Conflict of Interest? Charlottesville shares an attorney with its own police oversight board. (2024)

The City of Charlottesville faces a potential conflict of interest after its decision to hire a law firm that is already representing the city’s independent Police Civilian Oversight Board.

That board, known as the PCOB, is designed to monitor and respond to any potential misconduct within the Charlottesville Police Department, work that could put the board at odds with the city.

So the chair and vice-chair of the board were surprised in April when they learned that the city had hired Richmond-based law firm Sands Anderson, the same firm that the board uses.

“The discussions within the board have been limited primarily to me and Vice Chair Jeffrey Fracher, and our reaction was kind of, ‘WTF?’” Bill Mendez, the board’s chair, told The Daily Progress.

In an effort to remain independent, board members three years ago pushed to make sure that an ordinance outlining the PCOB’s powers included a clause that granted the board an ability to be represented by its own lawyer.

“We fought when we got the ordinance passed to have truly independent counsel that could represent us on all legal issues, whereas others felt that the city attorney should be our lawyer except when there was some clear conflict,” Mendez said. “We said, ‘No, we are really going to need truly independent legal advice throughout the whole process.’”

The board’s wish was granted. The ordinance passed in 2021 allows the PCOB to retain independent counsel. The city attorney provided the board a list of recommended law firms, and the PCOB selected Sands Anderson.

“Sands Anderson spent a fair amount of time with us giving us legal advice on some issues having to do, for example, with our ability to hold hearings. They spent a fair amount of time training us on FOIA [the Freedom of Information Act] and confidentiality issues,” Mendez said.

But in April, Charlottesville city attorney Jacob Stroman was put on administrative leave. The city has declined to provide any details as to why Stroman was put on leave, only saying that it was a “personnel matter.” It remains unclear when, and if, Stroman will return to the role.

His exit presented a vacancy the city needed to fill. So City Hall turned to Sands Anderson, in part because it was familiar with the firm, according to city spokeswoman Afton Schneider.

Charlottesville had turned to Sands Anderson before in a similar circ*mstance.

In December of 2022, Lisa Robertson, who was city attorney at the time, abruptly resigned. The next month, the city hired Sands Anderson to fill the void left by her unexpected departure. Stroman was hired months later in June 2023.

But this spring, Charlottesville again had a void in its office, not only because Stroman was put on leave, but also because deputy city attorney Allyson Davies resigned last November.

With a need for new legal representation, the city reached out to Sands Anderson and set the terms of engagement for 60 days.

“All active litigation is being managed to ensure the City does not fall behind,” the city said in an April public statement.

The 60-day timeline has come and gone, and while Schneider said Sands Anderson is only the city’s attorney temporarily, it’s unclear how much longer the firm will remain in that role.

Temporary or not, City Hall and the PCOB employing the same counsel could present a conflict of interest down the road, according to George Cohen, a professor of corporate law at the University of Virginia.

“The fact that the city is using the law firm on a temporary basis does not affect whether there is a conflict,” Cohen told The Daily Progress. “What matters for a conflict is where the interests of the city and the PCOB are adverse or whether the law firm’s representation of either the city or the PCOB will be materially limited because of the duties the law firm owes to the other client.”

According to the PCOB ordinance, the board’s independent counsel can represent it “in all cases, hearings, controversies, or matters involving the interests of the Board.” That would include legal matters where the board and the city are at odds.

There have been limited opportunities for the city and the board to find themselves at odds, in part because it’s taken years for the board to actually get off the ground.

Charlottesville City Council voted to create the board in 2017 in the wake of the deadly Unite the Right rally-turned-riot. But that version of the PCOB was largely toothless and faced pushback from then-Police Chief RaShall Brackney. It wasn’t until the Virginia legislature passed a bill in 2020 that civilian oversight boards like Charlottesville’s were given more power to oversee policing.

The board had its first case in 2022 but has had little activity since, frustrating some community members who have wanted to see more from the PCOB since its inception seven years ago.

But the lack of action is not necessarily due to a lack of trying.

Mendez said the board has been “paralyzed” for months, unable to access police records despite an ordinance which says the unpaid community volunteers “shall be provided full access” to all police department records pertinent to board investigations.

That records access was paused in October when Police Chief Michael Kochis spotted an omission in the city’s paperwork governing how the police share information with the board. So, the city and the board had to rework their standard operating procedures, or SOP. That wasn’t finalized by City Manager Sam Sanders until June.

“Without the info-sharing SOP, we could not have access to any information from the police department. So we couldn’t do anything,” Mendez said. “And that was the main bone of contention from October through May.”

Now that the SOP is finished, the board should be able to get back to work.

But Mendez said the board is not satisfied with the SOP, calling it “too weak” and arguing that it failed to respond to “very significant concerns we had with the original draft.”

For instance, it gives police three days to respond to a request for information. Board members said they believe requests should be granted automatically.

“Three days is forever when you’re trying to address a civilian complaint or when something serious is going on,” Mendez said.

Pamela O’Berry, the Sands Anderson attorney who represents the PCOB, and since April has been one of several Sands Anderson attorneys representing the city, recused herself from SOP negotiations.

The city said O’Berry not being involved illustrates that there was not and is not a conflict of interest.

“Our argument is if she was truly independent, she would’ve been involved. She would’ve helped us out,” Mendez said, adding that the SOP could have been stronger if the PCOB had an attorney to represent it. “We felt if we had independent counsel who could have been involved, or who could be involved now, we might have been able to have a much better chance of influencing the content of the SOP.”

O’Berry did not respond to a request for comment from The Daily Progress.

Without independent counsel, Mendez said the board is in a bind. He wants to find another attorney that can advocate for the board, but that’s a process that could take months.

Still, Mendez does not believe the city hired Sands Anderson with the intention of sabotaging the board.

“I think they hired them with innocent intent in that Sands Anderson is probably the leading law firm in municipal government law in the state,” he said.

The city maintains that its hiring of Sands Anderson does not present a conflict of interest, in part because the firm is only representing the city in a temporary capacity.

“If a conflict arises, we’ll deal with it then,” Schneider said.

But for now, the board finds itself without trusted counsel as it continues to sort out agreements between itself and the city. And there is always the possibility that the two bodies could find themselves at legal odds before Sands Anderson is replaced.

“If a conflict arises, the fact that the law firm was hired only temporarily would not matter,” said Cohen. “Perhaps what the city means is that because the law firm’s representation is only temporary, the city does not think a conflict is likely to arise, and that if a conflict does arise, the city would have no problem hiring a different law firm at that point since the city would not have significantly invested in the relationship.”

“I don’t have sufficient facts to judge whether that is a reasonable course or not,” Cohen said.

Regardless of the potential conflict of interest, the issue is but the most recent complication in the long, halting road of the PCOB’s existence and raises questions about what the city and other players could be doing differently to ensure the board is operating in the way originally intended.

“My take on this is very legalistic, and also it’s a little suspicious. I don’t necessarily think anyone in city government is out to screw us or unnecessarily limit our powers, but the way they’ve been working, it’s just like we’re their last priority,” Mendez said. “If they’re really interested in police oversight, they kind of have to pay attention to it and be involved.”