As reported first on CityBeat's blog, Lastblogonearth.com, a lawyer for Assistant City Attorney Karen Heumann has demanded a retraction from the San Diego Union-Tribune. Heumann wants the U-T to take back the assertion made in an Oct. 10 editorial, written by editorial page editor Bob Kittle, that City Attorney Mike Aguirre broke city law when he accepted contributions from a handful of his employees (Heumann included) to help retire his debt from his 2004 campaign.A demand for a retraction is the first step an aggrieved party must take before filing a libel lawsuit--that is, if the party wants to walk away with a big sack of money for damages. Libel, in simple terms, is making a false claim in writing that ravages a person's reputation.It's an interesting case that could conceivably deliver a monster blow to Kittle's standing in San Diego and an unwelcome blow to a struggling newspaper's bottom line. But it won't be an easy win for Heumann and her colleagues (a source in the City Attorney's office told me that two more demands for retraction have been sent to the U-T, and a third will be sent soon, but the source declined to identify the senders).The U-T's first line of defense is the truth. If it's true that Aguirre broke the law, the paper wins. Then there's the matter of whether or not Heumann is a public figure. Public figures must clear a higher hurdle than average citizens when it comes to defamation claims. As a public figure, Heumann would not only have to show that Kittle was wrong and that his error damaged her reputation, but also that he acted with actual malice--that is, he knew he was wrong when he wrote the editorial--or with a reckless disregard for the truth. It would be difficult to prove that Kittle knew he was wrong, so perhaps that's why Heumann's attorney, Karen Getman, in her demand, wrote (twice) that the U-T acted in a “reckless” manner when Kittle failed to do the research that would have led him to a different conclusion. A judge would probably consider Heumann a public figure--she at times is covered in the media, stands in for Aguirre at some public meetings and ran for state Assembly in 2004.But why is Heumann suing? She wasn't the target of Kittle's editorial. Aguirre was. Getman lays the foundation for this in her demand letter, noting that her client is a high-level attorney for the city, and that participating in a violation of law wouldn't say much for her legal prowess or her integrity. She also cites Kittle's insinuation, based only on timing, that Heumann and others received raises in exchange for their generosity.So, the big question: Was Kittle wrong. The answer: Maybe. Kittle based his assertion that Aguirre broke the law on language in the City Charter--the city's constitution--that essentially says city officials may not solicit or accept anything of value from their employees. The charter provision was aimed at combating bribes in exchange for employment. So, if there's a rule that Aguirre can't accept anything of value from employees, then Kittle was right.
However, acceptance of campaign contributions from employees has been addressed by the California Supreme Court and, consequently, in state and local law since that charter provision was written, Getman noted in her letter. The court ruled in the 1960s that telling public employees whom they can't contribute to violates their First Amendment rights. In 1979, the state amended its laws to allow employees to contribute to whomever they please, but it held on to a ban on public officials soliciting contributions from employees.Prompted by the change in state law, the city in 1979 sponsored a successful ballot measure to change two sections of the City Charter that related to the political activities of city employees. The measures limited restrictions on employees' political activities to working hours and removed completely the ban on officials soliciting contributions from employees. Later, the city passed the Ethics Ordinance, which mirrored the state's law banning city officials from soliciting donations from their employees but, as Getman noted, “explicitly ‘does not prevent City employees from making contributions to City candidates.'”The thing is, the two charter sections that the city amended in 1979 are not the ones Kittle cited. The sections Kittle cited had nothing to do with campaign contributions, per se. Again, Kittle based his opinion on sections dealing with bribes for employment. However, that doesn't mean they absolutely don't apply in this situation. A court will have to determine that. Those sections, which were written in 1931, probably should have also been amended in 1979, as well, but imagine the complicated ballot language when you start talking about amending four charter sections. The more complicated the ballot measure, the worse its chances for passage.Complicating matters is Aguirre aide Jeff Van Deerlin's Oct. 11 acknowledgment to voiceofsandiego.org that he talked to Heumann and another employee, who later contributed, about the financial needs of Aguirre's campaign. In the eyes of the law, can Van Deerlin be considered a stand-in for Aguirre? Getman says no. She argues that the law specifically targets pressure exerted personally, by the boss, on the employee.In any case, Kittle could not have known about Van Deerlin's conversations when he wrote his editorial. All he seemed to know is that some of Aguirre's employees had contributed to his campaign, that some of them received raises subsequent to their contributions and that there is a charter section that doesn't allow trades of gifts for employment. Getman is arguing that had he done any research at all, he would clearly see that there was no violation of law, and that because he didn't do that research, he recklessly defamed Heumann--who, if she decides to run for office again, could be saddled with the assertion that she helped break a law.Kittle was, at the very least, careless. The first sentence of his editorial is false: “To prevent San Diego officials from leaning on their subordinates to contribute to their election campaigns, the city charter explicitly forbids officials from taking donations from anyone under their charge.” The charter says nothing of the kind. The Ethics Ordinance, which is not part of the charter, says an official can't solicit contributions. It does not say the official cannot take donations from employees. The section he's citing has nothing to do with “leaning on their subordinates to contribute to their election campaigns.”What Kittle is doing is conflating two issues--election rules and general bribery rules--and attempting to link them with this raise business, without any evidence of a quid pro quo. Merit raises happen--101 lawyers in Aguirre's office got raises, meaning that about 94 of them got raises without contributing a dime. Would Kittle want public employees stripped of their constitutional rights just so they can be eligible for a raise?My educated guess is that Kittle got a tip from one of Aguirre's political opponents, and the tipster probably told him about Section 218 of the charter, the raises and the contributions, and that's all Kittle needed. Kittle's disdain for Aguirre is common knowledge--he probably drooled on his keyboard.Kittle, an archconservative in a moderate town, has for years enjoyed a special place in San Diego's political scene--for some reason, public officials feel the need to scramble to respond whenever he writes a provocative editorial. And he takes himself very seriously. In 2003, he threw a fit when KPBS asked me to become a guest on the Editors Roundtable radio program, whining in an e-mail to then-producer Pam Hardy that he was promised that he would be consulted when it came to program changes. (Aguirre is not entirely wrong when he says Kittle exerts an undeserved level of influence over KPBS' affairs--he initially took his bowtie and went home when KPBS refused to relent, but the station ultimately compromised. Three years later, Cox Channel 4 suddenly decided to air on TV only those Roundtable broadcasts that included Kittle and his two cohorts.)Could Kittle's reign of conservative terror be ending? If the U-T digs in its heels on the retraction demand, the legal case would likely take a long time to play out. But if the paper's lawyers determine that a retraction is necessary, that would be quite an embarrassment--it would mean the U-T's most public ambassador let his political zeal trump his journalistic integrity.I'll certainly be paying attention to this one.