by Kelly Thornton and Kevin Crowe | inewsource
The San Diego Police Officers Association has sued the city several times in recent years, and the city has spent $8.6 million to fight them so far. That makes the city’s own cops its most expensive legal adversary.
Now, the officers are sorry.
The police union has a new lawyer who called two of three lawsuits “frivolous” and has filed two malpractice lawsuits against the attorneys who sued in the first place.
“The San Diego Police Officers Association knows this was expensive litigation for the city and has apologized profusely and we’ve done what we can to make it right,” said the POA’s new attorney, Michael Conger, an employment, business and personal injury lawyer from San Diego. “We’ve gotten rid of any litigation to the city related to this nonsense.”
In total, there are 23 lawsuits filed against the city between 2003 and 2010 in which the city has spent more than $1 million. The POA cases are three of those. For all 23 cases, the city has spent $55.3 million, according to an analysis by the Watchdog Institute, a nonprofit investigative reporting center based at San Diego State University.
One of the three cases brought by the POA was to force the city to pay officers for time spent putting on uniforms and protective gear and answering work-related emails. Another case accused then-City Attorney Michael Aguirre of bribery and extortion related to contract negotiations, and sought his removal from office. A third suit was a spinoff of the second; both alleged that the city’s underfunding of the pension violated police officers’ constitutional rights.
The POA lost all three cases – two at summary judgment, meaning a judge didn’t even think the case was worth going to trial. In the overtime case, a federal jury decided in favor of the city after a six-week trial.
More than 1,000 officers opted to drop any appeals based on advice from Conger. The previous lawyer, Gregory Petersen, an Orange County civil rights and employment attorney, is appealing one of the cases on behalf of about 100 clients who’ve stuck with him.
As the cases dragged on, POA members’ credit cards were charged $20 to 40 a month. To cover legal fees, the organization had to mortgage its headquarters.
“I think they were hurt dramatically,” Conger said of the officers. “They paid Petersen over $2.8 million for the privilege of bringing frivolous lawsuits, and he didn’t win one single motion. He doesn’t think he did anything wrong and doesn’t want to pay a dollar.”
At the same time, the financially crippled city hired an outside legal firm, Latham & Watkins, at up to $750 an hour, because the city had a conflict defending against its own employees.
“I don’t know if I even have a comment,” said Jay Goldstone, the city’s chief operating officer. “It was very unfortunate.”
In one of two malpractice suits, the POA contends, among other things, that Petersen provided inadequate representation by failing to present evidence to refute a key point the city made – that retiree health insurance is not a vested benefit. Specifically, the suit says, Petersen should have presented to the court a 1981 memo to city employees promising retiree healthcare for life if the employees agreed to opt out of Social Security, which they did.
Instead, the court ruled in favor of the city, and a precedent for city employees was set: In July 2009, the city seized on the ruling that such benefits are not vested, and imposed a $740-per-month fixed cap on retiree health benefits. Previously the benefits could increase up to 10 percent annually.
The POA is seeking damages for the harm done by that “bad ruling,” Conger said. The second malpractice suit contends that Petersen and colleagues filed frivolous suits and seeks money back for the costs of pursuing those claims.
That suit said Petersen made inflated claims of future success. “Petersen held a large evangelical-style rally of SDPOA members at the Scottish Rite meeting hall in which he also told SDPOA members he ‘would recover far more in litigation than the SDPOA could ever achieve at the bargaining table,’ and that at the conclusion of the case, every SDPOA member would have a new Ford F-350 pickup truck parked at their house…and that they would soon own Balboa Park,” the malpractice suit said.
Both malpractice lawsuits against Petersen also name his then-firm, Jackson, DeMarco, Tidus & Peckenpaugh,
Aguirre said the memo in question was not significant when compared to the totality of the evidence, and the matter is over. “The lawsuit that’s brought against Petersen will have no affect on city whatsoever because the city’s not a party to it. If Conger were to win or not win it has no impact on the city because that chapter has been closed and has been fully litigated.”
And in another lawsuit, this one against the city, Conger is hoping to invalidate the cap that resulted from that so-called “bad ruling.”
Petersen contends his work was excellent and disputes that he never won a motion. He said the city council was looking to cap healthcare expenses long before his lawsuit came along.
And, he said, it was he who fired the POA as a client after the union had secret mediations with the city – using lawyers from his former firm – without his knowledge.
Petersen said he feels good about his chances of winning the POA cases on appeal, particularly the overtime case.
“I think Mr. Conger’s an opportunist,” he said, “I think a lot of people may regret following what he’s said. My clients will be recovering for overtime and unfortunately those that have been dismissed won’t.”
Petersen said the malpractice suit is baseless.
“I give up with the politics of the POA,” Petersen said. “If they want to fight this out we’re going to fight it out. And we’ll see just how it all comes down.”
Although the city won the POA cases, it did not seek payment of its attorneys fees in the two pension-related cases.
Conger said he was pleasantly surprised that the prevailing city attorney didn’t seek the fees. “He chose not to, and I don’t know why. I’m happy for my client that he didn’t.”
City Attorney Jan Goldsmith’s spokeswoman, Gina Coburn, said her boss deferred to Latham & Watkins on the issue, and the outside attorneys felt it wasn’t worth pursuing more than $1 million in legal fees in one of the three cases.
Latham attorney Colleen Smith wrote in an email that the lower court judge denied the city’s initial request for fees and when it appealed, the appellate court sent it back to the lower court and “suggested we would not win on the merits.”
Aguirre, who was city attorney when the case was filed against him but left office before it was resolved, said the case seeking his ouster was frivolous – which is a criteria for being awarded attorneys fees.
He suggested political motives.
“I believe the reason Goldsmith didn’t seek the attorneys’ fees is not because of anything Latham said but because of his close relationship with the police officers union, who are among his biggest and most vocal supporters.”
Goldsmith scoffed at that suggestion, saying he had lost favor with the POA by initiating litigation against its members that imperiled some of their benefits.