(May 3) Chino City Attorney Jimmy Gutierrez was illegally involved in drafting his own firm’s professional services contract with the city, according to an open government group now threatening legal action over the matter.
The Inland Oversight Committee has issued a demand that Gutierrez and his law firm, Gutierrez, Fierro & Erickson, return hundreds of thousands of dollars in legal fees the city has paid to Gutierrez and the firm. The Inland Oversight Committee’s lawyer, Cory Briggs, maintains Gutierrez ran afoul of the state of California’s conflict-of-interest law when he assisted in preparing agreements for city attorney services between the city of Chino and the Gutierrez, Fierro & Erickson law firm.
In an April 23 letter to Gutierrez, Briggs wrote, “On behalf of my client, The Inland Oversight Committee, I am writing to inform you of my client’s intent to bring a lawsuit against you for having a financial interest in contracts to which you are a party, and in which you have a financial interest, in direct violation of Government Code Section 1090. Section 1090 states members of the legislature, state, county, district, judicial district, and city officers or employees shall not be financially interested in any contract made by them in their official capacity, or by any body or board of which they are members. Nor shall state, county, district, judicial district, and city officers or employees be purchasers at any sale or vendors at any purchase made by them in their official capacity. As an initial matter, city attorneys are considered city officers/employees within the meaning of Section 1090. In this case, you are an employee of the city of Chino. Consequently, your participation in the making of the July 5, 2005 agreement for city attorney services and the October 3, 2006 agreement for city attorney services – both with the city – were made in direct violation of Section 1090.”
Briggs referenced “the well-established notion that ‘the defining characteristic of a prohibited financial interest is whether it has the potential to divide an official’s loyalties and compromise the undivided representation of the public interests the official is charged with protecting.’“ Briggs then went on to point out that “In 1975, the city began employing you, in your individual capacity, as city attorney. That 1975 agreement did not secure work for anyone other than you. In other words, your law firm Gutierrez, Fierro and Erickson–including its predecessors and attorneys–were never employed by the city prior to 2005. Yet you participated in the making of the 2005 agreement between the city – whose city council you influence and for which you were working and receiving compensation – and your law firm and its partners, Arturo Fierro and James E. Erickson. Your financial interest in the economic well-being of your firm at the time you entered the 2005 agreement resulted in a straight-forward violation of Section 1090, which was repeated again in the making of the 2006 agreement.”
In his letter to Gutierrez, Briggs states, “Common sense tells us that the type of negotiation that occurred between you and the city violates Section 1090. In fact, the California Attorney General’s Guide on Conflicts of Interest states: ‘In the case of an employee, a contract may be renegotiated, so long as the employee totally disqualifies himself or herself from any participation in his or her public capacity, in the making of the contract.’ There is no indication on the face of the agreements that they were negotiated and approved as to form by anyone other than you. Similarly, my client has no reason to believe that the pay raises in the agreements were negotiated by anyone other than yourself. Further, even if you were an independent contractor (which you are not), the negotiating process resulting in the agreements violated Section 1090. As stated by the Attorney General, ‘[w]hen a contractor serves as a public official (e.g., a city attorney) and renegotiates a contract, this office recommends that such contractors retain another individual to conduct all negotiations. In so doing, the official would minimize the possibility of a misunderstanding about whether the contractor’s statements were made in the performance of the contractor’s public duties or in the course of the contractual negotiations.’”
Briggs then delivered an ultimatum to Gutierrez and his firm, telling him to return the money or the Inland Oversight Committee will sue him.
“This letter is simply intended to put you on notice that you have violated Section 1090, and to give you an opportunity to return all monies unlawfully received by you, your firm(s), and partners of the firm(s) as a result of your Section 1090 violations,” Briggs wrote. “Should you refuse to return all money you have unlawfully received in violation of Section 1090 back to the city’s general fund, my client will bring suit and request that the court force you, your firm(s), and the partners of your firm(s) to do so.”
Briggs followed his letter to Gutierrez up with a letter to the city of Chino in which he informed municipal officials of his intent to sue Gutierrez.
“My client hopes that it will not be necessary to file suit against him, his law firm, or his partners in order to obtain full repayment of the money that was illegally paid out to them,” Briggs wrote in the letter to the city. “In case it becomes necessary to sue, however, my client would like to give the city the opportunity to join my client, or even take the lead, in the lawsuit.”
In both the letters, Briggs provided a deadline of today, Friday, May 3, 2013, for a response, indicating he will move ahead with a lawsuit at that point if his demands of Gutierrez are not met. Briggs told Chino officials, “If I do not hear from you in writing by that time, I will assume that the city does not object to my client pursuing recovery of the money for the benefit of the city and its taxpayers.”
Both the city and Gutierrez have not fared particularly well when they previously locked horns with Briggs.  Three years ago, Briggs represented an environmental group, Citizens for Responsible Equitable Environmental Development, which challenged the city in court over what were alleged to be deficiencies in the city’s general plan. As a consequence of that suit, the city amended the general plan on terms consistent with the Citizens for Responsible Equitable Environmental Development’s assertions, and the city paid  Briggs $215,000 for his legal billings to the group for representing it.
The spokeswoman for the city of Chino, Michelle Van Der Linden told the Sentinel, “We are in receipt of the letter and are reviewing several points in it,”
She would not venture a prediction as to whether the city will join with Briggs and the Inland Oversight Committee in an effort to recover money the city paid to its own attorney. “We are obviously in the process of researching those points and are still reviewing and analyzing. To make further comment at this time would not be appropriate,” Van Der Linden said.
Gutierrez did not deign to comment.