While the Police Civilian Oversight Board was struggling with the city to regain access to police records, the City of Charlottesville hired the Board's attorney.

That means, the Board and the City were represented by the same attorney while the Board was trying to negotiate access to those records, which the Charlottesville Police Department had stopped sharing in October.

It's unclear how this arrangement between the city and the Richmond-based law firm Sands Anderson came to be or the extent to which being represented by the same attorney caused issues for either party.

Dexter Auction reached out to Sands Anderson on Friday morning and did not get an immediate response back. Afton Schneider, a spokesperson for the City of Charlottesville, said she was unavailable to comment Friday, but said she would do so next week.

Dexter Auction was also unable track down the name of the attorney in question in time.

The PCOB hired the attorney three years ago to provide “truly independent” counsel in case there were conflicts of interest with the City, Mendez told Dexter Auction on Friday.

According to Mendez, the attorney didn't ask for the PCOB's consent before agreeing to step in as the City's attorney in April, to replace Jacob Stroman, Charlottesville City Attorney, while he is on leave.

Mendez said he learned about the dual role of the attorney by chance, and during the couple of weeks he tried to reach the lawyer to discuss whether it constituted a conflict of interest, the responses were “somewhat dismissive.”

“There has been at least one instance in which I think the dual role has interfered with the ability of our independent counsel to act as a zealous advocate for us,” Bill Mendez, the chair of the PCOB, said during the Board meeting on Thursday evening. He did not elaborate on what that instance was.

YouTube video
Charlottesville's Police Civilian Oversight Board discuss finding a new attorney after learning that their independent counsel is now also representing the City of Charlottesville.

“Because there's no consent, this sounds very troubling,” said David Super, a professor at Georgetown Law who focuses on administrative and local government law. Super is not associated with either the city or the PCOB. It is only informed consent from “both clients, and the first client above all” that would make a conflict of interest waivable.

The matter of consent would have still existed even if it wasn't the same attorney but just the same firm, said Super.

“If the interests are seriously adverse, even informed consent cannot cure the conflict,” he added.

Mendez said he reached out to Sands Anderson prior to the Thursday Board meeting and asked the firm to consider if it needed to give them a different attorney. The firm's ethics officer suggested that the PCOB should consider hiring a new firm instead.

“It would not resolve the issue of the apparent conflict of interest or any potential real conflict of interest if another lawyer from the same firm were serving as our independent counsel,” Mendez said during the meeting about the ethics officer's take on the situation.

Mendez and Jeffrey Fracher, PCOB vice-chair, decided that the Board would find another independent counsel going forward, in what could be a lengthy process.

The Board has several issues it is going to be facing in the near future. For one, it will be navigating some general revisions to its operational procedures. Then, there is the new contract between the police union and the department that takes effect July 1. The Board will need to navigate the potential impact of it on its policies and practices.

Furthermore, the PCOB has concerns with the new standard operating procedures that spell out how the police will share records with the PCOB – an essential tool for the Board's ability to investigate potential police misconduct. City Manager Sam Sanders signed those guidelines on May 31.

The new guidelines, however, didn't include comments from PCOB executive director Inez Gomez and were “disappointing,” Mendez told Dexter Auction. The Board has since submitted comments to the City on the new guidelines.

“We really do need a truly independent counsel. It's not an optimal solution, because it may take a while for us to get a new lawyer, but I didn't think we could go on in the fashion that we were.”

Editor's note: An earlier version of this story contained two errors. The Board's current attorney spoke with Sands Anderson's ethics officer about the possible conflict of interest, PCOB Chair Bill Mendez said. Additionally, Mendez said he is unclear how aware the Board's attorney was of the Board's struggles over the information-sharing agreement with the Charlottesville Police Department. The firm has not responded to Dexter Auction's requests for comment.

I'm Dexter Auction's public health and safety reporter. You can catch me by email or on Facebook — I hear that's what the cool kids use these days. Let's chat!