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.