Without actually taking a direct vote on the request, the San Bernardino City Council declined to provide the $50,000 Mayor John Valdivia had asked the city to spend to defend him personally against what currently stand as claims and are anticipated to soon turn into lawsuits based on allegations that he mistreated and/or sexually harassed former and current city employees.
Former mayor’s office employees Mirna Cisneros and Karen Cervantes as well as one of Valdivia’s current legislative field representatives, Don Smith, have lodged claims with the city citing Valdivia’s abusive behavior, which included engaging in unwanted sexual advances made toward the two women, inappropriate or sexually-tinged comments made in their presence as well as threatening all three, involving all three in activities beyond their legitimate work assignments and then engaging in threatening or abusive behavior against them when they proved uncooperative.
A claim filed against a public entity is a precursor to a lawsuit. After 45 days, if the public agency in question has not acknowledged the veracity of the claims or in some fashion made an agreement or arrangement to satisfy the individual making the claim, then the claimant is free to file a lawsuit based upon the elements outlined in the claim. The 45-day window for the city’s response to the claims filed by Cisneros and Cervantes has elapsed. It is anticipated that their attorney, Tristan Pelayes, will follow through with a lawsuit. The city is yet within the 45-day window to respond to Smith’s claim. He too is represented by Pelayes. Three others, Matt Brown, Valdivia’s chief of staff; Jackie Aboud, Valdvia’s one-time legislative field representative who was fired in January; and Alissa Payne, a city commissioner, have also alleged mistreatment by Valdvia and are represented by Pelayes. They have yet to file claims against the city.
On Wednesday, the council considered a request by Valdivia that it authorize the expenditure of $50,000 in city funds to retain an attorney separate from the law firm of Liebert Cassidy Whitmore, which has already been retained to represent the city in the face of the claims filed by, and potential lawsuits to follow from, Cisneros, Cervantes and Smith.
In response to Valdivia’s request, City Manager Teri Ledeoux, apparently in consultation with Deputy City Attorney Sonia Carvalho, generated a staff report in which two options were outlined. One of those options called for authorizing Valdivia to select an attorney and provide for a maximum hourly rate or total representation at an initial maximum expenditure of $50,000 to that attorney on his behalf; or selecting an attorney for him from the recommended list of four lawyers designated by Carvalho as equal to the task.
Curiously, Ledoux’s report did not include a third option, that being the action which the city council ultimately took, which was to simply allow the general defense the city is currently constructing for the city as a whole against the claims and possible lawsuits to suffice as Valdivia’s defense, as he falls under the umbrella of the city.
The four attorneys considered by Carvalho and featured in the report were Patrick “Kit” Bobko, who had agreed to work on the mayor’s behalf at a rate of $250 to $330 per hour; Michael Zweiback, who committed to working on the case in conjunction with other members of his firm at a “blended” rate of $400 per hour; Gerald Sauer, who was willing to work the case at a cost of $495 per hour; and Sonya Goodwin, who stood ready to go to bat for Valdivia for $450 per hour. Of note was that Valdivia had previously communicated with Zweibach directly, informing him that he was intent on having Zweibach’s firm represent him, as was indicated in an engagement letter sent to him at his city office from the firm of Zweibac, Fiset & Coleman dated March 11, 2020.
Owing to continuing precautions being taken in response to the coronavirus crisis, the meeting itself was held in a virtual format that did not involve an actual physical convocation but rather an electronic hook up in which there was an audio and visual presence for councilmen Jim Mulvihill, Henry Nickel and Fred Shorett, along with councilwoman Sandra Ibarra, City Manager Teri Ledoux and City Clerk Genoveva Rocha and some city staff members; while Mayor John Valdivia, councilmen Ted Sanchez and Juan Figueroa, Councilwoman Bessine Richard and Deputy City Attorney Sonia Carvalho participated by means of an audio connection, though at times Sanchez and Figueroa were visible on camera as well.
Before the council began its discussion of the mayor’s request, statements from members of the public who had provided audio or written input prior to the meeting were put onto the record. In a prerecorded audio statement, Tim Prince, who had backed Valdivia in his successful 2018 run for mayor, was heard referencing the “$50,000 request to hire more attorneys to handle cases involving the mayor’s intentional and negligent acts. That request should be denied. $50,000 won’t begin to defend the mayor’s indiscretions. The mayor has been very open, and has bragged more times than I can count about his ability to raise money. So, he should raise money for his defense from all his liquor store, importer and other undesirable business interests that can fund the mayor’s defense. This city is $5 million under water. We should not spend our reserves on defending this failed mayor.”
A statement from Luis Ojeda was read into the record by Councilman Sanchez.
“I do not believe the residents of San Bernardino should have to pay the legal costs of defending Mayor Valdivia,” Sanchez quoted Ojeda, continuing, “Mr. Valdivia through his own negligence and reckless behavior has invited many of the claims against him. The money can be better spent on more pressing issues in our community. The mayor has bragged in the past about being able to raise large amounts of money. This is a good time for him to put those skills to work for him.”
Tressy Capps was heard in an audio recording, saying, “I don’t think the residents of San Bernardino should be on the hook for his behavior.”
Because the item related directly to Valdivia, he did not participate in the discussion of the matter, and Sanchez, who is serving in the capacity of mayor pro tem, chaired that portion of the meeting.
A consideration for the council was that by having the city fund Valdivia’s defense, it would put the city in the position of having to pay any settlement or judgment against Valdivia as a consequence of the suit. According to Ledoux’s report, “A public entity’s duty to defend is not unconditional. If there is an issue whether an employee was acting outside the scope of employment, it is in the best interest of the public entity to provide for the defense of the employee, but it may do so under a reservation of rights. If a public entity provides a defense for its employee, or former employee, without reserving its rights against him or her, and the employee reasonably cooperates in good faith in the defense of the action, the entity has an absolute duty to pay the judgment or any compromise or settlement to which it agreed. (Gov. Code § 825(a).) The entity may have to pay even if the judgment established that the employee was not acting within the scope of his or her employment at the time of the tort. The public entity may condition an agreement to conduct the defense for an employee or former employee on the employee’s consent to a reservation of the entity’s right ‘not to pay the judgment, compromise or settlement until it is established that the injury arose out of an act or omission occurring within the scope of his employment [by] the public entity.’ (Gov. Code, § 825(a).) When so agreed, the entity’s duty to pay arises only when the requisite fact is established.”
Almost immediately upon Sanchez opening the floor for discussion, Ibarra said, “I move that we reject providing legal representation for the mayor.”
“I will second that,” said Sanchez.
At that point, Councilwoman Richard, who with Figueroa remains as one of the last two members of the council yet politically aligned with the mayor, said, “I just want to know why you guys want to do that when we already talked about this. We talked to the city attorney about what to do. She brought it back to us and all of a sudden there’s a rejection. This should not be emotional. This should be based on fact. He has the legal right to have representation. If you guys were all in the same position, you guys would want the same, and some of you guys have been in a certain position – not a position of allegations about sexual whatever or the same ones that he was in – but there’s certain people that have been involved and they needed representation and they asked for it. By law, being a city employee, we are obligated to give him representation, whether it be the people the city attorney brought forth or the city attorney themselves. So we need to think about it, and think about it long and hard. If that is that way you guys want it to be, you should have said that in closed session.”
Ibarra then cited Government Code § 815 3B, which, she said, holds that in cases involving sexual harassment or corruption allegations against a public official, the governmental entity with which the person accused is affiliated is not obliged to defray the cost of legal representation. “Under that government code, we do not have the obligation to represent him legally,” Ibarra said.
Deputy City Attorney Carvalho said, “The issue of whether the city council has a duty to defend is a factual question that’s provided for in the government code. That duty to defend is not absolute. There are exceptions to that, and we have discussed those exceptions, and some of those exceptions are set forth in your staff report, including whether that individual has been acting within the scope of their employment, including whether the city asked for a reservation of rights agreement, and finally whether the individual acted with malice or fraud or intent similar to that.”
Councilman Shorett said, “The fact of the matter is… we do have an obligation to provide legal representation in this particular case. We do not, however, have to hire a special or outside attorney, or expend any extra money. So my motion would be simply that Mayor Valdivia gets lumped in with all the rest of us with the current city attorney providing legal services for all of us, the city, including any employees who are involved, at least for the time being. In other words, we do have to provide legal service and representation, but we do not have to hire a special or more expensive or a separate attorney for that particular employee. So my motion would be, simply, that we not hire any of the suggested attorneys, but that the mayor in this case just be lumped in with the representation by our city attorney staff to do what we need to do to go through this process.”
Shortly thereafter, Councilman Henry Nickel said, “I move to table this item. If it’s already under the authority of the city attorney, why are we even considering it? Let’s just table it.”
In American parliamentary procedure, tabling an item means to postpone or suspend consideration of the matter.
When the vote to do so was initially taken, Sanchez, Shorett and Nickel voted to do so, but Ibarra, Figueroa, Richard and Mulvihill were opposed.
Figueroa’s and Richard’s rationale was different than those of Ibarra and Mulvihill.
Ibarra wanted to pursue having the council vote to not fund Valdivia’s legal defense altogether. She demonstrated that when she cited yet another element of the Government Code, this time § 995.2, which she said would justify leaving Valdivia on his own to construct a defense of his actions. “Based on the allegations that have come out, without us having the results of the investigation, which is beyond the 45 days [following the lodging of the Cisneros and Cervantes complaints], we need to be very careful of what we are voting on right now,” Ibarra said. “That’s why I’m voting no. If we have the opportunity to deny the legal representation, especially when it’s been only one of us that’s been named in a lot of these allegations, I don’t think that’s something the city should be paying for.”
Mulvihill wanted an opportunity to discuss the matter further.
Figueroa and Richard were in favor of having the city defray Valdivia’s defense costs.
After some brief further discussion, Mulvihill indicated he wanted to withdraw his vote against tabling the matter. Nickel motioned that the proposal to pay $50,000 toward Valdivia’s defense be tabled and Shorett seconded it. It then passed with Sanchez, Shorett, Nickel and Mulvihill prevailing.
-Mark Gutglueck