Board Says Duffy Must Pay Some Costs of Suit

For the second time in a month, San Diego County officials have decided that Sheriff John Duffy must personally pay for legal costs stemming from political activities unrelated to his official duties.

In a closed-door session Tuesday, the Board of Supervisors voted not to defend or indemnify Duffy against certain allegations contained in a lawsuit filed by lawyer Michael Aguirre in connection with a campaign mailer in which the sheriff attacked Aguirre during his unsuccessful San Diego City Council race last fall.

However, the board did authorize the county counsel’s office to defend Duffy against other charges in the lawsuit related to the sheriff’s use of his office’s “investigatory resources.”

Duffy, who attended the closed session, refused comment on the board’s action. But Aguirre said later that the decision “essentially leaves (Duffy) defenseless.”

“The campaign letter that he sent out is the heart of the suit and that’s where they’ve told him he’ll have to defend himself,” Aguirre said. “As far as them making a distinction between Duffy investigating me and sending out the flyer, I don’t know why they did that. But if the county wants to use taxpayer money to defend him over part of this, that’s its choice.”

Similar Position

The board’s action comes one month after the county counsel’s office decided that Duffy must personally pay the ACLU $18,804 in legal costs that it incurred while challenging his conduct during a 1985 campaign to oust then-California Chief Justice Rose Elizabeth Bird. In that instance, the county counsel’s office--in a position similar to that adopted by the supervisors on Tuesday--ruled that Duffy’s activities fell outside his official duties and that, therefore, he was personally liable for the legal expenses resulting from them.

In the lawsuit that prompted Tuesday’s action, Aguirre filed a $5-million civil claim against Duffy, claiming that his constitutional rights were violated by Duffy’s use of his law enforcement position in a political campaign. Aguirre also has filed a federal lawsuit against both Duffy and San Diego City Councilman Bob Filner, Aguirre’s opponent last November, in connection with the same incident.

Both the federal and civil suits focus on a mailer sent out on Filner’s behalf shortly before the election in which Duffy sharply criticized Aguirre and endorsed Filner. Under a bold heading saying “A Strong Warning from Sheriff Duffy,” the letter, which carried a depiction of the sheriff’s official badge, described Aguirre as lacking integrity and being a “practitioner of the BIG lie.”

The campaign flyer, Aguirre argues, represented Duffy’s retaliation for Aguirre’s efforts to scuttle the sheriff’s appointment to the President’s Organized Crime Commission in the early 1980s. In December, 1983, Duffy resigned from the commission amid controversy after Aguirre helped to publicize the sheriff’s alleged ties to organized crime figures at La Costa.

In addition to faulting Duffy for circulation of the mailer, Aguirre’s lawsuit also accuses the sheriff of “a pattern of improper or corrupt conduct” over the past 20 years, and of “improperly investigating” Aguirre for what the lawyer perceives as political purposes.

The focus of Aguirre’s lawsuit is the controversial mailer, and the supervisors’ decision Tuesday means that Duffy will have to use a private attorney to defend himself against those charges, county officials said.

Under state law, the county must defend and indemnify public officials who are sued for acts relating to their performance of their official duties. By its action Tuesday, however, the board determined that the allegations stemming from the anti-Aguirre mailer were not within the scope of Duffy’s job as sheriff.

Duffy had no comment. “I do not comment on litigation,” he said. Aguirre, however, was not so reticent.

“This is the second time that Duffy has been forced to face up to the consequences of his acts,” Aguirre said. “If he has to spend some of his own money, maybe he’ll be a little more circumspect in the way he handles himself and his position.”

The earlier ACLU lawsuit stemmed from Duffy’s distribution in February, 1985, of 18,000 anti-Bird post cards supplied by Crime Victims for Court Reform, a group that led the fight to defeat Bird in the November, 1986, election.

In a suit that drew statewide attention, the ACLU, which argued the case for Common Cause, charged that Duffy overstepped legal limits on politicking by sending a letter to deputies on county stationery inviting them to distribute the anti-Bird post cards, mailing the cards to interested citizens and using on-duty deputies to deliver the cards to substations.

Superior Court Judge Douglas Woodworth ruled in that case that while Duffy could speak out on issues “reasonably within the scope of his duty,” he and other public officials could not engage in political activities “aimed at influencing the voters” during working hours.