There is word that San Diego Mayor Bob Filner, the now-infamous accused serial harasser, has struck a deal to resign in exchange for the City of San Diego paying his legal fees in a settlement with one of his accusers.
In exchange for his resignation, the city will pay some, if not all, of Filner's legal fees and his share of any damages awarded in the lawsuit, said the sources, who spoke on the condition of anonymity because they were not authorized to speak publicly. One estimate is that the agreement will cost the city several hundred thousand dollars.
I've seen some outrage already at the prospect that the city will pay any of Filner's fees or any judgment against him, and confidently predict much more.
It is not unreasonable to be outraged as a matter of public policy that the city is picking up the tab for Filner's defense of sexual harassment charges.
But, if you care, there's relevant law on the subject.
The California Government Code controls a California government entity's potential obligation to defend or indemnify a public employee. The relevant provisions start with Government Code Section 995:
995. Except as otherwise provided in Sections 995.2 and 995.4, upon request of an employee or former employee, a public entity shall
provide for the defense of any civil action or proceeding brought against him, in his official or individual capacity or both, on account of an act or omission in the scope of his employment as an employee of the public entity.
There are, of course, exceptions. Among them:
995.2. (a) A public entity may refuse to provide for the defense of a civil action or proceeding brought against an employee or former
employee if the public entity determines any of the following:
(1) The act or omission was not within the scope of his or her employment.
(2) He or she acted or failed to act because of actual fraud, corruption, or actual malice.
If a public employee has a right to a defense under Section 995, and the government does not provide it, the employee can sue:
996.4. If after request a public entity fails or refuses to provide an employee or former employee with a defense against a civil action
or proceeding brought against him and the employee retains his own counsel to defend the action or proceeding, he is entitled to recover from the public entity such reasonable attorney's fees, costs and expenses as are necessarily incurred by him in defending the action or proceeding if the action or proceeding arose out of an act or omission in the scope of his employment as an employee of the public entity, but he is not entitled to such reimbursement if the public entity establishes (a) that he acted or failed to act because of actual fraud, corruption or actual malice, or (b) that the action or
proceeding is one described in Section 995.4
If you were arguing against the proposition that the City of San Diego has an obligation to defend or indemnity Mayor Filner, you might argue that sexual harassment is not within the scope of his employment. That would be a very good argument.
If you were the attorneys for the City of San Diego, however, you might find yourself in a dilemma. First, you would know that Mayor Filner's failure to resign will result in weeks or months of tumult, potentially including legal expenses related to contested recall elections, not to mention the cost of a recall election itself. Second, you would know that even if it seems clear that Mayor Filner is not entitled to a Section 995 defense for a sexual harassment suit, he might sue the city for defense and indemnification anyway, and that suit — even if it gets dismissed at the pleading stages — will involve legal expenses. Third, you might know that the city might be liable to at least some of Mayor Filner's accusers under some legal theories, and that defending each case by each accuser will cost money.
Therefore, a settlement that gets rid of Mayor Filner, resolves any claims he has against the city, and resolves claims by at least one accuser might be a rational business decision given the alternatives, even if it seems outrageous.
Nevertheless, it would not surprise me if somebody challenged the settlement as an unlawful gift of public funds based on the component that pays money to Bob Filner. That suit may not prevail, but it will cost money to defend.
There may be literally no way for the City of San Diego to win. The only course for the City may be to minimize harm.
Hooray for the legal system!
Last 5 posts by Ken White
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