(courtesy photo)

City employee lawsuit costs soar to $90.7 million

Since January 2007 San Franciscans have paid $90.7 million in costs for lawsuits filed by city employees.

Back on April 15, 2013 San Francisco Examiner reporter Chris Roberts published an article reporting $11 million in settlement payouts to city employees had been awarded by the City Attorney’s Office (CAO) in 103 prohibited personnel practice lawsuits.

The term “prohibited personnel practices” refers to activities banned by existing federal, state, and local laws as unlawful for things like under-payment of compensation and behavior involving sexual harassment and sexual discrimination, sexual orientation discrimination, racial discrimination and harassment, age discrimination, disability discrimination, wrongful termination, and other illegal practices.

The $11 million Roberts initially reported was subsequently confirmed to be higher — at least $12.1 million — due in part to CAO under-reporting of settlement awards. But that didn’t include the substantial costs of city attorney time and expenses fighting the lawsuits.

For his part, San Francisco Examiner reporter Joe Fitzgerald Rodriguez reported on December 25, 2016 that Muni drivers were on target to earn a $8 million settlement because the MTA had failed to properly pay drivers overtime in violation of the California Labor Code and San Francisco’s Minimum Wage Ordinance. Drivers were required to clock in at one bus yard and then travel unpaid to a second location to pick up their assigned buses.

Rodriguez couldn’t have known in December 2016 it would take the CAO until February 28, 2018 to officially close the drivers’ lawsuit before eventually revealing a year later on February 4, 2019 in response to a public records request that the CAO had spent an additional $746,970 in city attorney time and $1,884,989 in attorney expenses — the latter of which potentially included forensic accounting work by Rust Consulting, a third-party administrator, to determine how much each driver was owed. The CAO expenses totaled $2.6 million in addition to the $8 million settlement approved by MTA’s Board, for a total cost of $10.6 million for a single lawsuit.

Since Roberts’ article in 2013, 359 settlement awards authorized by the CAO, the Board of Supervisors, and other City boards and commissions authorized to settle lawsuits on behalf of the City have climbed from $11 million to $43.3 million, a 293.6 percent change increase in settlement awards alone. Another 102 lawsuits filed by City employees aren’t aren’t yet settled.

Add on $47.4 million in City Attorney time and expenses to settle the first 359 lawsuits, pushing total costs to $90.7 million to date.

Of the 359 lawsuits settled to date, 283 were in the top seven categories of prohibited personnel practices that cost $77.7 million (85.5%) of the $90.7 million total. Combining settlements awarded with CAO time and expenses, the top seven categories included 57 wrongful termination lawsuits that cost $20.3 million; 55 racial discrimination lawsuits that cost $14.7 million; 51 disability discrimination lawsuits at $8 million; 14 sexual discrimination lawsuits at $5.7 million; 21 sexual harassment lawsuits at $5.2 million; 16 compensation (wage-related) lawsuits at $14.1 million, including the Muni driver’s lawsuit; and 69 “other actions” lawsuits at $9.4 million.

On December 13, 2018 both the U.S. Senate and House of Representatives unanimously passed legislation to reform how sexual harassment lawsuits are handled on Capitol Hill — including holding lawmakers liable for paying for sexual harassment and retaliation settlements from their own pockets, rather than having U.S. taxpayers foot the bills.

During recent hearings to expand the City’s existing sexual harassment prevention training ordinance to cover all forms of harassment against City employees, the Board of Supervisors were urged to pass similar legislation requiring City employees found guilty in a court of law of harassing other employees to pay settlement costs out of their own pockets. It would be the surest and fastest way to stop the harassment if perps knew they’d have to pay the settlements themselves.

Such behavior would stop almost instantly. Unfortunately, the Board of Supervisors turned a cold shoulder and failed to introduce language requiring defendants to pay settlements themselves.

As Roberts noted in his 2013 Examiner article, statewide legislation to make workplace bullying illegal had no sponsors, and legislation was never introduced. It still hasn’t been introduced.

Burning $90.7 million — and counting — of taxpayer funds in San Franciscans’ back yards is unconscionable. How long will discrimination, bullying, and harassment of city employees be ignored by City Hall?

Patrick Monette-Shaw is a columnist for San Francisco’s Westside Observer newspaper, and a member of the California First Amendment Coalition (FAC) and the ACLU. An expanded version of this op-ed is available at the Westside Observer.

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