HR lessons in San Diego mayor’s sexual harassment debacle

by Mark I. Schickman

In the movie Anchorman, Ron Burgundy is a toothy, handsome news anchor who leads a San Diego news station that is simply too sexist to believe. It seemed cartoonish—until now, when we meet San Diego’s toothy, handsome mayor who allegedly is a more out-of-control sexist than Ron Burgundy on his worst day.

Stay classy, San Diego
San Diego is no longer the sleepy beach and military retirement town it once was. It’s the eighth biggest city in America, second in size in California only to Los Angeles. Its 70-year-old mayor, Bob Filner, is a national figure, having served 20 years as a Democrat in Congress before taking the mayoral post. He is the first Democrat to lead San Diego in 20 years, and his policies are consistently liberal—for example, winning union kudos for establishing prevailing wage rules for city contracts. San Diego needs good leadership. It faces significant challenges—25 percent of its economy relies on military spending, which is being seriously cut.

But in Filner’s first eight months as mayor, the worst problems he is facing are more personal than municipal. At least nine women have raised sexual harassment claims against him, ranging from doing a hand check to see if one worker actually “worked her butt off” for him to asking another to work without wearing underpants to surprising another woman with a forced sloppy tongue kiss.

Filner’s excuses for his conduct are vapid and varied. In mid-July, he explained with a grin that he was simply a “huggy” and “demonstrative” person. In a recent letter to city officials, his lawyer blamed his conduct on the absence of harassment training, which the city should have given him—though recent evidence suggests that Filner himself canceled the scheduled training. Finally, he has fired the silver bullet that always excuses celebrity misconduct: He is going into two weeks of rehab to cure the condition that has made him act this way. The San Diego City Council is unconvinced and voted this week not to pay his legal fees in defense of these claims.

Reportedly, Filner hasn’t been around his office for the past week and is on blatantly hostile footing with the supervisors, city management, and employees. He can’t get advice from the city attorneys for they, too, appear to be in the opposing camp. Nearly every major Democratic party leader and elected official in California has called for him to step down. So goes management in California’s second largest city.

Unfortunately, in San Diego, the mayor is no longer a mere figurehead. Rather, a series of votes between 2004 and 2010 created a “strong mayor” system in the city under which the mayor is independent of the supervisors, can control the administrative functions usually handled by a city manager, and—here’s a concern—apparently can’t be impeached or recalled.

Takeaways
The primary lesson is that sexual harassment is harder to eradicate than the common cold. It doesn’t matter how smart or sophisticated one is or how severe and embarrassing the ramifications of getting caught. In this case, some of Filner’s oddest conduct occurred while cameras were rolling. After 35 years of working on sexual harassment issues, I sometimes wonder when it will finally be controlled. The answer is never, so good HR professionals will always have a job.

The second lesson is to always maintain a trigger to meaningfully discipline a misbehaving employee of any rank. In this case, the city charter might guarantee Filner another 40 months in office because there may be no way to impeach or recall him. Similarly, I have seen contracts that forced a company to pay a million-dollar bonus to a salesman who was a walking sexual harassment complaint or that required a multimillion- dollar payout before it could fire an executive who created a sex scandal in his unit. Having a high officer entrenched in conflict with the rest of the organization causes a major management problem, so always draft a provision to address the Bob Filner syndrome.

Abraham Lincoln famously wrote that “a house divided cannot stand.” San Diego’s municipal government already is in a lost fight with multiple victims of harassment. Nothing good comes from having the city fighting against itself as well.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. He may be contacted at schickman@freelandlaw.com.