Who Really Deposed San Diego’s Mayor and Nullified the 2012 Election?

By Bill Adams /UrbDeZine San Diego / August 31, 2013 

By now, most of the nation is aware of San Diego’s mayoral scandal, which was reported in such national media outlets as CNN, Chris Mathews Hardball, New York Times, etc. and included international legal gadfly Gloria Allred elbowing her way onto center stage. Former 10 term congressman Bob Filner had been Mayor of San Diego only 6 months before it all came to an inglorious and undemocratic end. The conventional wisdom is that the Mayor was accused by 18 women of sexual harassment leading to his resignation.

A former Freedom Rider, he was elected in the 2012 presidential election in one of the widest turnouts for a Mayoral election in the City’s history. It was a referendum for dramatic change, embodied in the policy positions and persona of Bob Filner. He was elected on a vision of prioritizing planning, neighborhoods, transit, affordable housing, labor, and livable city concepts. He was quick to deliver action on his promises . . . perhaps too quick.

At times, it seemed he was elected without really trying. He came into the Mayor’s race with a reputation for being irascible, pugnacious, and sometimes abusive. He raised a third of what his mayoral rival did. At age 70 he was in the twilight of his career, and the Mayorship was icing on his career rather than a stepping stone. He was beholden to few, and in the end, it seemed few were beholden to him.

 Empowering Mortals and Angering Gods

In another city the allegations that proved his undoing might have been treated as simply a rehash of already debated campaign accusations. His admitted abrasive, arrogant, even abusive conduct was well known before the election, and was an issue in the election. It was also known that he sometimes went too far. For example, in 2007 in a widely publicized incident, he was charged with assault and battery on a United Airlines employee and plea bargained to a lesser charge. In fact, most of the accusations that proved his undoing related to alleged incidents that predated the election.

It seemed, at least in part, that the voters believed his personality was what gave him the backbone to stand up to the City’s power brokers. He ran on a platform of empowering neighborhoods and not catering to “downtown insiders.” For the six months of his term, he did not disappoint them, taking on powerful interests and championing San Diego’s non-insider citizens. In record time, he shifted the power paradigm as no other San Diego Mayor had. He was an ally of the City’s “blu-collar neighborhoods,” and they stayed loyal to him to the end. Actions that gave development interests cause for concern included the following:

• Mayor Filner intervened at the behest of community groups to stop several well-funded development projects, as was noted in The Voice of San Diego and the San Diego Union Tribune (news outlets not sympathetic to the Mayor as is discussed further below). While the actions appeared entirely consistent with his campaign pledges to empower neighborhoods, developers and Republicans cried fowl and attempted to use these interventions as the basis for corruption investigations, despite the fact that the alleged “payments” were donations by developers to community projects.

• Rather than the usual assortment of developer friendly campaign contributors and large firm partners, Mayor Filner made appointments to the Planning Commission (Wagner and Quiroz) and Redevelopment board (Blackson & Baxamusa) who were neighborhood activists, non-profit employees, academics, and progressive urban planners.

• Mayor Filner reinstated the Planning Department, which had been subsumed into the development service department and marginalized under the previous mayor. He then recruited one of the most, if not the most, respected urban planners in the country, Bill Fulton, to run it. This was another clear indication that community groups and community plans were no longer to be over-run by well funded and well connected developers.

While the list of his accomplishments goes on, it was the foregoing that were most likely his undoing.

 The Three Part Perfect Storm

While it is dangerous to get in the way of big money, in San Diego the Mayor walked into a perfect storm. First, his personality and actions made enemies among even his supporters. Second, key supporters abandoned him. The third and possibly the most significant element in his down fall, the major media outlets were either controlled or financially beholden to his biggest opponents. As the dust settles, it is becoming increasingly clear that between the first accusation and his resignation reigned an atmosphere in which accusations and hysteria were left unchecked by opposition-influenced news media, supporters were intimidated into abandoning him, and the ends justified the means.

While it would be hard to eliminate Mayor Filner’s own conduct as playing a role in his removal, the scope and gravity of such conduct will remain unknown at least until there is a trial of the two sexual harassment suits, if ever that transpires. Before any evidentiary process took place, the City’s mayor was deposed in a forced “deal” without a recall election, without scrutiny of the accusations, without a nuanced public discussion, and without a balancing of the equities in nullifying an election.

In November, a special election will be held to replace the Mayor. Special elections typically see low voter turn out with a high proportion of older and more conservative voters. The City’s progressives are divided and demoralized. Therefore, the majority who voted for the Mayor are unlikely to find an adequate remedy in the special election. It begs the question why such an important referendum on the City’s future was so easily and undemocratically derailed.

The unusual perfect storm started with a press conference on July 10, 2013. It was not arranged by his usual foe, but by ostensible former supporters: attorneys Marco Gonzalez and Cory Briggs, locally known for high profile environmental and public interest lawsuits against the City; and former City Council person, mayoral candidate, and Filner appointee Donna Frye. They claimed to have knowledge of sexual harassment allegations. The details of the allegations and the identify of the accusers were not disclosed. They demanded the Mayor’s resignation before more would be disclosed. Although, the events that followed provoked many conspiracy theories, nothing has surfaced to implicate these three persons as part of a plot, though they are most responsible for the scandal’s initial momentum. As former supporters, they signaled the Castle ramparts were breached. By the end of the drama, it was a medieval palace coup in which everybody was in on it: the inner court, the guards – everyone except the public. It’s hard to know exactly where the scandal would have ended up had not the Mayor’s allies so quickly turned on him.

U-T publisher Doug Manchester expressing his sincere thoughts on the sexual harassment of women. (Photo credit: SD Reader)

Now that there was a breach in the Mayor’s own support structure, opponents saw an extraordinary opportunity. The task was still a monumental one but the enemies of the Mayor had a unique relationship with the local media – on both sides of the political spectrum:

• The City’s most well known developer, Doug Manchester, owns the City’s principal newspaper, the Union Tribune (‘UT”). The bias of the paper since his purchase is so unprecedented among papers of its size that it has been a topic of national discussion. In addition to being a staunch Republican who was no fan of the Democratic Mayor’s politics, two of his pet projects had been the target of the Mayor’s opposition: the City’s proposed Convention Center expansion and the proposed new professional football stadium – both planned near Mr. Manchester’s hotels. Moreover, the Mayor had intervened in the public funding mechanism for the Convention Center expansion to obtain a more favorable financial arrangement for the City. The Mayor opposed any public subsidy for the stadium proposal.

• The local news media outlets, which can normally be relied on to balance the reporting of the UT were silent on the salient questions in this matter.** These outlets were the Voice of San Diego, an on-line daily news outlet, and KPBS, the local NPR / PBS affiliate. A major contributor to both outlets was the City’s wealthiest man whose proposed development the Mayor opposed: the proposal and funding by Irwin Jacobs to build a parking ramp on to the iconic Cabrillo bridge entrance in the City’s famous Balboa Park. Ridding the City of Mayor Filner would also create another chance for his employee and also-ran mayoral candidate, Nathan Fletcher.

Local businesses stepped up to assist the recall Filner campaign. Here Hooters girls display a sign that declares that Filner is not welcome in their family restaurant.

What followed was essentially a “news black out” of investigative reporting, legal analysis, and political analysis. There were many facts and issues that merited a closer look. Nevertheless, the silence was deafening for anything but the steady drum beat of “new accusation[s]” and calls for resignation. Panel discussions were held which only debated the timing of resignation or recall, and new accusations were reported almost daily without scrutiny or gradation. In this environment, the following took place with impunity:

• News media rarely distinguished between the two sexual harassment allegations (now the subject of lawsuits) and the 16 date requests or allegedly inappropriate touches, which were lumped together as “18 sexual harassment accusations.” It is surprising how insubstantial many of the accusations appear on their face  – most were date requests or incidents that are open to interpretation. Many of them occurred years ago. A renowned gadfly and publicity hound made one accusation without further questioning. It is no surprise that only two of the 18 accusations have been filed as lawsuits. The lawsuits, even to most seasoned attorneys, do not appear to be of the most serious variety of sexual harassment suits.

• There was no public discussion of the effect a resignation would have in nullifying the 2012 election, or whether the interests of the public in that election should be considered in determining how to process the allegations. The 2012 election was revolutionary for the City in many ways. It essentially constituted a referendum for dramatic change from the way the City had been run for most of its history. The City had elected its first democrat in twenty years in a high turn out presidential election. Moreover, unlike the democratic Mayor of twenty years ago, the new Mayor openly campaigned against the City’s power brokers and allied himself with neighborhood groups, environmentalists, labor, impoverished communities, and the poor. Additionally, City Charter amendments (“strong mayor” amendments) provided him with greater power than previous mayors. News media typically would have provided at least some analysis of the effect of a resignation or removal on the interests of the public in avoiding a nullification of the 2012 election, or what types or gravity of conduct merit such an extreme measure, or what the appropriate process is for doing so. Nary a word was said by either of these news outlets until after the resignation – and then only in a guest opinion.

• More recently, in an out of town newspaper, it was reported that two City Council members allegedly witnessed Filner’s Mayoral runoff election opponent and former City Council member Carl DeMaio masturbate in the Council bathroom during Council public meetings. DeMaio repeatedly made public pronouncements demanding that Mayor Filner resign. It is believed that DeMaio may run for the vacant position. Despite the similar (or greater) salaciousness and obvious irony, news media refused to report the story and kept it under wraps for 3 years, even while the Filner scandal raged.

• The principal architects of the resignation deal were City Council members Todd Gloria (Dem.), Kevin Faulconer (Rep.), and City Attorney Jan Goldsmith (Rep.). These were the three City representatives who attended the two day mediation resulting in the resignation. Both Council members have since stated their interest in running for the vacant position. Moreover, Todd Gloria was to be (and now is) interim Mayor upon Mayor Filner’s resignation. It begs the question whether the Council members’ interests in their own ambitions conflicted with their role in the negotiations – a question ignored by the aforementioned news outlets.

• The City Attorney, who had been openly feuding with the Mayor since the beginning of the Mayor’s term, recently appeared to admit in an interview by an NBC Local affiliate  (at 2:14 in video) that he and his office had been investigating the Mayor for 6 months prior to the beginning of the scandal.

• The recall petition drive, ostensibly in response to the scandal,  began as early as January 1, 2013 at the inception of the Mayor’s term, long before the scandal broke.

• Adding to the list of dirty tricks and media pile-on, one news outlet even published a photo of the Mayor’s press secretary drinking from a glass with a penis shaped straw. The photo was accompanied by an article with commentary from a GOP consultant, but identified in neutral terms, opining about that the behavior was inappropriate especially while the Mayor was being accused of sexual harassment. The article didn’t mention until the fourth paragraph that the photo was taken at her bachelorette party in Las Vegas, or that the Mayor’s political foes set up the photo. When the circumstances of the photo were discovered, the article was widely criticized.

• The City Attorney and City Council set up the forced resignation with a classic coercive bluff. On July 30, the City Council voted 9-0 to deny the Mayor a legal defense against the harassment lawsuits, apparently with the City Attorney’s advice. Then three weeks later, the City Council voted to approve the resignation deal, in which the City would defend the Mayor in exchange for his resignation. The Council accepted the agreement based on the City Attorney’s advice that ”[t]he city is strictly liable for harassment of city employees by their supervisors, and that includes the mayor.” It begged the question why that rationale did not similarly guide the Council when it voted to deprive the Mayor (i.e., the City) a legal defense. This tactic went unnoticed in news reports.

• By the time of the resignation, the developer-influenced media apparently felt so confident in its command of the events, that it abandoned deference to the voters’ policy referendum in the 2012 election. The day of the Mayor’s resignation, the San Diego Union Tribune published an editorial which argued that with the Mayor out of the way, the new leadership should double-down on the projects the Mayor opposed, e.g., the Balboa Park bypass bridge and parking garage, the Convention Center expansion (the Mayor initially opposed the deal but, after getting concessions favorable to the City, supported it), a new football stadium (the paper’s owner owns several hotels near the proposed site of both the Convention Center and the stadium), etc.

• As if on cue, interim Mayor’s Gloria’s first official act was to rescind a stop-work order issued by Mayor Filner against a controversial Jack in the Box project involving an expansion and drive-thru feature contrary to the neighborhood’s community plan and ordinance.

 Conclusion

We have come to expect, in varying degrees, news media to check bare allegations, to provide balanced perspective and analysis, and to consider different points of views and angles. This did not happen in the Mayor Filner matter except in some of the smaller alternative publications. Was it simply incompetence? The pedigree of the offending news outlets suggest otherwise.

The net result of the ordeal was that the public referendum on the direction of the City embodied by the 2012 election was overturned without a vote of the public, in a deal made behind closed doors, with no public scrutiny or informed debate, and with no likely remedy in the special election.

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** San Diego Reader and San Diego Free Press (and its sister paper the OB Rag) proved the exception, but unfortunately were drowned out by the mainstream news outlets

Bill Adams is the founder and chief editor of UrbDeZine. He is also a partner in the San Diego law firm of Norton, Moore, & Adams, LLP. He’s been involved with land use and urban renewal for 20 years, both as a professional and as a personal passion. He has held several volunteer positions involving the redevelopment of downtown San Diego. His areas of emphasis are:  Landuse law, Employment law, Hospitality industry law, and Pension & retirement plan investment law.