A superior court judge wants the city and local attorney Bruce
Tichinin to work on a settlement in the case which involves claims
of First Amendment rights violations stemming from Tichinin’s
efforts to investigate Morgan Hill officials for suspected
wrongdoing.
A superior court judge wants the city and local attorney Bruce Tichinin to work on a settlement in the case which involves claims of First Amendment rights violations stemming from Tichinin’s efforts to investigate Morgan Hill officials for suspected wrongdoing.
The two parties in the lawsuit, Tichinin vs. the city of Morgan Hill, had a “mandatory settlement conference” Wednesday, in which Santa Clara County Superior Court Judge Peter Kirwan ordered them to work on a negotiated agreement instead of airing the controversial dispute in a jury trial, city attorney Danny Wan said.
The trial was scheduled to begin Monday, but this week’s conference with the judge removed the case from the trial calendar. The next hearing is scheduled for Nov. 10, when Tichinin and the city will report back to the judge on the progress they have made, Wan said.
The negotiation discussions will mostly take place in private.
“Generally, the court has a policy of wanting to settle,” Wan said, as trials can bog down the justice system with time and resources.
Still, Wan said the city was “ready to go” to trial as of Wednesday. The city is represented by attorney Paul Gordon in the lawsuit.
The case dates back to 2004, when Tichinin hired a private investigator to prove his theory that City Manager Ed Tewes and City Attorney Helene Leichter were having an affair.
Tichinin believed that the alleged romantic involvement led to Tewes influencing Leichter to decide against a proposed set of homes at the base of El Toro. Tichinin represented the applicant for the homes.
The investigator hired Brian Carey, who staked out a Huntington Beach hotel where Tewes stayed during a conference in February 2004.
During the trip, Tewes became suspicious that he was being followed. Before he left his room on the way to check out he made a loud noise in his room, and then hid in a hallway alcove and waited, assuming he would be followed. Moments later Carey walked by with a video camera. When Carey saw Tewes, he hid the camera. Tewes followed Carey to the lobby and later saw Carey watching him from a distance.
Tewes said at the time that he was shaken and distressed by what he considered to be intrusive surveillance, and he feared for his family, according to city documents.
Tichinin’s settlement statement says he is seeking damages of $300,000, plus attorney’s fees, due to the city’s efforts to publicly refute his allegations against Tewes and then-city attorney Leichter. Tichinin claims their condemnation caused him significant distress professionally and personally.
The city’s end of any settlement, if there is one, will ultimately be determined by the city’s insurer, the Association of Bay Area Governments, because that’s who will pay whatever damages are agreed to, Wan said.
“The insurer decides what’s the cheapest way to settle out,” Wan said. “We have input, but they make the final decision how they want to deal with this liability.”
The city paid the first $100,000 in legal expenses on the case, with the insurer picking up the rest, so far. Wan estimated the case has already cost at least $700,000 in attorney’s fees for each side. The city’s insurer will pay for expenses up to $2 million, including the potential settlement amount.
If the case goes to trial and in the “unlikely scenario” that Tichinin is awarded a large sum of money for damages, the city would also be required to pay his attorney’s fees since it’s a civil rights case, Wan said. But the city’s insurance policy does not cover attorney’s fees due to lost judgments, only the damages.
“Whichever side loses (if it goes to trial) will want to appeal this case,” Wan said.
Since 2006, the local court and appeals court have dealt with logistical questions about whether or not the case should go to trial, and what’s the proper forum for the case.
In 2009, the 6th District Appellate Court said Tichinin should have a chance to persuade a jury that the city owes him, and sent the case back to the superior court.
After the spying came to light, the city formed a surveillance subcommittee consisting of councilmen Larry Carr and Greg Sellers. After the committee issued a final report on the matter, the council passed a slap-on-the-wrist resolution condemning the detective work, finding it deplorable and meritless.
The council threatened to report Tichinin to the state board, and asked him to step down from a city subcommittee.
Tichinin claimed this was retaliation, and that it was within his First Amendment right to free speech to conduct research to prove a theory for a potential lawsuit.
In 2006, a trial court dismissed Tichinin’s case at the city’s behest. Tichinin said two years ago that his business and his reputation were “nearly ruined.”
Tichinin referred questions about the case to his attorney Steven Fink, who did not return phone calls before press time.
Tewes did not have a comment on the case. In 2004, he said in a statement, “My family and I have been deeply disturbed to learn that a local attorney, with pending matters before the city government, arranged for a secret surveillance of my activities in an effort to discredit me and the city attorney. That individual’s conduct is reckless and harmful.”
Leichter was awarded $215,000 in salary, benefits and “alleged physical injury or sickness” in a settlement agreement when she resigned in April 2005. She became city attorney for Santa Clara, but resigned from that position in 2010.
Both Tewes and Leichter have denied an affair.
