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Fixed Fight 

click to enlarge Illustration by Jim Rugg
  • Illustration by Jim Rugg

It's hard to win a fight with your hands tied behind your back. But Pittsburgh's Citizen Police Review Board may have to learn how. 

In a surprise announcement at the board's Sept. 28 meeting, CPRB Executive Director Beth Pittinger announced that board solicitors Hugh McGough and William Ward would be resigning, effective Oct. 18 -- a move the lawyers took, she explained, after a troubling, months-long contractual dispute with the city. 

That dispute has involved city attorneys seeking the power to fire the review-board attorneys outright, and accusations from another lawyer that the review board has been working behind the scenes with the American Civil Liberties Union.

According to a Sept. 17 resignation letter addressed to Pittinger, Ward wrote that their firm, Ward McGough, LLC, is stepping down over contractual changes sought by the city's Law Department, which has held up payments to the firm since January. Throughout that period, the Law Department has been fighting with Ward McGough attorneys over access to documents concerning police tactics during last year's G-20 summit here.

Ward's letter claimed the Law Department refused to pay the firm's legal bills unless it agreed to renegotiate its contract, which had already been approved by Pittsburgh City Council and the mayor. The provisions sought by the Law Department, which Ward called "unprecedented" and "unreasonable," would have required the solicitors to increase their malpractice insurance by $17 million, and even allowed the Law Department to remove the attorneys without notice.

Tensions between the city and the 13-year-old CPRB have never been higher, thanks to court battles over the review board's G-20 investigation. Attorneys for the city say it may still be possible to negotiate a new contract with Ward McGough. But for now, says Pittinger, "It's gone beyond unacceptable. This is the most obstructive, devious, unethical situation we have ever encountered."

 

The relationship between the city's Law Department and the CPRB started to sour last November. That's when the CPRB requested G-20 documents from the city, including arrest reports and police procedures, so that the board could investigate the city's handling of the high-profile summit.

In response, however, Paul Krepps, an attorney retained by an insurance company to represent the city in G-20 legal action, declined the CPRB's request. "CPRB's requests are excessively burdensome," Krepps wrote to Pittinger on Nov. 25, 2009, "and represent an attempt to extend the authority of CPRB far beyond its scope of responsibility and purpose." 

The letter went on to express dismay over the ACLU's participation at public CPRB meetings. "This apparent 'working relationship' causes concern because the ACLU is actively seeking clients to join law suits against the City," he wrote.

Pittinger and ACLU legal director Vic Walczak scoff at the accusation. "We have no relationship with the ACLU," Pittinger says. 

"I can assure you there has been no working relationship," agrees Walczak, who calls Krepps' claim "pretty funny" since he had no contact with the CPRB from before the G-20 until this past August.

But in any case, when police Chief Nate Harper followed a court order to give the board 309 pages of arrest reports, the material was heavily redacted. Review-board lawyers sought to hold Harper in contempt of court; the same day they argued that motion in court, Mayor Luke Ravenstahl announced that he'd be replacing most of the review board's seven members. 

 "I think you would have to look upon [the board overhaul] as a retaliatory act," Pittinger told reporters at the time. 

That dispute took place in the public eye, while the contract disagreement between Ward McGough and the city's Law Department had been playing out behind closed doors. 

According to Ward's resignation letter, the Law Department began demanding changes to the firm's contract in April -- one month after the city was first ordered to produce the documents sought by the CPRB. Although the contract had already been signed by the mayor, all city contracts are contingent upon Law Department approval.

City Solicitor Daniel Regan says the Law Department had no malicious intent. "It's our responsibility to make sure all the terms and conditions [of each contract] are consistent with the needs of the city," he says. But "When the Law Department reviewed the [CPRB] contract, we had concerns about some of the language."

Asked why that language suddenly became an issue in 2010, as opposed to the previous year, Regan told City Paper, "I cannot speak to the 2009 contract." Regan became city solicitor late last year, and says, "I wasn't involved in the execution of that agreement."

Any connections being drawn between the contract dispute and the G-20 court battle, he says, are "not accurate."

According to the letter, the Law Department originally insisted that the contract would be changed to include a provision "authoriz[ing] the Law Department to immediately and without notice terminate representation of the CPRB." That would give city lawyers the power to fire their own courtroom opponents.

The letter said the Law Department eventually dropped that demand. But ultimately, the letter said, "the impasse remains" because the Law Department "demands that the [contract] include new language to the effect that this firm would be liable for damages" for any board actions taken based on the firm's legal advice. Such a demand would apparently apply to any advice the firm had already given, a demand Ward said had "no reasonable basis." 

"The changes sought by the Law Department are unprecedented," Ward added, saying they "deviat[e] from this firm's prior contracts over a decade."

Indeed, says Duquesne University law professor Joe Mistick, the city's involvement in the relationship between the review board and the lawyers "sort of violates giving the board its own legal counsel.

"I don't know what [the city] is afraid of," adds Mistick, a former staffer in the administration of Mayor Sophie Masloff who frequently criticizes the current mayor in a Pittsburgh Tribune-Review column. "It begs the question: Is there something more there than most of us expect?" 

 "I was a little offended that the mayor's office decided to play the hardball game because they got mad," Councilor Doug Shields said during an Oct. 6 city council meeting. "The Law Department, at the behest of no doubt the mayor's office, [included] all those onerous requirements ... to make them walk away."

According to Philip Eure, president of the National Association of Civilian Oversight for Law Enforcement, "It would be troubling if it turned out that these solicitors were somehow retaliated against for doing their job," he says. "The city needs to explain itself."

Making matters worse, Ward's letter says the city has refused to pay the firm's bills while the contract was up in the air. The firm claims to be owed $32,000. (Ward and McGough declined to comment for this story.)

"It's absolutely a nightmare," says Marsha Hinton, who chaired the CPRB before being removed by the mayor in June. "They had no choice but to resign.

"We've had the same contract for the last 13 years and all of the sudden you want to change everything?" she adds. "It's very suspect."

City Controller Michael Lamb says his department "can't process anything" in terms of payment until he receives the bill through an appropriate city channel. That would be the Law Department itself, though Lamb says he has asked city council to approve the firm's invoices. (Council may vote on the invoices as soon as Oct. 13, the day this issue hits the streets.)

Even though Ward McGough tendered its resignation, Regan stresses that the Law Department is still trying to reconcile the contract dispute, so that Ward McGough can get paid and continue to represent the board. "We believe it's possible to resolve this issue," he says.

 

As this issue goes to press, though, the board seems poised to lose advisers with years of experience, having to replace them with newcomers in the middle of a critical lawsuit. And that assumes another law firm would be willing to step into the fray. 

"No lawyer is going to sign a contract with those provisions," Pittinger says. "[The city] is trying to make it impossible" for the CPRB to retain counsel. "These demands are not acceptable for the board to offer to anyone else."

Under the city's Home Rule Charter, the review board is authorized to engage its own solicitor. But Pittinger says that right means little if the city is allowed to interfere. 

"They are interlopers," she says of the city. "They don't belong in business between the CPRB and [the board's] lawyers."

In an Oct. 4 e-mail to council, Pittinger asked members of council "to find a way to permit the CPRB to exercise its right under the Charter and enabling legislation to engage the Solicitor of its choice and to permit that client/attorney relationship to exist without interference or retaliation from the City the CPRB serves." 

"The [CPRB] needs the advice of competent council," says Pittinger.

And that may be truer now more than ever. 

On Sept. 23, Judge Wettick dealt the review board a setback. While the review board sought unredacted arrest reports, Wettick agreed with city attorneys that state law prohibits the board from having access to them. 

Given the significance of the ruling, the board "has appeals it needs to put forward," says Hinton. The city "has effectively handicapped this board."

And without Ward McGough, Pittinger says, the review board "will be at a disadvantage" if it files an appeal. 

"I don't know where this will end," says Mistick, the Duquesne law professor. He agrees that it may be difficult to hire new attorneys given the current dispute. If the city and Ward McGough can't come to terms, he says, "They are probably going to have to look at pro bono lawyers." 

City Councilor Bill Peduto says the city's latest move is part of "a deliberate assault on the independence of the CPRB" -- a tactic he thinks has worked. "Losing their legal team basically renders [the review board] powerless," he says.

"What right does the city have telling an independent organization how their legal team has to be administered?" Peduto adds. "It makes no sense."

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