Judge Dismisses Lawsuit Against City Atty. Witt : Courts: Malpractice suit was filed by former planning director in wake of City Hall sex-and-money scandal.

A malpractice lawsuit against City Atty. John Witt was dismissed Friday after a judge found that Witt had no responsibility to represent a city official who lost his job as a result of a City Hall sex-and-money scandal.

Superior Court Judge Kevin Midlam ruled that Witt was acting in his official capacity and had not formed a personal relationship with former Planning Director Robert Spaulding.

Spaulding filed the complaint in the wake of a sex scandal that rocked the city administration in May, 1991. Spaulding was forced to resign when it was revealed that Witt and other top city officials had secretly negotiated a $100,000 deal to settle a sexual harassment claim filed by a Planning Department employee, Susan Bray, who was having an affair with Spaulding.

The judge found that Witt was immune from civil liability because the Government Code protects officials who are acting on behalf of the government.

“The city attorney is immune from suits arising as the result of the exercise of discretion, whether or not that discretion is abused,” Midlam wrote.

Spaulding, who was seeking an unspecified amount of compensatory and punitive damages, claimed that Witt was involved in a conflict of interest because he was attempting to represent both Spaulding as an individual and the city, and those two parties had competing interests.

But citing the City Charter, Midlam disagreed: “As a matter of law, Witt had no duty to represent Spaulding’s personal interest.”

Spaulding did not prove “that Witt acted within his official capacity as city attorney in all relevant dealings with Spaulding,” Midlam wrote. “Thus, no attorney-client relationship was created other than that between the city attorney and a city employee.”

The ruling also highlights several uncontested elements of the lawsuit: The sexual relationship was outside the workplace; Bray’s claim against the city never named Spaulding as a respondent; and Witt did not disclose the secret agreement to the public.

The State Bar ruled in January that Witt did not commit any ethical violations in the sex scandal. At the behest of Spaulding’s attorney and the City Council, the State Bar investigated Witt’s role in hiding the sexual harassment settlement from the council and also examined if he was guilty of conflict of interest for negotiating the settlement with Bray. Calling the ruling “bad law and bad public policy,” Spaulding’s attorney, Michael Aguirre, said he would appeal the decision in the next few weeks to the 4th District Court of Appeal.

“(Midlam) basically said that the city attorney can commit malpractice, and he can be exempt from liability for doing so,” Aguirre said.

“We’re turning the clock back to the day when our elected officials are kings and queens and are above the law.”

Bray also has filed suit against the city. A trial in federal court is scheduled for February.