusion she needs as well.

CAVANAUGH: And Scott, the mayor's ex was also at the press conference.

LEWIS: Very bizarre.

CAVANAUGH: What did she add?

LEWIS: I don't know! This thing keeps getting weird, then it gets weird in new ways. We all assumed she would add some sort of kill shot, and this would be the most revealing, embarrassing thing that came out. And really it was just this civic pep talk. It was almost like she was bait for reporters to pay attention to the thing. It was amazing.

SAUER: We have a caller. Len, go ahead. You've got a question.

NEW SPEAKER: It's more of a conundrum. They're having public comment before we understand what the settlement is. Isn't that kind of the cart before the horse situation?

SAUER: It's a good question. I'm glad you brought it up. I have a little bit of experience at City Hall. What they're going to do, they have an item saying we're talking about this lawsuit and this settlement here. We'll take public comment generally on that. Then they'll adjourn it, they will come back out and lay the deal out completely, and at that point, they will invite more public comment. So at that point, everybody will know the nuts and bolts of the deal, and you'll have the meaty comments come in. But that's a good question.

LEWIS: I think the broader public is getting a lesson in what we've all watched for years, about how these closed sessions work, and how they meet. What's odd about it is that the mayor himself is the presiding officer over the sessions. So he actually presides over this meeting even though he doesn't have a vote.

SAUER: And he presumably signed off on the deal. It's such an obvious conflict of interesting, I can't see how they'd allow it.

LEWIS: It just shows how weird this is. To be suing your mayor and settling that lawsuit --

SAUER: Where he's literally at the table where he's supposed to be.

CAVANAUGH: The mayor still has his supporters, and Scott, you spoke with one of his very vocal supporters, Bishop McKinney. Tell us about that. Tell us where that hardcore kernel of support is really coming from

LEWIS: There's really three tracks of supporter rhetoric for him. One is that this is a media frenzy, maybe even an all-out conspiracy and fabrication. The second one is that, well, he may have done something but it wasn't that bad. It was a pat on the fany, that sort of thing. And the third is, look, what he did was probably bad, a lot of things are coming out. But he can be redeemed. And this was the stance that Bishop McKinney took and said, this guy has done great things for our community, and we're Christians, we believe in redemption. And he also has -- just like his supporters, they care about different things. Like the seals. Bishop McKinney has a land deal at Valencia business park that the mayor stuck his neck out for.

SAUER: It's interesting you bring up we're Christians, we believe in redemption. That's seemed to be an early tactic that Bob Filner took early on where Donna Frye's got my attention, and that first videotape where can't govern effectively, I've got to deal with this and go forward. In other words, give me a chance, I'll deal with this. People weren't buying it.

LEWIS: I think looking back, his fate was sealed that day he did the videotape when he said -- it might have been sealed years ago when he did some of this stuff, but when the big accusations come forward, and he responded to it not by saying I'm innocent, I don't know what they're talking about, is this crazy, I'll have to figure it out. He said I need help, I've failed to fully respect women, I've been against sexual harassment training. And he said that, and a lot of us said what!

CAVANAUGH: It opened up more questions than it answered.

SAUER: He done concede the overall accusations.

LEWIS: He did not say I did not do that nor would I ever do that. And that just made it sound, like, okay, that second point of, well, maybe what he did wasn't so bad -- and I think there was a generational problem where a lot of people didn't -- he kept referring to it like in old times it would have been acceptable. There was just a concern that you're blowing this out of proportion. And he didn't realize that this was just unacceptable to a vast number of people including apparently the unanimous City Council.

SAUER: And he compounded that as he went along. We had interview where is he referenced the monster within, and he talked about what I've done when he was going to the psyche clinging are indefensible. These are his words!

LEWIS: A lot of people bring up this is some conspiracy. But he was asked himself, did this come from your political opponent, and he said no. This came from my own frailties.

SAUER: And his friends, initially!

LEWIS: He has never once taken the stance that this is a fabrication and some sort of political conspiracy. He's always said, look, this is a big deal, I need training, I need therapy, I need help.

CAVANAUGH: There have been so many accusations coming forward, each one with a similarity but with different weight, I think, that the public might give it. And we're up to 18 now. Do you expect anything else to come forward if the mayor resigns? Is this basically therefore over these accusations against Bob Filner?

LEWIS: No, I think the thing we have to watch is the sheriff did say he would put closure on this, and they would go through facts.

SAUER: Operating the hotline, and taking calls.

LEWIS: And complaints. So we have to see if he says, okay, we've taken all these complaints, there's no big deal, we're going to put these aside. Or something much worse. It would be a different scandal obviously if he was not in charge.

CAVANAUGH: We have been speaking with Scott Lewis, CEO of Voice of San Diego. Coming up, we continue our discussion with the legal aspect was a possible City Council deal with the mayor to step down.


SAUER: This is a special edition of the KPBS Roundtable. I'm Mark Sauer here with Maureen Cavanaugh. One of the possible legal ramifications of a deal between the city and Mayor Filner, will it be the end of lawsuits and the mayor, or might the city itself be subject of a legal challenge? Still with us is Scott Lewis, and joining us now is attorney Dan Eaton.


SAUER: Paul Pfingst, the former DA in San Diego.


SAUER: And Carl Luna.

SAUER: Dan, you were at a breakfast this morning where the speaker was done other than our city attorney, Jan Goldsmith.

EATON: It was a packed house at the university club, and he made a number of points, one of which he said coyly, I can't tell you what the deal says, but it was clear from his comments that the deal contains at least two things: One, the mayor is going to resign. Two, it's going to involve probably the dismissal of the city's cross-complaint against mayor Filner in the pending sexual harassment action asking him to reimburse the city. And the reason I say that is because the city attorney at some point said we have the right to assert that claim against the mayor. There is such a thing as trying to squeeze blood from a turnip. Interestingly, are he also raised the possibility that the City Council may say no. And he said if they do that, I'm going to walk home and "have a stiff drink."


EATON: I thought that was great! But it was a fascinating discussion.

CAVANAUGH: If he told us that much, what didn't he tell us?

EATON: Well, he didn't tell us whether it involving the paying of legal fees. He didn't specifically say that. And he also talked more broadly about the need for charter reform, with respect to the ability to get rid of a mayor or other elected official, but also some other issues that have to be addressed, including he said tweaking the strong mayor form of government. But he was careful to add "the middle of a crisis is not the time to float ideas."

SAUER: Now, one of the questions raised yesterday in Gloria Allred's press conference was how could a mediation apparently started to resolve her lawsuit suddenly reach a deal, and she seemed to be cut out after day 1? What happened?

EATON: It happens sometimes. Sometimes you have partial settlements. And this is what happened here. One thing is perfectly clear: The sexual harassment lawsuit that Ms. Allred has brought will go on after today. When people say this is over, it may not be over!

CAVANAUGH: Do you think what Allred said yesterday could put this deal out and just make the City Council think twice before they vote for it?

LUNA: No, it seems the only bargaining chips have to do with indemnification and legal fees. What happens as we go forward, because from the beginning, it has been clear based upon what little we know about or what we do know by filing statements from Bob Filner in terms of his financial wealth, he does not have the resources to go forward with lawyers looking at potential civil cases, employment cases, and so on. So he's looking at a financial Armageddon here. It appears to me the negotiating chip here would be we'll pay the legal fees, which actually is pretty common when there's an employee of the city, and we promise a percentage or complete indemnification for any settlement that's involved. That would seem to be the nature of the negotiation.

EATON: Define indemnification.

RIH3: We'll pay for your -- if we have to pay the plaintiff, let's take a number out of the air, $75,000, we'll pay it, are not you. And your legal fees, we'll pay it, not you. And therefore you won't have to go forward spending money out of your pocket. As far as you're concerned, you're a witness, and you're out of it in terms of money being spend for lawyers and judgments and potential bankruptcy.

SAUER: One question I have, and I don't know if we can answer it, how much is a suit like this worth? We heard some nasty things. It's obviously a valid lawsuit, it would appear. But what kind of money are we talking about? How much really are the damages worth, and the attorney fees?

PFINGST: Well, there's more. We're talking about one suit. We don't know that's the limit.

SAUER: One so far.

PFINGST: That's correct. But there are other employees and past employees of the mayor's office who are still eligible to come forward and bring suits for a hostile work environment.

EATON: And claims with the fair employment housing. When you ask how much it's worth, the answer is blowing in the wind.


PFINGST: Well, the city can mitigate this by the way they employ this particular employee. They guarantee her a position, so she's not losing her job. They make sure there's no retaliation, things of that sort. So the lawsuit, this one particular lawsuit is not the unique driving force. It is a collection of potential litigation that drives it as much as this one particular lawsuit.

CAVANAUGH: Yesterday during the press conference, Carl, it was your take that if the public got riled up enough about a huge payout, a potential huge payout to the mayor, that it might nix this deal.

LUNA: Well, that became the issue. Allred did the presser yesterday because she wants this involved for justice, money, etc. The City Council, all of them have to go up for reelection. Do they want this around their neck? Because if you vote to pay off the mayor's fees, right or wrong, smart or not, that's going to be campaign ad after campaign ad, that you indemnified the mayor. And my question is whether or not you'll have a majority of the council willing to take that heat.

EATON: And here's an interesting point on that dynamic. One of the things the city attorney disclosed was the process that's about to take place at 1:00. They're go to go to open session, formally open with Walt Eckert as the CEO. He's authorized there to sign the settlement if it's reached, but after that action takes place, you have public comment. Before they go into closed session. And that will be ringing in their ears.

SAUER: It's a tricky thing. You're going to have public comment on the item itself, go into closed session, come out and layout the nuts and bolts of the deal, and then you'll have public comment.

LUNA: If you're going to do this, you get in there, and you get out of town.

SAUER: Unfortunately they have a process they have to follow

PFINGST: The hard part about this, if there's going to be a financial decision, and there were no other things, the financial decision is to get him out of there, pay the indemnification and move on. Upon there's a paralysis throughout the city government that is incalculable in terms of how much money is involved, legal fees will be extended anyhow, financially it makes sense. But there's an emotional component to saying do we have enough courage to hold our nose and take that vote?

CAVANAUGH: We are going to be broadcasting some of that public comment. That happens before the vote itself, and then we're going to broadcast some of the public comment after the vote! So there'll be a lot of public comment.

SAUER: And the mayor if we hear from him this afternoon. So KPBS will have all of this within our regular programming this afternoon. One question that you just raised, Paul, that I'm interested in. You may have people down there in the public comment saying not a dime of the city money! This is despicable! But how does it work? We have had many cases in San Diego recently where the City Council has fought paying attorneys' fees, wound up paying to fight that, lost, and wound up paying attorney fees. Do they have to pay this anyway?

PFINGST: No, they don't have to pay there. There is no good choices. There is bad choice 1 and bad choice 2, and bad choice 3. Good choice left the building a long time ago. The vision of Filner going back to the mayor's office and embattling it out for the next years of litigation is not something that warms the heart of most people in San Diego. Sometimes you have to rip off the Band-Aid and it hurts. At least then you can go on.

EATON: Why don't they have to pay the legal fees? Because sexual harassment is considered outside the course and scope of employment. And under the law, that deals with indemnifying public officials who are the subject of suit and paying their legal fees. If it's outside the course and scope of employment, they don't have to pay. But they have discretion to do so.


LUNA: Well, part of this also is that issue of justice. And that's the hardest one to wrap your head around. A lot of people are going to look at this and say this is not right to pay off the mayor. While there are good reasons to do so. And apparently Gloria Allred's client doesn't just want monetary settlement, she wants him isolated and destroyed so he is the poster child to America: This is what happens to you. There is no exit for you, are don't do this again.

LEWIS: Three things to watch for. How does the vote actually go? If this is unanimous, it's a much better situation for the public who support it. And does somebody hammer it? Does somebody lead a rhetorically campaign against it? If there's a way to make it stand out to make it understandable for thousands of people, that's going to be a real problem. Of and the third thing is they set this in motion I think -- I lost my train of thought -- Rick Perry.


PFINGST: One of the things you look at here, former judge Irving was involved in negotiating this thing. And lees a pretty sharp fellow!

EATON: Amazing.

PFINGST: Very good at what he does. And I suspect he counts votes as well as anybody else counts votes when he was putting this together.

LEWIS: That's the point! They had the foresight to include not Todd Gloria, just the City Council president, but also Kevin Faulconer, the sort of minority leader on the council as a Republican representative. And if he were a part of this, that would be a much different situation and much easier for him to hammer it.

EATON: Let me come back to this justice point quickly. The city attorney said one thing he does agree with, with Gloria Allred, is this justice requires the resignation of Bob Filner.

PFINGST: Having Gloria Allred drive politics of San Diego is something that scares the willies out of me. So getting past her stake in staying in front of cameras, San Diego has to move forward. And when we see the paralysis taking place in government, we have to make some tradeoffs. And the tradeoff here is do we want this man never to darken the City Hall again and be gone and turn the page and move on? Or do we want to spend another year going down the pike of litigation, depositions, and everything else --

EATON: And recall.

PFINGST: And recall and everything else.

CAVANAUGH: If I've gotten this clear, are you saying that the City Council's refusal to pick up the mayor's fees, his legal fees, and the city's cross-suit was the leverage they had in this mediation?

EATON: It was important leverage, absolutely. You're talking about an awful lot of money and legal fees and exposure in the sexual harassment lawsuit. That $75,000 figure was a pretty low number in my judgment given the nature of the allegations.

LEWIS: And it's also not in the city's interests. If Filner doesn't have good representation --

PFINGST: The city could end up eating part of the judgment, finding itself partially responsible for all of this. But there's other things that we don't know, and there's actually a lot we don't know. What's happening with the federal government and their investigation? And has Filner's lawyer approached them? And as he approached the attorney general in that investigation? And the sheriff in that investigation?

SAUER: That's a really interesting point. Let me ask you as a former district attorney, and of course a very experienced lawyer, we can talk about plea bargains once there's an indictment, a charge made, right? Can you do that before -- can you bring in at this time feds or the sheriff before you have any indictment at all and say, all right, maybe some of this -- what if this rises to a criminal charge, a felony charge, who knows? All that goes away too if you resign.


SAUER: Okay.

PFINGST: And it is done. There is precedent for that.

LUNA: I do have a question on precedent. Do we have precedent for an elected official being offered a buyout deal from his elected office? I know it happens with appointed officials. But I'm trying to think where somebody elected had quite a deal like this presented.

PFINGST: No, because we haven't had in the past a vote ahead of time by the City Council to say no, we're not paying. Usually that comes down the road.

LUNA: In California, anywhere in the state, the country? It strikes me as interesting new ground.

EATON: Well, the big one was Richard Nixon.


EATON: I won't go there. Let's be clear about one thing. The city is automatically liable with Bob Filner if sexual harassment liability is found. The fact is that an employer is liable if a supervisor engages in sexual harassment under California law. And that's an important part because the supervisor is considered the city.

PFINGST: And we haven't seen that thing play out too frequently in a courtroom either. So there's so much new psychological courtroom drama and stuff, if you said what's the best thing for courtroom junkies, lawyers, make the deal not go through!

CAVANAUGH: So supposedly this deal that we still don't know the actual nuts and bolts of, supposedly it does not stop any legal action except the city's cross-complaint against the mayor?

EATON: And I'm assuming that's part of the deal. I don't know that that's true. It's hard to imagine they would have a resolution where the city's cross-complaint remains.

SAUER: A caller, Mike from university city. Go ahead.

NEW SPEAKER: Because of their interests in running for mayor, shouldn't Faulconer and Gloria recuse themselves from the vote today?

EATON: It's not a legal question, it's a political question.

LUNA: I would not think that they would. Because until such time as the mayor is gone.

LEWIS: Quite the opposite. This is a very difficult decision. And I think this is a test of their leadership. They have to make a judgment here. We appoint people like this to or elect people like this to make these tough decisions and risk assessments, so make it.

PFINGST: Yeah, they didn't put themselves in this position. And you need a group of people to make the call. And I don't think there's any way they can avoid it. At least I hope people don't avoid it because it's a tough vote.

LUNA: If they thought they shouldn't have been part of the vote, they shouldn't have been part of the mediation.

EATON: Anything.

SAUER: Scott and I were talking before we came in, now Channel 6 News is tweeting that it may be that council members Sherman and Cole are saying they may not show up today for this vote. What do you think of that?

PFINGST: They probably have something more important to do.


LEWIS: This is the most offensively spineless thing. Unless they can make an excuse.

PFINGST: But it's not fair. They haven't not showed up yet.

LUNA: It does underscore the uncertainty going into this vote this afternoon.

CAVANAUGH: Exactly right.

LEWIS: If there's a chance those two don't show up and have an excellent reason for not showing up, that is the most offensively spineless leadership I have ever seen.

CAVANAUGH: We have to take a short break. We will continue this discussion with our guests and continue to talk your calls.


CAVANAUGH: This is a special edition of KPBS Roundtable. I'm Maureen Cavanaugh here with Mark Sauer. I just want to tell everybody what it is we're talking about. The San Diego City Council is expected to vote on a proposed settlement with mayor Bob Filner this afternoon, and we are planning to bring you that live here on KPBS. No matter what happens today, we've already learned a lot about the holes in our strong mayor form of government. Dan, Paul, let me just throw this out, it doesn't seem like anybody thought about how to remove an unfit mayor.



PFINGST: They thought about it, but it's flawed. And there are some balances here. If you want to make it real easy to remove an elected fortunately, you bring politics into the play, and get a majority of this party, and they remove the other party and back and forth. Nobody wants it to be that easy. But there are multiple avenues to remove a public official. One is the recall. That's hard! A prosecutor can jump in, go to a grand jury, and vote out accusations against the public individual. There are multiple ways to do it.

LEWIS: There is only one city in California of any size at all that has more stringent recall rules. Berkeley has even -- and it's even better in some way, as far as easier. But we have this extremely short timeline, and this very large significant gathering threshold in order to make it possible. And part of the reason is because our charter gives that power of how to decide what the recall threshold is to the politicians through the municipal code. Other places actually have it in their charter, and it's just part of the city's constitution.

EATON: And one of the things, the city attorney's point, it's harder to recall a San Diego mayor than it is to get rid of the president of the United States. Now, whether you agree with that or not, his point is that harry Johnson, are the great reformer of the 20th century in California did not conceive of a recall process as convoluted as the one we have here in San Diego.

CAVANAUGH: And apparently there are old statutes in the municipal code regarding recall that haven't been cleaned up despite Supreme Court rulings that the wording is unconstitutional.

LEWIS: It requires you to vote first on the recall. Then if you vote on that, you can vote on the next thing.

EATON: Only that.

SAUER: As we saw in the Schwarzenegger -- when Davis was being recalled.

LEWIS: They challenged that, and it was thrown out, but we never fixed the municipal code.

PFINGST: And we're the first county in the State of California, okay? We've gotten along since 1850, and this is the first time we've run into this problem. So in government, that's not so bad.


EATON: But it's the first time it's been challenged. And it was a San Diego federal judge who threw out the analogous federal and state law on recall. We have had a City Council woman recalled in the early 1990s, Linda Bernhardt.

PFINGST: She had strong opposition her, and they got the signatures against her in a weekend in a Vons.

SAUER: We're now told that council member Sherman has confirmed --

LEWIS: No, he's not going. He's on a trip.

SAUER: Oh, so he is out of town.

LEWIS: That's my understanding.

SAUER: So we may out of the nine members only have eight or seven.

LEWIS: And it sounds like Myrtle Cole is the other one potentially not going. She is also on a trip.

SAUER: It begs the question of where are you, how far, can you break off your trip?

CAVANAUGH: Is it reasonable to assume that City Council leaders, Todd Gloria, Kevin Faulconer knew about this?

PFINGST: Yes, and it's reasonable to assume that they can count. And if they can't count, I'm really disappointed in their leadership. If they can go to a mediation with judge Irving and go through both ours and these in the room and not be able to count the number of votes for such a small number, that would be very bad.

SAUER: They'll have a quorum.

EATON: We're assuming a static process, between what they faced in the mediation and what they face when they go behind closed doors after public comment of indeterminant length and intensity. So the conditions that exist in mediation are not the same ones behind closed doors. The results may be the same.

LEWIS: Everyone who makes a vote on this is going to have to live with that vote for the entire career.

PFINGST: To remove the mayor.

LEWIS: Or not.

PFINGST: Is it a vote to remove the mayor or a vote to pay the mayor's legal fees.

LEWIS: And that is something they're going to have to deal with. Not showing up is another thing they might have to deal with.

PFINGST: I would look at the media and say how is the media going to frame it? The media is going to frame it a vote to get rid of the mayor

LUNA: And other political consultants when they have to run against those candidates, they're going to frame it in a very different way.

LEWIS: Maybe that will actually hurt them.

LUNA: It was like Scott Peters running for Congress with the budget problems and the city and all that. Sometimes it works and doesn't.

PFINGST: How about the vote to keep the mayor in office? How does that get framed?

EATON: I agree with the first point. I don't know that a vote is a vote to keep the mayor in office. It has that effect. But let the people decide. The stuff the protestors talked about, due process. If the mayor has expressed a willingness to accept this now drafted resignation letter, the City Council said this morning, ultimately they're the final decider.

SAUER: What would drew process be at this point? Obviously the recall would proceed. And we talked about earlier perhaps criminal cases. We have this lawsuit here. Do we wait while all of that goes on?

EATON: You want to hear something else interesting? The City Council says, you know, city attorney Goldsmith? Try again. And here are some suggested things to bring back to the other aside.

CAVANAUGH: So resume the mediation?

EATON: Absolutely. What happen fist they ask for different terms? Is that a possibility? The city attorney said, yes, there would be no deal, and the beat would go on.

PFINGST: It should be, I think, noted that Jan Goldsmith seems to have been sort of a calming influence during this whole thing and has proceeded along pretty methodically. I have some confidence in the fact that with all of those various players in the room apparently trying to reach a consensus, that my bet would be that there's going to be a consensus here.

LEWIS: And does Filner go to the meeting? In the all rules, he's the presiding officer of the closed session. Does he say something?

I would be more confident that they would dismiss Allred and her showboating and all the rest. If they had her inside the room with her and she signed off on this, I would say it would be a no-brainer. But the fact this now become a controversy was a sign they didn't manage it as well as they wanted to

LEWIS: And a sign she was probably asking for some pretty significant amounts of money, right? Why else would they want to cut her out of this global settlement?

PFINGST: I don't think the issue by judge Irving was how do we deal with this one particular lawsuit or sexual harassment. The issue was a lot bigger than that.

CAVANAUGH: I have a question. This was reached through mediation. We had a show about that earlier this week, and the confidentiality requirements that attend themselves to a mediation. Is it possible that even though the City Council is going to have an open vote on this matter that we will not know the fine points of this deal?

EATON: No, we'll know the fine points of the deal because it has to be voted out. What we don't know is the give and take in the mediation itself. Those are the communications that are subject to confidentiality. And about Gloria Allred's participation, technically I know what you're saying about what was before judge Irving. Technically that lawsuit was in fact the impetus for this mediation. That's why she was there, why her client was there. And what came out of it is a deal that deals with at least part of that lawsuit.

SAUER: We're going to take another caller. Judy is on the line. Go ahead.

NEW SPEAKER: I have a couple of questions. The first one has to do with talking about the cost and the city's liability in potential agreements. Nothing has been said about the potential cost if there's a recall if he doesn't resign. That's one question. And the other one is that many. These allegations against him took place before he was an employee of the city. So what would happen to those and what would the city's liability to be for that?

LEWIS: Well, it's actually cheaper for the city if there's a recall because there's only one election. If there's a resignation, there's going to be a primary and then a final. And the other thing to keep in mind is the cost to the daily business, the paralysis of the city.

SAUER: Right.

PFINGST: That's a big cost. It's hard when you're returning an organization this big, and Walt say good administrator, but paralysis sets in among a workforce. And when you see that, it has an impact, not only financially on the government and things not getting done, but an impact on communities and neighborhoods all across a very large city. And that paralysis can be very real. And to get the government moving forward again is really not an easy thing to do.

SAUER: Not to mention our image. We are America's finest city, tourism is a huge business here. How long do you want to be a figure of fun nationally?

EATON: Let me get back to the dollars for a moment. The New York Times, the last paragraph of the story they ran today, it said that the cost of a recall and resignation are roughly the same. We can talk about whether a million here and a million there. The city attorney said let's say you have a recall. There is nothing to stop Mayor Filner on the day before the recall from resigning. Then you have all of the costs associated with the recall except with a ballot which wouldn't go forward, and then a resignation which would require a special election.

LUNA: And for future reference, Scott put the finger on something that has to be fixed in the recall. In the recall, whoever has the most votes fins. That means you could get elected mayor with 12 votes. We have to fix the recall so it's a 2-step process so somebody gets 50% plus one of the vote.

CAVANAUGH: And the caller talked about there are 18 women now accusing the mayor of some form of inappropriate behavior, her second question. She was making the point of where they might fall in some sort of future action.

EATON: A lot of it is not legally actionable, either because of the statute of limitations has run, or because as appalling as the behavior is it doesn't rise to the level of severe or pervasive misconduct.

PFINGST: What about the women who are not city employees who were groped in some way by the mayor while he was soliciting help from the government? And that liability is not quite as clear.


PFINGST: As the employee liability, which has very strong rules. That whole area is very undefined, and there could be lawsuits coming from there as well.

EATON: I think I said it on this show, there is a law that deals with sexual harassment outside of the workplace. But it requires very specific kinds of relationships, and it's not clear of the women outside of the city's workforce would qualify. That said, there have been three employees with asserted claims. Two others who have filed claims with the State of California's antidiscrimination entity asking the state to investigate.

SAUER: Are you surprised there haven't been more lawsuits at this point?

PFINGST: Yes. Because the sharks are circling. And there are lawyers out there who can see money in this. And the city that is inclined to settle and move past this. So I would not be surprised to see somebody hook up with some people, bring a claim, settle it for a relatively modest amount and walk away.

EATON: I've got to defend the honor of our profession.


EATON: I think frankly some of these lawyers are looking at these things and saying there isn't a claim here anyway.

SAUER: Is there a class?

PFINGST: No, you're not going to get that. But as much as I say there are lawyers who will turn it down and say no, there are lawyers who will say yes.

CAVANAUGH: Carl, let's assume that this day goes the way our conventional wisdom is telling us it may, and that the mayor does resign. Remind us who leads the city and when will there be an election?

LUNA: Todd Gloria becomes the acting mayor. But with the strong mayor system, he does not have all the powers invested in the mayor. It's not still a special election, about 90 days after they declare it, then he wins the majority of the vote.

EATON: He doesn't actually become acting mayor. This is something that is out there. He assumes some of the mayor's responsibilities. He has no power -- and the charter is quite clear on this point. The reason it's important is because Todd Gloria does not give up his seat if the vice president succeeded the president.

PFINGST: So it's a misstatement of that.

LUNA: So Walt Eckert rules.


SAUER: Scott, will we see Todd Gloria as a candidate?

LEWIS: I don't know. I don't think he does run, to be honest. I think he spends this time showing his leadership skills and does something else. I think the real dynamics, there's one huge decision, life-changing, historic decision, and that's Carl DeMaio. Does he decide to leave the congressional race to run for this seat? And then there's Tony Atkins, the assembly majority leader, could be the first speaker from San Diego in quite some time or ever. Would she leave that and come down? And then Nathan Fletcher is already in. A Republican turned Democrat. He probably wishes he had a few more years to settle that.

SAUER: We're going to have to wrap it there.