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LIEBERT CASSIDY WHITMORE

A PROFESSIONAL LAW CORFORATION

Los ANGELES I FRESNO I SAN FRANCISCO

2010 MAR -8 PH 2: \ 2
6033 WEST CENTURY BOULAR, SUITE 500
Los ANGELES, CALIFORN 9005
T: (310) 981-200 F: (310) 337-0837

RKISLER0!LCWLEGAL,COM
March 3, 2010 (310) 981-2070
CiTY COI'~JCP
vJ(~ ,,1-
ATTORNEY CLIENT CONFIDENTIAL COMMUNICATION

VIA U.S. MAIL AND E-MAIL: COUNCIL(!CITYOFENCINITAS.ORG

Honorable Mayor and City Council

City of Encinitas
505 South Vulcan Avenue
Encinitas, CA 92024

Re: Opinion Letter re Councilinember Barth's Complaints of Harassment

(ATTORNEY CLIENT CONFIDENTIAL COMMUNICATION)
Client-Matter: EN020-00l

Dear Councilmembers:

Given a conflict of interest, the City Manager and City Attorney have directed that this
firm provide an opinion as to whether or not City of Encinitas Councilmember TeresaBarth's
("Barh") complaints of "verbal harassment," allegedly resulting from fellow Councilmembers'
comments in newspaper articles, rise to actionable claims of violations of state or federal law, or
violations of internal City of Encinitas ("City") rules or policies. In connection with this.
analysis, we opine as to whether Barh, as a councilmember, is considered an "employee" of
the
City, and whether an elected offcial is legally to be free from criticism or ridicule from fellow
Councilmembers. We also analyze whether Councilmeniber Dan Dalager's ("Dalager")
behavior, as alleged by Barth, could be considered actionable sexual harassment under State and
or Federal law.

It is our opinion that Barth's complaints about the comments made in the newspapers and
Councilmember Jerome Stocks' ("Stocks") comments in his email to Phil Cotton amount to
claims for lack of civility in the workplace, which is not a legally protected right, especially as to
a public figure and elected official such as a City Councilmember. Her claims as to verbal
harassment are baseless from a statutory standpoint. Further, Barth's claim that she is a City
"employee" is also unfounded. In regard to Barth's claims of sexual harassment related to
allegations of Dalager behavior, we would not taking any further action as Barth has not made a
prima facie showing of sex harassment having been committed by Dalager.

I. QUESTIONS PRESENTED
a) Do Barth's complaints of "verbal harassment" articulate possible violations of
state or federal law or internal City rules/policies?

391840.2 EN020-o01 ww.1cwlegal.com

Mr. Glenn Sabine
March 3, 2010
Page 2

b) Does violation of the City's code of ethics give rise to a state or federal law claim
of harassment?

c) Are elected City Councilmembers considered "employees" under Californa law?

d) Did Councilmember Dalager's alleged comments about women and alleged

inappropriate touching of women in the workplace constitute statutorily
actionable sex harassment?

II. SHORT ANSWERS

a) No. The comments allegedly made by Stocks and Dalager about Barth in the two
newspapers would be considered protected political commentary. Stocks'
comments in his email to Phil Cotton do not amount to harassment. Barth, as a
public figure and elected offcial, cannot bring a claim for verbal harassment
against the City or the subject Councilmembérs because the comments were not
unlawful or violative of any state or federal statutes or City rules.

b) No. Violation of a City policy entitled "Code of Ethics," (approved 09/89 as

number P025) does not give rise to a valid claim of harassment under state or
federal law. (Regardless, LCW does not suggest that the "Code of Ethics" was
violated in any case.)

c) No. The meaning of "employee" depends on the context. While City

Councilmembers may be treated as employees for tax purposes, they are not
employees under California law. There is no statute stating that Councilmembers
are employees, even though Councilmembers are treated as employees for
purposes of withholding income tax, for example.

d) Based on our analysis, it does not appear that Dalager's conduct was severe,
pervasive, or repeated. Barth has not stated a prima facie case ofDalager's
alleged sexual harassment under the FEHA or Title VII. Thus, we do not
recomm~nd taking any investigative action on the allegations pertaining to
Dalager.

III. FACTUAL BACKGROUND

On Tuesday, December 8, 2009, the Encinitas City Council voted 3-2 to appoint Maggie
Houlihan Deputy Mayor instead of Barth, following Stocks' motion to pass over Barth for the
position. On December 11,2009, the San Diego Union Tribune reported on the City Council's
vote, as did the Coast News on December 18,2009. Both articles quoted Stocks as saying that
he was sending a message to Barth that she had angered the Council majority with personal
attacks and a lack of leadership since being elected in 2006. Further, Barth believes the Council
vote was orchestrated by Dalager to punish her for criticizing the City staff in January 2009
when 11 trees were felled in Orpheus Park without public notice. Barth cites to a January 31,
2009 email in whichiDalager implied he would not support Barth for mayor.

391840.2 EN020-001
Mr. Glenn Sabine
March 3, 2010
Page 3

On December 11,2009, Barh lodged a complaint (memorialized in an email) with both

City Manager Phil Cotton and City Attorney Sabine. Barth's complaint is brief and reads
verbatim as follows:

"Subject: December 11 Union Tribune Aricle

Phil and Glenn,

Jerome's comments about me in this article clearly show that the actions taken on
Tuesday night 12/8 were punitive with the intention to threaten and/or intimidate
me and create a hostile work environment.

This behavior is classified under California law as verbal harassment. This is a

complaint of harassment and you have both been officially notified."

Upon receipt ofthis complaint, and recognition of a conflict of interest existing, the City
Manager and City Attorney contacted Liebert Cassidy Whitmore and directed that LCW provide
its opinion as to assessing Barth's complaint from a standpoint of applicable law. This offce
suggested conducting an interview of Barth by a neutral third pary investigator, to fully explore
the precise nature and scope of Barh's concerns.

On January 6,2010, an interview of by licensed private investigator

Barth was conducted

Ed McErlain of Norman A. Traub & Associates. At the time of the interview, Barth submitted a
written synopsis of her complaints and claims, dated Januar 6,2009. A review of Barh's
memorandum and the interview transcript reveals that Barth expanded her complaints to include
"verbal harassment," "hostile work environment" and "retaliation" based on her rights as a
claimed "City of Encinitas employee." Barh claims the City's "zero tolerance" policy against
harassment was violated as well as was California law AB 18251. Additionally, Barh claims the
City violated the FEHA which prohibits harassment and retaliation in the workplace.

Barth maintains that the conduct attributed to Councilmembers Stocks and Dalager
violated her rights as a City employee. A review ofthe Barth interview transcript reveals Barth's
beliefs that Stocks' comments reported in the Union Tribune and the Coast News were in
retaliation for her previous actions on the CounciL. She claims Stocks' comments "crossed the
line from political disagreement to verbal harassment with the intention to intimidate and
discourage (Barth) from future efforts to protest inappropriate, ilegal or wasteful city
governent actions," and that Stocks' comments were intended to demean her and question her
integrty. Stocks' alleged comment that he was angr about the way Barth behaved as a
Councilmember has allegedly made Barth fear for her personal safety when in the presence of
Stocks. Barth claims Stocks' motion to pass Barth over for the appointment to Deputy Mayor

1 California Assembly Bil No, 1825 was enacted as Governent Code section 12950,1. Section 12950.1, inter alia,
requires an employer having 50 or more employees to provide sex harassment training to supervisors. The City has
provided timely AB 1825 training to Departent Heads and all City Councilmembers. Therefore, AB 1825 does not
relate to Barth's.complaints.

391840.2 EN020-001
Mr. Glenn Sabine
March 3, 2010
Page4

was retaliatory, and that the statements attbuted to him in the newspaper articles constituted
verbal harassment.

Barth alleges that there is a long City history of inappropriate behavior towards female
employees and members ofthe public. Barh allegedly overheard Dalager make a comment
about the attractive appearance of a female public speaker at a Council meeting. Barth also
complained ofDalager's alleged habitual and inappropriate hugging of female employees. Barth
stated that Dalager has created a hostile work environment for female employees at the City.

Following Barth's objections to the Orpheus Park tree removal, she claims Dalager
became rude, intimidating and threatening towards her. Through the email exchanges regarding
the tree removal, Barh alleges she was insulted, belittled and demeaned by both Stocks and
Dalager. Barth claims, as retaliatory, both Dalager's statement that he would never appoint
someone like Barth to the position of mayor following the Orpheus Park incident, and his alleged
orchestration of the vote to pass over Barh for mayor.

On January 21,2010, in response to an email that Stocks sent to Phil Cotton and Glenn
Sabine in which she was copied, Barh lodged another complaint (also memorialized in an email)
with both Cotton and Sabine. Stocks' January 21,2010 email reads verbatim as follows:

"Subject: Direction to staff

Phil and Glen,

I was taken aback last night when Council Member Barth made a direct verbal
command ordering Mr. Shields to take an action. From the nature of his response,
it seemed that he was as well. Mr. Shields is not only not the City Manager, he is
not even a Dept head. Furthermore, Ms. Barth is not the entire City Councilor
the City Manager, she is but one of the five members of a City CounciL.

To my knowledge, no Council Member has ever done this before, and frankly it
seems inappropriate for a single Council Member to direct a staff member, and.
thus taxpayer dollars as payroll, on their own in this way.

Please help me understand if this was or was not an acceptable action on the part
of the Council Woman.

Thank you,'

Jerome Stocks"

Barth's second complaint in response to the above email is brief and reads verbatim as
follows:

"Subject: FW: Direction to staff - Re: Teresa Barth Harassment Complaint

391840.2 EN020-001
 Mr. Glenn Sabine
March 3, 2010
Page 5

Phil & Glenn,

I do not believe that asking a staff member to make a phone call is out ofline nor
a waste of taxpayer dollars.

I find that Mr. Stocks' accusatory email is another attempt to intimidate me and
creates a hostile work environment.

I have copied Ed McErlain the investigator assigned to review my complaint."

The City contacted this office on January 21,2010 and asked that we include an analysis
ofBarth's second complaint in this opinion letter. The concepts discussed below are equally
applicable to the second Barth complaint.

iv. LEGAL ANALYSIS

A. Do Barth's Complaints of "Verbal Harassment" Articulate Possible
Violations of State or Federal Law or Internal City Rules/Policies?

1. If True, Do Councilmembers Stocks' and Dalager's Comments

Amount to "Verbal Harassment" of Barth in the Workplace?

Barth alleges that Stocks' comments, which were reported in the two newspapers, and in
the January 21,2010 Stocks' email, would be considered behavior "classified under California
law as verbal harassment." Presumably, Barth is claiming that Stocks' and Dalager's comments
have created a hostile work environment for Barth.

The California Fair Employment and Housing Act, Governent Code section 12940 et.
seq. ("FEHA") makes it unlawful for any employer or person to harass, based on race, religious
creed, color, national origin, ancestry, physical disability, mental disability, medical condition,
. marital status, sex (which includes gender), age, or sexual orientation, an employee, an applicant,
or a person providing services pursuantto a contract.2 (Gov. Code § 12940, subd. (j)(I); Lyle v.
Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277 (42 Cal.Rptr.3d 2).)
However, the FEHAand Title VII only apply to "employees." (Mendoza v. Town of Ross (2005)
128 Cal.AppAth 625 (27 Cal.Rptr.3d 452), 42 U.S.c.A. § 2000e(f); Gov. Code § 12900 et seq.;
Cal.Code Regs., title 2, § 7286.5(b), Shephard v. Loyola Marymount Univ. (2002) 102
Cal.AppAth 837,842, 125 Cal.Rptr.2d 829 ("In order to recover under the discrimination in
employment provisions ofthe FEHA, the aggrieved plaintiff must bean employee.")) Here, as
discussed in greater detail below, Barth is not considered an employee ofthe City. Therefore,
the FEHA and Title VII do not apply to her specifically.

2 The FEHA is the state equivalent of

Title VII of the Civil Rights Act of 1964, 42 U.S.c. section 2000e, et seq,
Title VII is the federal law that prohibits discrimination, harassment and retaliation in the workplace.

391840.2 EN020-001
Mr. Glenn Sabine
March 3, 2010
Page 6

The Fair Employment and Housing Commission has authority to promulgate regulations
to interpret and implement FEHA. (Gov. Code § 12935, subd. (a).) In California Code of
Regulations section 7287.6, subd. (b)(1), the Commission has defined harassment as:

verbal harassment, such as epithets, derogatory comments or slurs (or repeated

romantic overtures, sexual conients and jokes or pryng into one's personal
affairs);

physical harassment, such as unwanted touching, rubbing against someone,

assault and physical interference with movement or work; or

visual harassment, such as derogatory caroons, drawings or posters, lewd

gestures or leering.

There are two types of harassment: hostile work environment and quid pro quo.3 To
establish a hostile work environment claim of harassment, an individual must show that: (1) he
or she was subjected to verbal, visual or physical conduct of a harassing nature because of any
protected status;4 (2) the conduct was both subjectively and objectively unwelcome; and, (3) the
conduct was suffciently severe or pervasive to alter the conditions of the employee's working
environment so as to create an abusive working environment.5

The harassment must be such that a reasonable person in the plaintiffs position,
considering all of the circumstances, would consider it hostile or abusive. (Lyle, supra, 38
Ca1.4th at 284.) This ~tandard generally requires a "concerted pattern of harassment of a
repeated, routine, or it generalized nature." "Occasional, isolated, sporadic, or trivial" acts are
generally not suffcient to establish liability. (!d. at 283.)

A review of the December 11, 2009 Union Tribune aricle, the December 16, 2009 Coast
News article and the January 21,2010 Stocks' email, do not appear on their faces to present the
taking of any type of action based upon any of the protected classes described in Governent
Code section 12940. In a phone interview prior to publication of the Union Tribune article,
Stocks allegedly stated that he was sending Barth a message that she has angered the Council
majority with personal attacks and a lack ofleadership since being elected in 2006. Stocks also
stated that "Teresa has accused the City and the City Council of violating the law on numerous
occasions" and "she has never said she was wrong or apologized." Barth also alleged in her
January 6, 2010 interview that Dalager' s following statement amounted to verbal harassment: "I

3 "Quid pro quo" is Latin for "this for that." In the context of sexual harassment, quid pro quo harassment occurs
when submission to sexual conduct is explicitly or implicitly made a condition of a job, a job benefit, or the absence
of a job detriment. Thus, the accused harasser must be in a position to affect the accuser's employment
(i.e., a supervisor). This form of harassment can include sexual propositions, unwarranted graphic discussion of
sexual acts, or commentary on the employee's body. Barth's complaints do not involve claims of quid pro quo
harassment.
4 Lyle v. Warner Brothers Television Productions (2006) 38 Ca1.4Ih 264 (42 Cal.Rptr.3d 2).
5 Ellson v. Brady (9th Cir. 1991) 924 F.2d 872; Fisher v, San Pedro Peninsula Hasp. (1989) 214 Cal.App.3d
590,608 (262 Cal.Rptr,842, 851), review denied,

391840.2 EN020-001
 Mr. Glenn Sabine
March 3, 2010
Page 7

will NEVER vote to appoint into that position anyone who does not have the competency to
work through the system to obtain their goals, and instead spends their time fueling Chinese fire
drills and planting discord, solely to keep the spotlight on themselves." Barth believes that this
statement was directed at her, although Da1ager did not identify to whom he was allegedly
referrng.

It does not appear, and Barh does not allege, that Stocks' or Dalager's comments or the
January 21,2010 Stocks' email, could be construed as harassing her on the basis of her race,
religious creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, martal status, sex, age, or sexual orientation. Therefore, based on Stocks' or
Dalager's alleged comments, Barh has not met the first element for a legitimate claim of
harassment under the FEHA. The inquiry thus ends.

Encinitas Administrative Manual Policy

Parenthetically, it is also noted that the City of

No. P024 concerning "Harassment," states the City policy to be one of establishing a, ". . . strong
policy prohibiting harassment, and to establish procedures for regular and reserve employees and
job applicants who feel they have been subjected to harassment to pursue their complaints." A
review of Policy No. P024 indicates that it is modeled after Governent Code § 12940, in that
the type of conduct that it prohibits, is misconduct based upon protected statuses such as race,
religious creed, etc. Thus, (and also because the policy impacts employees and job applicants
only) it similarly does not appear that Barth's December 11, 2009 or Januar 21,2010
complaints implicate the City Administrative ManuaL.

2. Can Political Commentary or Criticism of an Elected Offcial be

Considered "Verbal Harassment?"
Barth, as an elected City Councilmember and public figure cannot validly claim she was
a victim of verbal harassment as a result of the political commentar allegedly made by Stocks or
Dalager in the newspaper articles. Stocks and Dalager, although fellow Councilmembers, are
members of the public which may comment on or criticize the actions of those elected to office.

The public possesses an "independent interest" in the qualifications and performance of

its public officials. (McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 859 (231 CaL.Rptr. 518))
Accordingly, debate on public issues "may well include vehement, caustic, and sometimes
unpleasantly shar attacks on governent and public officials." (New York Times Co. v.
Sullvan, (1964) 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686.) "When a candidate
enters the political arena, he or she 'must expect that the debate will sometimes be rough arid
personal, ...' " (Harte-Hanks Communications, Inc. v. Connaughton (1989) 491 U.S. 657, 109
S.Ct. 2678,2695, 105 L.Ed.2d 562). An elected official cannot "cry Foul!" when an industrious
reporter attempts to establish that he or she has less than sterling integrty. (Harte-Hanks
Communications, Inc. v. Connaughton, supra, 109 S.Ct. at p. 2695). "Indeed, nothing is more
alien to our national tradition than the notion that those in positions of public trust and authority
are above criticism and must, at any price, be afforded the smiling admiration of the people."
(Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172, 183 (264 Cal.Rptr. 699).

391840.2 EN020-001
 Mr. Glenn Sabine
March 3,2010
Page 8

Barh has failed to make a prima facie claim of "verbal harassment" resulting from the
Councilmembers' reported newspaper comments. Likewise, Stocks' Januar 21, 2010 email
inquiry is reasonably viewed as the very type of debate sanctioned by the courts as being
appropriate. Stocks' and Da1ager's allegedly harassing coInents are not actionable and do not
law.
violate any state or federal

B. Does Violation of the City's Code of Ethics Give Rise to a State or Federal
Law Claim of Harassment?

City of Encinitas Administrative Manual Policy No. P025 "Code of Ethics" states that,
"It is the intention of the City to develop and ensure the highest standards of professional
conduct in its employees." Policy No. P025 sets forth methods by which City employees should
comply with the Code of Ethics: "A high standard of dignity and worth should be reflected in the
services rendered by the City.. .," and "it is necessar to maintain a dedication to the highest
ideals of honor and integrty."

However, and as indicated below, Barh is not an employee as that term is used in P025,
and the section is inapplicable to her. Also, and as indicated above, the civility that is necessary
for a proper fuctioning of the workplace, is not the standard of behavior which governs the
interaction of those who, as in this case, voluntarily enter the political arena. P025 has no
application to the issues raised by Barth. In fact, the cases indicate that ifP025 was applicable to
the Barth complaints, the public would be denied the vigorous and free exchange of views to
which it is entitled when assessing the performance of its elected officials.

Finally, and as regards Barth couching her complaints as "harassment," the United States
Supreme Cour has stated in Burlington Northern & Santa Fe Railway Company v. White, that
the federal Title VII.(a counterpart to the FEHA) is not to be used as a "general civility code for
the American workplace." (Burlington Northern & Santa Fe Railway Company v. White (2006)
548 U.S. 53, 58.) In Faragher v. City of Boca Raton (1998) 524 U.S. 775, 787, the Cour also
held that discourtesy and rudeness should not be confused with harassment. Therefore, even
though a City code or policy may require mutual respect and civility among co-workers or
Councilmembers, failure to comply with such an internal policy does not give rise to a state or
federallaw claim of harassment in the workplace.

391840.2 EN020-o01
 Mr. Glenn Sabine
March 3,2010
Page 9

C. Are Elected City Councilmembers Considered "Employees" under

California Law?

City Counci1members are not employees under California law. There is no statute
providing that Councilmembers are employees, even though Counci1members are treated as
employees for purposes of withholding income tax, for example.

1. Limited Contexts in Which Elected Officials are Treated as

Employees

There are statutes that treat elected officials as employees for the purpose of the specific
statutory scheme. For example, under both California and federal law, elected officials are
considered employees for tax withholding puroses. (See 26 U.S.c. § 3401(c) and CaL. Un. Ins.
Code § 1279.) Thus, payroll taxes must he withheld from officials' salary. Elected officials and
Councilmembers working in their official capacity are also employees for the purpose of
obtaining workers' compensation coverage. (CaL. Labor Code § 3351.)

However, these definitions are purosely broad and are intended to cover a wide range of
employees. Tax laws are intended to bring revenue to the state and are intentionally inclusive.
Similarly, the purpose of workers' compensation insurance is to provide henefits to injured
workers.

2. Contexts in Which Elected Offcials are Not Treated as Employees

Notwithstanding the above statutes, elected officials are specifically excluded from the
definition of"employee" in many instances. For example, the federal ADEA definition of
"employee" specifically excludes elected officials, as does Title VII (29 USC § 630(f); 42
U.S.C.A. §2000e(f)("employee" shall not include any person elected to public office in any State
or political subdivision of any State by the qualified voters thereof. . .)).

Elected officials are also not considered employees under the Brown Act. Governent
Code section 54957 excludes elected officials from the definition of "employee." Section 54957
grants an exception to the Brown Act's requirement of holding open sessions for personnel
matters. The public entity may discuss personnel matters involving employees in closed session
unless the employee requests an open session. However, section 54957(b)( 4) states that
employee "shall not include any elected offciaL."

From 1976 through 1993, the definition of "employee" only excluded "persons appointed
to an office by the legislative body of a local agency," except for specified nonelective positions.
The Attorney General found that despite this apparent different treatment of appointed and
elected officials, the legislature meant to treat all officials as excluded from the definition of
"employee." (59 CaI.Opp.Atty.Gen. 266.)

Furthermore, California Governent Code § 36501 provides that the governent ofa
general law city is vested in: (a) a city council of at least five members, and (f) any subordinate
officers or employees provided by law. It can be seen that the Governent Code distinguishes

391840,2 EN020-001
 Mr. Glenn Sabine
March 3, 2010
Page 10

between elected City Councilmembers and on the other hand, individuals who are employees.
Thus, it canot be said that statements attbuted by the Union Tribune and the Coast News to
Stocks and Dalager, were statements made in their capacity as an employer and/or directed
towards Barth in her capacity as an employee. (Additionally, City Muncipal Code § 12.01.060
does not define councilmembers as "employees.")

3. Barth, as a City Councilmember, is Not a City Employee

In significant ways that define an employment relationship with a public agency, Barh is
not a City employee. Barth is retired from full-time employment and performs her duties as a
Councilmember on a limited monthly basis. She does not hold any tenured or permanent status
and is not subject to the evaluation processes applicable to employees. She is an elected official
and holds her position until another candidate replaces her.

D. Did Councilmember Dalager's Alleged Comments about Women and

Inappropriate Touching ofWomen in the Workplace Constitute Statutorily
Actionable Sex Harassment?
Barth alleges that there is a long history at the City of inappropriate behavior towards
female employees and members of the public by Counci1member Da1ager. Barth claims to have
overheard Da1ager make a comment about the attractive appearance of a female public speaker at
a Council meeting. Barth also now complains ofDa1ager's alleged habitual and inappropriate
hugging of female employees. Barth stated during her interview, that Da1ager has created a
hostile work environment for female employees at the City.

During the January 6,2010 interview of Barth, she describes Da1ager's allegedly
harassing behavior. At the December 16, 2009 Council meeting, Darlene Hill announced her
retirement and was recognized by the City for her 30 years of service. As the Mayor was
presenting a plaque to Ms. Hill, Dalager hugged her and commented, though jokingly, that he
could hug Ms. Hil in front of everyone because he "had known her longer than her husband
had." (Interview transcript, page 24).

At the June 20, 2008 employee picnic, Barth alleges that Dalager inappropriately hugged
a nùmber of female employees. At the picnic, certain employees were receiving their 5-year and
10- year certificates and being congratulated by the CounciL. Mr. Da1ager and Mr. Bond would
hug the women and shake the men's hands. Barth claims, "it was obvious that one or two ofthe
women were very uncomfortable with it, and I even said, standing there next to one ofthe
women, if you want to file a complaint, I'll be your witness." (Interview transcript, page 25).
None of the alleged hugging victims ever filed any complaint regarding Dalager's behavior on
. that occasion, nor did Barth. .
On August 24, 2007, at the City budget workshop, Dalager allegedly made an
inappropriate comment to Cami Mattson, CEO of the San Diego North Convention and Visitor's
Bureau. Ms. Mattson spoke before the CounciL. Dalager allegedly stated from the dais, "Cami,
you can come talk to us any time you want. We always like lookin' at good-Iookin' girls."

391840.2 EN020-001
Mr. Glenn Sabine
March 3,2010
Page 11

Barh claims these "good 01' boy" and "folksy" comments are offensive and sexually harassing.
She claims other women have told her they "just hate interacting with Dan Da1ager." (Interview
transcript, page 39). However, no complaint was ever fied regarding this approximate 30 month
old matter.

Pursuant to City Administrative Manual Policy No. P024, subsection II.F concerning the
harassment complaint procedure, "an employee who believes he or she has been harassed may
fie a complaint with... the immediate supervisor, any manager or supervisor within or outside
the Deparment, the Human Resources Division, or the City Attorney." No complaints have
been fied by any City employees, pertaining to Da1ager's allegedly harassing behavior or
comments.

Even assuming arguendo that the aforementioned misconduct occurred, in

instances of

order to state a valid statutory claim for sexual harassment in the workplace resulting from
Da1ager's comments and actions, Barth would have to meet the three elements discussed above
for a prima facie showing of harassment, i.e., 1) protected status catalyst for a harassing act, 2)
unwelcome behavior, 3) severe or pervasive conduct. Here, there is no indication that Dalager's
comments or actions were unwelcome or found to be offensive by anyone but Barh. Furher,
Da1ager allegedly engaged in the behavior on three specific occasions over a two and a half year
period. Therefore, based on our analysis, it does not appear that Da1ager's conduct even if
unwelcome, was severe, pervasive, or repeated. Barth has not stated a prima facie case of
Dalager's alleged sexual harassment under the FEHA or Title VII. Thus, we do not recommend
taking any further investigation as to the allegations pertaining to Dalager. (Although a third
party can state a valid harassment cause of action even though the offensive conduct was
directed to others, the lack of a timely complaint by Barth, as well as the lack of a statutory basis
for an action, leads to the conclusion that no investigation need be taken regarding Dalager.)

V. CONCLUSION
It is our opinion that Barth's complaints about the comments made in the newspapers and
Stocks' comments in his email to Phil Cotton, amount to claims based on alleged lack of civility
in the workplace and are claims which are not cognizable as to Barth. Barth's claims as to verbal
harassment appear to be baseless. Upon entering the political arena, Barth, ". . . must expect that
the debate will sometimes be rough and personaL. . .." (Harte-Hanks Communications, Inc. v.
Connaughton, supra.) Further, her claim that she is a City "employee" is also unfounded. In
regard to Barth's claims of sexual harassment being directed to actual employees of the City, we
opine that Barth fails to state a prima facie case of harassment.

391840,2 EN020-0OJ
 Mr. Glenn Sabine
March 3? 2010
Page 12'

Based on the information provided above, we trst that this letter is responsive to your
inquiries. Please feel free to contact us with any questions. Than you for the opportnity to be
of assistance to you in this matter. . .
Sincerely,

JEO/jeo

cc: Phil Cotton, City Manager

Glenn Sabine, City Attorney

391840.2 EN020-o01