No Jail Time, No Vote, No Pension: Inside Bob Filner's Plea Deal
October 16, 2013 2:12 p.m.
Dan Eaton, attorney specializing in employment law with Seltzer Caplan McMahon Vitek
CAVANAUGH: Tuesday we learned that former San Diego mayor Bob Filner pleaded guilty to criminal charges stemming from the sexual harassment allegations that drove him out of office. It's a stunning turn of events that could use a little more detailed explanation. So joining us today is attorney Dan Eaton of Seltzer Caplan McMahon and Vitek. Welcome to the show
EATON: Nice to see you, Maureen.
CAVANAUGH: In your experience with sexual harassment allegations that arise in the workplace, is it unusual that criminal charges result?
EATON: Very unusual! It certainly never happened to one of my clients that's been accused of sexual harassment. And this was very unusual. But the interesting thing, Maureen, is that based on the comments of the attorney general, Kamala Harris, this appears to have been prosecuted more as a case of public corruption. And that's what's so fascinating. How do we know that? Because attorney general Harris referred to ex- mayor Filner's actions as "an extreme abuse of power." It's important for our listeners to realize that the received wisdom in this area of the law is that sexual harassment is more about the abuse of power than about any kind of sexual interest, and how much more so when the accuser, we no longer need to qualify it by alleged, he's admitted it, when the abuser is actually someone who holds public office and public hour? That seems to be what was driving the events.
CAVANAUGH: And remind us why Kamala Harris is involved in this
EATON: Because the DA couldn't. San Diego's district attorney removed itself from any further action on these matters because of the obviously local nature of them and the need to have the kind of objectivity that is necessary in the prosecutors' office.
CAVANAUGH: The felony count that Filner pleaded to was false imprisonment by violence, fraud, menace, and deceit. What kind of actions could that encompass given the context of sexual harassment?
EATON: False imprisonment generally speaking is restraining someone's liberty, their personal liberty, and what we are talking about is what has entered San Diego's lexicon, which is the Filner headlock. And when you put someone in a Filner headlock, you are retraining them from freedom of movement. And that's a problem. Now normally -- I'm not a criminal lawyer, but I did speak to one, and she told me that normally this is not actually charged as a felony. But clearly a statement needed to be -- it's what's called a wobbler. It could be charged as a felony or a misdemeanor, but clearly they wanted to send a message that this kind of behavior was unacceptable, particularly in a public official.
CAVANAUGH: One of the wobblers went in former mayor Filner's -- in support of him. Because the two battery misdemeanors that he pleaded guilty to involved sex yell miss conduct. So why wasn't he charged with sexual battery?
EATON: This was all part of the plea deal that he worked out. You don't walk into court pleading guilty unless there is some type of agreement with the council. So you obviously see what the projected sentence is. Some people may think there's some Alice in Wonderland going on, because they talked about the projected sentence and then said sentencing would be on December 9th. But this was all part of a plea deal. The judge is still free to reject it, the deal that calls for no prison times, but that's certainly the expectation.
CAVANAUGH: What would have happened if you were charged with sexual battery instead of just simply battery?
EATON: Then of course it would have gone through the whole process, and you would have gone to a trial and so on. And that's a very, very serious charge. That could carry quite a lot of prison time. But it seemed from the outset that this would ever be tried as a criminal case. And this is not the end of former mayor Filner's legal problems. It's only -- it only eliminates one category of legal jeopardy for him, the category dealing with criminal charges arising out of his alleged sexual miss conduct.
CAVANAUGH: Back to the plea deal that we heard about yesterday, mayor Filner was defiant in his resignation speech. Now here he is pleading guilty to harassment charges. And I'm wondering what would a sexual harassment defendant, why would they find it beneficial to agree to a plea agreement?
EATON: Well, are the one problem he could face were this to be tried, he is looking at a considerably longer period of prison time, and certainly prison time at all which he appears to have escaped at this point. There are a lot of reasons people agree to plea deals, not the least of which is weighing the risks and benefits it appears that it is more likely than that that they will get a better deal agreeing to a limited set of charges than they would by having the full source of the state put them on trial and being found guilty beyond a reasonable doubt.
CAVANAUGH: Now, the charges that he pleaded guilty to are sexual miss conduct charges. Will he have to register as a sex offender?
EATON: That's a great question. And to be honest with you, I do not know the answer to that question. One thing I did look up is whether he would be barred from voting for his own successor. A lot of people think, certainly I thought, well, felony conviction, he can't even vote for his successor. The answer to that question is no, he can still in fact vote for a successor. The felony disqualification only allowed to limited circumstances, like when you are incarcerated and so on.
CAVANAUGH: You mentioned that the plea deal does not mean that there may not be legal troubles for Bob Filner down the line. I'm wondering specifically do these criminal charges have an impact on the civil case that's still pending against Filner from his former communications director, Irene McCormack Jackson?
EATON: It may. When I looked at the statement that the deputy attorney general gave, I was interested to see whether any of these incidents actually involved Irene McCormack Jackson, and they didn't appear to. The particular incident that resulted in the charge did not appear to be the incident in the civil complaint. Bottom line is it's not entirely clear whether this admissions going to be used against him in the civil case. If it is, it could cause further complications for him in that still ongoing matter. And by the way, additional sexual harassment lawsuits that may be broad to the extent that the time for bringing them has not expired. The statute of limitations that a lot of people have heard about and that Sheriff Gore made reference to in yesterday's pressor.
CAVANAUGH: It seems to differ in whatever article you read about this. I've heard that it's a rather good deal that Filner got, and I've also said that if he hadn't had been mayor of San Diego, they wouldn't have brought the charges to begin with. Three years probation, house confinement, mental treatment, not being able to run for office. Is that a sweetheart deal?
EATON: I'm told that actually it's not a sweetheart deal under the circumstances. I think frankly the truth as often is the case, it lies somewhere in the middle. It seemed to be a fair -- the charges seem to be the best that the attorney general felt that she could bring. And the deal was obviously the best that she thought she could get. Of the fact is that every plea deal is subject to a range of different circumstances. But the idea that on the one hand he was treated especially, harshly because he's mayor or leniently because he was a former mayor, the truth is somewhere in the middle. Doing the calculation of what convictions they thought they could get, they thought this was the best deal they felt they could get.
CAVANAUGH: And instead of a mayor that some believed was run out of office by a power brokered conspiracy, what legacy does this leave for Bob Filner?
EATON: Isn't that the interesting question? Ultimately this is about what kind of obituary is Bob Filner going to have when he dies however long it is from now? And that's a tough one to say. What will the first paragraph say? When you're teaching ethics, I teach ethics at San Diego state, and the question is what kind of legacy do you want to leave 1234 how should that drive your actions? If Bob Filner had been focused on that, would he really have engaged in this kind of conduct? It's not an ethical dilemma whether to put a woman in a Filner headlock or not, but it is a legacy that permanently stains his legacy and probably will be in the lead paragraph of his obituary. Something we could all think about as we take actions going forward.