Duffy Must Pay ACLU Costs in Anti-Bird Issue

The San Diego County counsel’s office has decided that Sheriff John Duffy must personally pay the ACLU $18,804 in legal costs it incurred while challenging his conduct during the 1985 fight to force former California Chief Justice Rose Elizabeth Bird to resign.

An opinion by Deputy County Counsel Anthony Albers concludes that the county cannot be held responsible for paying the costs because Duffy’s actions were unrelated to his duties as sheriff.

“The county counsel is of the opinion that since the sheriff’s (anti-Bird) activities were outside the official scope of his employment, the $18,804 was not a valid county charge,” county spokesman Bob Lerner said Wednesday. “This activity was something the sheriff handled as a personal individual. . . . It was not in his job description.”

Things began to go awry for Duffy in March, 1986, when a Superior Court judge ruled that the sheriff had engaged in illegal political activity by using his office and deputies to distribute material urging Bird to resign.

Then, three months ago, the 4th District Court of Appeal rejected Duffy’s claim that the American Civil Liberties Union--which sued the sheriff to force him to stop his anti-Bird campaign--ought to pay for legal fees it incurred in the suit.

Last month, the sheriff filed a claim with the county auditor’s office requesting payment of the $18,804, Lerner said. At about the same time, the 4th District Court of Appeal’s order directing that the ACLU be reimbursed arrived on the auditor’s desk.

“Acting on both of these things, the county auditor drafted a check for the $18,804,” Lerner said. “The check went out. It seemed routine. But in the meantime, the county counsel became aware of this and issued his opinion that . . . the charge was something the sheriff would have to handle on his own.”

Payment Stopped

By this time, however, the check was across town and in the hands of the ACLU. When he learned of the county counsel’s opinion, the auditor quickly stopped payment on the check before it could be cashed.

“We got a communication from the auditor asking for return of the check,” said Betty Jean Wheeler, the ACLU’s legal director in San Diego. Wheeler said she was somewhat surprised, but added, “The question is: Is Sheriff Duffy surprised?”

Neither Duffy nor his attorney, Sheriff’s Department legal aide Janet Houts, could be reached for comment on the matter Wednesday.

At the root of the dispute is Duffy’s distribution in February, 1985, of 18,000 anti-Bird post cards supplied by Crime Victims for Court Reform, a group leading the fight to oust Bird in the November, 1986, election.

In a lawsuit 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 cards, mailing the cards to interested citizens, and using on-duty deputies to deliver the cards to substations.

Superior Court Judge Douglas Woodworth ruled that even though the sheriff had a right and a duty “to inform the public about matters that are reasonably within the scope of his duty,” most of Duffy’s conduct was prohibited by law.

Specifically, Woodworth ruled that Duffy could speak out on issues but that during working hours, he and other public officials could not engage in political activities “aimed at influencing the voters.”

Duffy did not appeal the judgment, but challenged the ACLU’s efforts to recover money for court costs and attorney’s fees. In a strongly worded opinion, the appellate court rejected that challenge and ordered Duffy to reimburse the ACLU.

“We’ve tossed it back in his lap now, so we’ll be waiting to see what he does next,” Lerner said.

Meanwhile, the ACLU is still short the $18,804. But legal director Wheeler says she isn’t worried. “We figure we’ll get our money sometime.”