The wrongful termination claim filed against the city of Upland by former city manager Robb Quincey has put the Upland City Council in an awkward position that will result in the city finding someone other than city attorney Bill Curley to dispute the demands made in Quincey’s claim, the Sentinel has learned.
The city council relied upon Curley for guidance in firing Quincey last year.
The city council on November 28 rejected Quincey’s claim notice seeking unlimited damages over his May 4 termination filed on his behalf by attorney Joseph Wohrle on November 1. In that claim, Quincey maintains the city breached his employment contract, violated the labor code and wrongfully terminated him. According to Wohrle, Quincey’s sacking was precipitated in large measure because of his efforts to rein in the legal billings made to the city by Curley and his law firm, Los Angeles-based Richards, Watson and Gershon.
Wohrle has six months from the November 28 rejection of that claim to file a lawsuit on Quincey’s behalf or otherwise seek arbitration on the matter as is specified in Quincey’s employment contract.Wohrle did just that last month, filing a petition with the San Bernardino County Superior Court at the West Valley Courthouse in Rancho Cucamonga for an arbitrator to be appointed. The court is to consider that request on February 14.
Whether the matter is heard by a arbitrator or in a trial, the consideration that Quincey is citing the activity of Curley and his firm as a central issue in the events leading up to his firing has resulted in a potential or real conflict-of-interest that cannot be laid to rest unless a lawyer or law firm independent of Richards, Watson & Gershon is brought in to advocate on behalf of the city.
Quincey, who was handpicked by then-mayor John Pomierski to serve as city manager in the aftermath of former city manager Mike Milhiser’s forced departure in 2005, had zoomed to a level of unprecedented authority in Upland while working for a city council dominated by Pomierski. But his fortunes shifted shortly after FBI and IRS agents on June 10, 2010 descended on City Hall and Pomierski’s home to serve search warrants in conjunction with a federal probe of political corruption in Upland’s municipal government, including charges that Pomierski, with the assistance of city staff, was shaking down developers and others with business proposals or permits pending before the city.
In the aftermath of those law enforcement raids, information about questionable actions involving Quincey circulated in Upland, including a report he had retaliated against a police sergeant, John Moore, who had investigated an alleged domestic disturbance incident involving the city manager, by preventing Moore from being promoted to lieutenant and that he then acted improperly to create a third captain position in the department and promoted one of the department’s lieutenants into that newly formed post to ultimately promote Moore after Moore began to prepare a legal complaint alleging retaliation.
It was action Quincey took in the aftermath of Moore’s promotion in which he went beyond his legal authority as city manager to make maximum $25,000 disbursements without prior council authority to cover $50,000 of a $57,816 bill for services rendered to Moore by the law firm Lackie, Dammeier & McGill that formed the basis of the city council’s decision to fire him. In his claim, Quincey maintained the payments to the law firm were properly processed by the city’s finance department. In firing Quincey, the city also relied on information pertaining to Quincey’s relationship with former assistant finance director Ruby Carrillo, who was reportedly involved in providing and documenting the payments to Lackie, Dammeir & McGill. Carrillo is no longer employed by Upland.
The claim asserts Quincey’s contention that he was actually terminated because in the latter part of 2010 he had undertaken a critical evaluation of the billing practices of the city’s legal counsel, the law firm of Richards, Watson & Gershon, which employs city attorney Curley. “For years, claimant expressed concern to his staff and the city council about legal fees generated by Richards, Watson & Gerschon,” the claim states. “[D]uring October 2010 claimant engaged the city’s independent, third-party claims investigator, NovaPro, to audit one month of Richard, Watson & Gershon’s legal fees on two litigation matters it was handling for the city. The results of NovaPro’s audit shocked claimant. The NovaPro’s audit disclosed that on one litigation matter brought by the San Bernardino County Flood Control District against the City of Upland, Richards, Watson & Gershon racked up charges of $105,830 for September only. On this matter alone, just for this month, Richards, Watson & Gershon billed for the time of seven partners and employees who charged up to $348 per hour; the total hours billed were 367.3 at $288 per hour. The NovaPro audit also disclosed that on another litigation matter, People v. G3 Holistics, Inc., Richards, Watson & Gershon generated billings of $72.973.20, again, for September only. On this matter alone, just for this month, Richards, Watson & Gershon billed for the time of nine partners and employees who charged up to $348 per hour; the total hours billed were 269.5 at an average rate of $271 per hour. Notably again, just during September 2010, in the San Bernardino County Flood Control District matter, Richards, Watson & Gershon billed 22.5 hours for discussions amongst six partners and/or employees, at a cost of $6.079.60. During September 2010, in People vs. G3 Holistic, Inc., Richards, Watson & Gershon billed 20 hours for discussions amongst seven partners at a cost to the city of Upland of $5,954.80. The NovaPro auditors found that the city of Upland should not have been charged for conversations between Richards, Watson & Gershon, and it should have been charged a maximum hourly rate of $250 per hour per ICRMA [Independent Cities Risk Management Association] guidelines. Had Richards, Watson & Gershon merely refrained from charging for employee conversations and billed at the appropriate rate, the city of Upland would have saved $42,428.40 just during September 2010 and just on the two cases mentioned above.”
In his claim, Quincey furthermore maintains that “On December 2, 2010, claimant was provided with an additional report regarding the NovaPro audit by Mr. [Stephen] Dunn [who was then the city’s finance director and who has now succeeded Quincy as city manager]. The same day, claimant corresponded with the mayor and city council regarding his concerns over Richards, Watson & Gershon’s billings, which approached $250,000 per month, an enormous sum for a municipality of approximately 70,000 residents. Claimant also expressed concern over city attorney Curley’s recent actions toward claimant, Mr. Dunn and their support staff. On December 8, claimant advised the mayor and city council that a. City attorney Curley was requesting information from claimant’s staff without claimant’s consent; b. The information Curley was requesting involved, for example, a list of federal projects approved for the city of Upland; and c. The list of federal projects budgeted for the city of Upland that city attorney Curley was requesting was far beyond the scope of records sought by the federal grand jury subpoena served on the city of Upland on November 30, 2010. Claimant was concerned city attorney Curley was retaliating against claimant because of claimant’s audit of the billings of Richards, Watson & Gershon, and because of claimant’s refusal to execute any waiver of conflicts of interest that would allow Richards, Watson & Gershon to represent other local municipalities and/or water agencies of which the city of Upland was a member, in some instances, in litigation matters against the city of Upland. Such conflict waivers were requested by city attorney Curley and/or his law partner, James Markman.”
It thus appears that Curley and his firm will be a focus of the case Wohrle will be attempting to make on Quincey’s behalf. A platitude in the legal profession is that no one should ever represent himself or herself in a legal matter, as differing rights and privileges are extended to litigants and those who represent them. An oft-quoted witticism reflecting this principal is that “Anyone who serves as his own lawyer has a fool for a client.”
Experts in the realm of legal practice and legal ethics consulted by the Sentinel suggested that having Curley or anyone from Richards, Watson & Gershon representing the city could become problematic.
Stephen C. Yeazell, a professor at the UCLA School of Law who teaches theory of legal procedure and the dynamics of modern civil litigation, told the Sentinel that a lawyer or firm representing an entity in an arbitration or litigation in which the action of that lawyer or firm on behalf of the entity is an issue “would not necessarily be a violation of legal ethics, although it could be. I would think if you were the city you would want to get a second opinion from a disinterested source. I think it would be bad judgment by the city council not to check with someone else before going ahead with a defense.”
Yeazell’s colleague at the UCLA School of Law, Scott Cummings, who lectures on professional responsibility and legal ethics, told the Sentinel that Curley and Richard, Watson & Gershon’s circumstance vis-à-vis Quincey’s claim against Upland, “presents an interesting fact pattern which certainly tests whether the city attorney should be prohibited from representing the city because of a conflict. Without having read the complaint with great care, there doesn’t seem to be any current direct conflict that would disqualify the city attorney.”
Nevertheless, Cummings said, “One issue is that the city attorney might be called to testify against its own client, the city, and I suppose that, at some point, the city attorney could be named as a defendant itself. So a potential for conflict does exist if that is true.”
Cummings said that Curley and/or his firm could be permitted to represent Upland with regard to Quincey’s claim, but only if the city council fully understands the implications and consents to the arrangement and waives its reservations with regard to the potential conflict. “Their representation is fine, so long as the city is informed and agrees,” Cummings said.
Upland city manager Stephen Dunn told the Sentinel the city will not make that waiver or give its consent to Curley and Richards, Watson & Gershon representing it with regard to Quincey’s contention that he was wrongfully terminated.
“They will not be representing us because we look at them as a potential witness and we want to avoid any kind of conflict,” Dunn said of Curley and Richards, Watson & Gershon. “We are in the process of selecting an attorney to represent the city in this. We have not chosen an attorney yet and that is why Robb and his attorney have not gotten a response from us yet. Robb gave us until December 23 to come up with a list of arbitrators in response to a list of four arbitrators he wants to have us use. We did not meet that deadline because we are not going to go with Richards, Watson & Gershon or Bill Curley to represent us. After we select an attorney we will file the appropriate responses at that time.”
Repeated attempts by the Sentinel to reach Curley for comment were unsuccessful.