Legal Case To Put New Upland City Attorney Behind 8 Ball From Day One

(July 20)  Members of the Upland city council emerged from a specially called closed-session at the Upland Carnegie Library on July 17 without taking any reportable action.
The meeting was convened for the council to interview representatives of six law firms that are being considered to replace Bill Curley and his firm, Richards Watson & Gershon, as Upland city attorney.
The council in April went out to bid for a new contract for city attorney services, receiving in response sixteen separate proposals from lawyers and firms. After a review of those applications by city clerk Stephanie Mendenhall, who also serves as the city’s director of human resources and risk management, as well as administrative services director Jeff Zwack, ten applicants were eliminated, leaving six potential candidates – the law firms of Aleshire & Wynder; Burke, Williams & Sorenson; Gutierrez, Fierro & Erickson; Jones & Mayer; Liebold McCendon & Mann; and Robbins & Holdaway.
According to Mendenhall, the applicants were vetted and given preliminary ratings based on a host of criteria, including experience in the field of municipal law, ability to handle specialized cases in-house and their respective litigative track records.
The inclusion of the Gutierrez, Fierro & Erickson law firm among the six was something of a surprise in that the firm’s principal partner, Jimmy Gutierrez, was recently hired as a temporary replacement for Curley and it was announced at that time that Gutierrez’s firm would not vie to become city attorney on a permanent basis.
Among the six firms whose representatives were interviewed Tuesday night, Jones & Mayer and Robbins & Hodaway were the most highly rated in the initial analysis completed by Mendenhall and Zwack, the Sentinel has learned.
The Jones & Mayer firm serves as city attorney in Blyth, South Pasadena, Costa Mesa, Fullerton, Grand Terrace, Maywood, La Habra, Westminster and Stanton.
Robbins & Holdaway currently represent the cities of Loma Linda and Montclair. Richard Holdaway one of the partners in Robbins and Holdaway, has the further advantage of having worked in the law firm of Donald Maroney, a previous Upland city attorney.
The final selection process is to be a democratic and mathematical one, according to Mendenhall. Each member of the city council and city manager Steve Dunn, who participated in the interview session Tuesday night, will rate the firms. At that point, those ratings and the earlier ratings made by Mendenhall and Zwack will be tallied to winnow down the field of competition further or derive a victor if one clearly emerges as top dog. Based upon further negotiations over salary and terms, that firm will be selected.
While all of those associated with the firms under consideration are looking forward to the possibility that their law office will be selected for the Upland job, upon actually occupying that position the winner may soon find it has waltzed into a buzz saw.
A significant case the city is involved in which in part brought about the decision to severe its contract with Richards Watson & Gershon is a lawsuit brought by the county of San Bernardino against the city, the state Department of Transportation (Caltrans) and the county’s transportation agency, San Bernardino Associated Governments, known as SANBAG. That lawsuit relates to Upland’s approval of the Colonies at San Antonio residential and Colonies Crossroads commercial developments and the $102 million settlement cost the county sustained when the developer, the Colonies Partners, sued the county over flood control issues after the county built the 20th Street storm drain at Upland’s behest in conjunction with Caltrans’ extension of the 210 Freeway across property owned by the Colonies Partners. More than four years ago, the county offered to settle the case with Upland for $2 million. Richards, Watson & Gershon, on hehalf of the city, declined that offer. The city has paid $4.9 million in legal fees to Richards Watson & Gershon to defend against the suit, nearly two-and-a-half times the amount of the settlement offer. What some council members have characterized as excessive billings has been cited as the reason for terminating Upland’s contract with Richars, Watson & Gershon.
The city has potential liability in the scores of millions of dollars because it had requested that the county flood control district build the 20th Street storm drain. Further, it was the city of Upland that had given approval to the Colonies projects, which were built on property once owned by the San Antonio Water Company and which were criss-crossed with flood control easements recorded in the 1930s. It was the county’s action in constructing the terminus of the 20th Street storm drain so that it vectored water into a flood control basin covered by one of those easements which led to the Colonies Partners’ suit against the county. At issue in the county’s suit against Upland is the city’s negligence in approving the Colonies projects without clearly demarking responsibility for the provision of infrastructure, such as flood control basins and channels, to accommodate the project.
The Colonies Settlement case must go to trial by October. In addition to the $2 million settlement offer made by the county, there have been intensive backroom negotiations between the city, its emissaries and county officials and representatives aimed at forming a settlement short of trial. According to reliable sources, an accommodation that would have brought an end to the litigation without any monetary burden on Upland tentatively endorsed by both of the county supervisors whose districts cover Upland – Second District Supervisor Janice Rutherford and Fourth District Supervisor Gary Ovitt – as well as county chief executive officer Greg Devereaux has been forged by intermediaries. The terms of that settlement would have required that Upland consent to some of its officials – most importantly city councilman Ken Willis – submit to an intensive round of questioning, including being submitted to a deposition, that is, questioning under oath. Willis was part of the city council that endorsed the Colonies projects. He was also a political ally of former Upland mayor John Pomierski. The Colonies Partners were major Pomierski backers, having made considerable monetary donations to his electioneering fund. Pomierski in return was highly supportive of the Colonies at San Antonio and Colonies Crossroads projects. In 2011 Pomierski was indicted by a federal grand jury on bribery, extortion and conspiracy charges. He pleaded guilty to bribery earlier this year.  Like Pomierski, Willis received hefty campaign contributions from the  Colonies Partners. In 2010, former county supervisor Bill Postmus was indicted by a specially-impaneled state/county grand jury on bribery and extortion charges related to his vote in 2006 to approve the county’s $102 million settlement with the Colonies Partners. In 2011 he pleaded guilty to those charges. Subsequently, Jeff Burum, one of the managing principals in the Colonies Partners, and former county supervisor Paul Biane, who voted with Postmus in 2006 to approve the $102 million settlement, were indicted by another specially-impaneled criminal grand jury and charged with involvement in the same bribery, extortion and conspiracy scheme that involved Postmus. That indictment alleged that $100,000 donations made by Burum to political action committees formed or controlled by Postmus and Biane were actually bribes made to reward them for their votes to approve the $102 million settlement. For nearly three years beginning in 2004, Bill Postmus was the chairman of the San Bernardino County Republican Central Committee. In 2007, he was succeeded by Biane as chairman of the GOP in San Bernardino County. Biane was succeeded, eventually, by Willis as chairman of the San Bernardino County Republican Central Committee. Burum was a major contributor to the San Bernardino County Republican Central Committee. Both Burum and Biane have pleaded not guilty to the charges against them contained in the indictment.
Ironically, though Curley is no longer Upland’s city attorney, his firm – Richards Watson & Gershon – remains Upland’s legal representative with regard to the Colonies Settlement lawsuit, as the city is reluctant to bring in another firm, given the investment the city made in having lawyers with that firm familiarize themselves with the issues involved in the litigation.
Richards Watson & Gershon, which rejected the county’s $2 million settlement offer on the Colonies Settlement litigation more than four years ago, again rejected the more recent informal county offer to settle the suit conditional upon an agreement to have Willis subjected to questioning. Instead, the law firm made a motion to prevent a deposition of Willis from proceeding.
With the October trial date approaching and the potential for an outcome that would include a substantial judgment against the city, whoever the new city attorney will be faces the prospect of having to make a series of no-win judgment calls. One of those  will entail deciding whether to seek to protect the city’s taxpayers or instead accede to the wishes of the city’s elected leadership and shield at least one of those leaders from a round of hard-edged, embarrassing and even painful questioning. That decision parallels a decision to either contradict the pattern of pricey advice the city has received so far from Richards Watson & Gershon or stay the course with a risky strategy to forge ahead to trial.
Moreover, by not accepting the county’s terms for settlement nor making an accompanying motion for a good faith settlement that would apportion and limit any judgments against the city sought by other parties, the city remains open to further settlement costs as a consequence of cross-complaints filed against Upland by Caltrans and SANBAG, the county’s transportation agency. Such an outcome on the watch of the new city attorney could greatly diminish that firm’s prestige and hurt its ability to obtain municipal law work in the future.

Leave a Reply