The Democratic Party of San Diego needs better lawyers. Or rather, it should have used the lawyers it has.
In 2011, at least three women warned the head of the San Diego County Democratic Party of stories in the community about then-Rep. Bob Filner making inappropriate advances toward professional women with whom he'd come in contact through his political position.
Former California State Assemblywoman Lori Saldaña, San Diego County Democratic Central Committee member Martha Sullivan, and Escondido City Council member Olga Diaz all brought uncomfortable incidents to the attention of Jess Durfee, who was until the end of 2012 Democratic Party chairman for San Diego, the eighth-largest city in America.
What happened next illustrates the enormous challenge the situation presented to local Democrats, who were looking to Filner as their best shot at retaking the mayor's seat in the heavily Republican community for the first time since 1992. It also reveals the party's short-sighted and ultimately self-destructive failure to do due diligence on the accusations, which were presented to the party secondhand and yet failed to trigger any kind of substantive investigation, or even an intra-party conversation with a lawyer.
San Diego Democrats are now devastated that they put the party's local revival in Filner's hands, tainting it for who knows how long. National Republicans are gleeful at a chance to try to turn the tables on the Democrats' "War on Women" talking point, roping Filner together with deeply unpopular New York mayoral hopeful Anthony Weiner and others to try to create a national narrative about Democratic political hypocrisy on women.
As Filner fights a recall effort and rumors swirl that he's working on negotiated exit from office as part of his response to a sexual harassment lawsuit from his former communications director -- along with accusations of inappropriate behavior from 13 other women -- Republicans and Democrats alike are asking themselves how his behavior could have gone unchecked for so long.
Saldaña, a long-time political foe of Filner's in the San Diego area, says she became aware of allegations against him in the summer of 2011, while preparing to teach a course at a local university. As she reached out to high-level women in politics and the non-profit sector to be guest speakers, Filner's name came up.
"I began hearing these consistent stories of inappropriate behavior, where he would segue from, say, a site visit to their school and follow them back into area away from other people on the visit, and start to proposition them and get physical with them and ask them out on dates or even grab them in public, in front of other people," Saldaña said. "As I had these conversations over a period of several days and heard these consistent stories about his behavior, I started connecting the dots and went to the county party chairman and said, 'I think we have a problem here'."
She brought six women's stories to Durfee in the summer of 2011, she said, though she did not have any direct experience of inappropriate conduct herself.
"We're all wondering, 'Why didn't the chairman listen to our concerns?'" Saldaña said. "His defense now is that he spoke to Filner privately and Filner assured him no one had filed a formal complaint .... I mean, he wasn't harassing people in his office the way he's accused of now. He was harassing constituents, or professional women who basically needed to maintain a working relationship with him. So of course they weren't going to file a formal complaint against a seated congressman."
There was, for the women, also the baffling question of whom to report Filner to. The women Saldaña had heard about at the time didn't work for him, or know about each other, or necessarily even think a crime had been committed. "It looks like isolated behavior to them. They have no idea this person is doing these things to other women in other venues. It appears to be an isolated situation so instead of going and reporting it -- and again, who do you report it to?" Saldaña asked. "It's not illegal. It's not a workplace situation. It's just a very awkward and inappropriate, you know, social interaction."
Sullivan also brought women's stories to Durfee -- and got the same response. "I too expressed concerns to Jess based on conversations I had had with other women that Bob could jeopardize the campaign we were all working on so hard," she said. "Jess committed to talking with Bob and he met with Bob and when he reported back to me he said Bob said, 'I'm a single guy. I'm going to play the field and date' -- and this was before his engagement had been announced -- 'and no complaints have ever been filed against me.' And unfortunately we didn't have any kind of formal complaint."
Diaz, for her part, had been asked out by Filner at a Southern San Diego women's event but told The Atlantic the encounter was "not intimidating in any way" -- just "weird." She brought her story to Durfee at the urging of Saldaña, whom she considered a political mentor. "I told him my experiences, but more importantly, [that] I had heard many women confirm that they had similar kind of unsettling experiences," Diaz said. "My conversation with Jess was more of a heads up -- listen, this happened to me, I know it's happened to a lot of other women. I certainly didn't understand the severity of Bob's actions. I had only heard from women that had had the same kind of experience I had, which was more of an awkward encounter -- nothing physical, nothing really ghastly, but clearly inappropriate."
Durfee told Diaz and Saldaña he would take the matter up with Filner, which he did. But he says he felt his hands were tied as long as he did not have any firsthand reports of actionable behavior or formal complaints and Filner denied doing anything untoward. "Lori Saldaña came to me with secondhand reports," Durfee recalled. "I asked Lori Saldaña to have the women contact me. I told her at the time I would treat them anonymously, if that's what they were seeking, but I did need to hear directly from the women and I was not going to act on something that was secondhand information." Saldaña's "long history of basically battling with Bob Filner in political circles" made him "a little skeptical" of the stories she brought to him. "I actually wanted to hear from the women," he says.
The only woman he did hear from directly was Diaz, who recounted how Filner asked her if she was single during the course of an event when Filner was a member of Congress. She said she was married, they discussed to whom, and then he walked away. "What she told me at the time was she did not feel harassed," Durfee said. "She described it as dirty old mannish and we agreed that it fit that category. We also agreed that it was just sort of a disappointing thing for a member of Congress to say to anyone at an official event .... Obviously from putting that in the context that it was in, there wasn't a lot I could do with that, given, you know, Bob at the time was a single man."
Durfee set up a meeting to "discuss the rumors" and Diaz's report with Filner, who "denied basically anything except the conversation with Olga and said, 'I'm a single man. You know, how's a single man supposed to find a date?' basically." Durfee "encouraged him not to do that" at political events where he was present as a member of Congress because it might come across as "inappropriate."
"He felt very confident nothing would come up during the campaign," Durfee recalled. "He assured me that would not happen. He emphasized that. He said, 'In all my years in Congress, I've never had a sexual harassment complaint against me.'"
Filner was correct: Nothing came up during his bid for mayor, not even after someone sent an anonymous letter to his opponent in September 2012 alleging that "Many women in D.C. refer to (Filner) as 'Bobo,' 'Mr. Misogynist,' 'Nasty Narcissist,' or simply 'Filthy Filner'."
"Because we choose to remain anonymous, this letter may just be tossed into the round file," the complainants wrote. "We'll take that risk because even though our purpose is to 'expose' him, we know not to trust him, his methods, or his tendency towards revenge."
Filner's Republican opponent, San Diego Council member Carl DeMaio, shared the letter with the San Diego Union-Tribune and other local media outlets, but no one was able to pin anything down in a way that could be reported to their newsroom standards. The city lacked the sort of dishy blogs or hovering national gossip outlets through which similar charges now often make their way into mainstream news reports. No one spoke up on the record, and nothing happened. Saldaña held her tongue, set aside her concerns, and endorsed Filner, saying, "Bob and I have our differences, but this is not about personalities."*
Durfee didn't take his investigation very far in 2011, either. He talked to two of Filner's former district directors, "and they basically confirmed what he had said -- that there hadn't been any situations in the office, in the workplace and they had not heard of any when he was out being a member of Congress, you know, doing constituent services." Consequently, Durfee didn't feel ready to take the situation to the party's central committee. Nor did he reach out to a lawyer. "The answer is no, I did not speak with counsel," Durfee told The Atlantic.
Despite their efforts to alert the party, Saldaña, Sullivan, and Diaz were scarcely able to grasp the extent of the situation. As Sullivan put it, "I did not understand or have a sense at the time that I expressed my concerns to Jess Durfee in 2011 that it was anything as prevalent as it seems to be by the accounts that have come forward." And none of them knew what was about to happen inside Filner's San Diego office after his successful mayoral bid, where his communications director has alleged he asked her to work without her underwear and subjected her to months of crude talk and proposals, some delivered while she was in a headlock.
But if Durfee and other party officials had spoken with a good lawyer, the San Diego Democrats might have had a better sense of what they were dealing with in 2011 -- and what the City of San Diego could very well face now. And if Durfee had pressed for names -- as an attorney might well have recommended, and as is standard practice during vetting for high-profile political campaigns -- and taken the initiative to call the women, he might have uncovered more about the scope of the problem.
In addition to the lawsuit from former Filner staffer Irene McCormack Jackson -- who alleged months of inappropriate behavior in the workplace after joining Filner's staff in January -- a number of the incidents revealed in recent weeks could be actionable.
Douglas Wigdor, a founding partner in the New York-based firm of Thompson Wigdor, notes that in addition to sexual harassment suits from former employees, there would be other avenues for women who felt themselves mistreated by Filner to seek redress.
Chief among them would be the "common law torts," such as assault, battery, and intentional infliction of emotional distress. Some of the women who were not covered by employment law and who had not suffered something police and prosecutors felt rose to the level of a criminal offense could still potentially sue Filner in civil court for battery or assault.
"Being grabbed and kissed would constitute assault and or battery, potentially infliction of emotional distress," Wigdor observed. "I don't think the police would be all that interested unless there's touching of some intimate body part" he said, noting that "any unwanted touching ... constitutes, under the civil law, the tort of battery -- and the question obviously is what are the damages."
There might also be an outside-the-box claim of negligence, he added, as there can be when a company does not seek to stop harassment by, say, its CEO of women who are trying to do deals with the company, with one big caveat: "I'm not sure how that would apply in the context of a mayor and who his quote-unquote employer would be."
California also has an array of detailed laws beyond those that govern sexual harassment nationwide. Two employment lawyers familiar with California laws suggested there might also be a test case for a claim under Section 51 of the California Civil Code, which codifies the Unruh Civil Rights Act. It states: "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."
Any female constituents who Filner targeted in the course of a business relationship with the city might be able to file a claim, though only if it could be proved the city was a business establishment under the Unruh Act for the purposes of the transaction. "The Unruh Act ... is broadly construed, but requires the defendant to be connected to some kind of business establishment with a commercial enterprise," said Gay Crosthwait Grunfeld, a San Francisco-based attorney with Rosen Bien Galvan & Grunfeld LLP. The law is sometimes used to pursue rights-violation claims in non-employee business relationships, such as a between doctors and patients or landlords and renters.
All of this means that the city of San Diego's potential headaches might only be beginning.
Filner said in July he would fight McCormack Jackson's charges: "I do not believe these claims are valid. That is why due process is so important. I intend to defend myself vigorously and I know that justice will prevail," he said. A call to his attorneys was not immediately returned.
One of the women who objected to Filner's behavior early on thinks it worsened upon his reentry into the dating world. "I think it's escalated since he was divorced in 2009," said Saldaña. "And in fact that was one of the defenses that Jess Durfee used: 'He's a single man. If he wants to go out on dates, you know, then that's his life.' And again as I was trying to say: These are not dates. These are not social relationships. These are professional meetings where he's acting in these ways."
Perhaps the saddest reason Filner's behavior stayed under the radar for so long is because the women he targeted felt there was nothing they could do -- getting asked out or kissed by a politician at a professional meeting was just one more thing to handle on their own, one more creep to bear.
"This is just a symptom of something women deal with every day of their life in one way or another," Sullivan observed. "It's a very pervasive problem ... and that's why it's so hard to deal with this."
* Update: This paragraph has been clarified to include Saldaña's endorsement of Filner.