Palm Springs is continuing to use an outside legal firm to represent it on issues regarding College of the Desert as the city has yet to come to an understanding with the school and the law firm Best, Best & Krieger over a possible conflict of interest.
Last month, the Palm Springs City Council unanimously voted to authorize the city to hire Colantuono, Highsmith & Whatley to represent it on issues regarding COD. City officials have expressed concern that the college has paused plans for a Palm Springs campus and complained that college leaders have been incommunicative.
Palm Springs City Attorney Jeffrey Ballinger wrote in a memo to the council that the city was looking to hire an outside law firm because state ethics rules would prohibit his firm, Best, Best & Krieger, from representing the city on the matter while another lawyer with his firm provides legal services to COD. That lawyer, Carlos Campos, simultaneously serves as the city attorney for the City of Coachella.
Ballinger said that COD could provide a written waiver to the city stating that it would allow the city to use him as its attorney. Ballinger said that doing so is commonplace in such situations where opposing parties are represented by the same firm. However, while the city had reached out to COD about providing such a waiver, COD had not done so as of the day of the council meeting, Nov. 18.
During the meeting, the council requested that the city reach out to COD again about providing the waiver. At the same time, the council moved forward with hiring Colantuono, Highsmith & Whatley for any needed legal services in the meantime.
Then-Mayor Christy Holstege called it "really sort of upsetting to have to use taxpayer dollars to just find out what is happening with our taxpayer dollars."
On Tuesday, COD Superintendent/President Martha Garcia told The Desert Sun that she and two COD trustees had discussed the waiver and agreed to it.
"I want to communicate very candidly that Trustee [Aurora] Wilson, Trustee [Rubén] Pérez and I discussed it with the attorney, and obviously that's in consideration, and no action was taken from the law firm, obviously, but we agreed to the waiver," said Garcia.
When asked by The Desert Sun if that meant a decision about the waiver was now in the law firm's court, Garcia responded, "yes."
Campos says COD board still deliberating
On Friday, Campos told The Desert Sun that the college's board is considering the request for a waiver but has not taken any action on it.
"Overall, there was never any action taken on it one way or another," he said. "It's still up for consideration, it's not a done deal. There might be updates, I can't speak for the college itself, but for right now they are currently considering it."
Campos declined to offer additional details about why the college's board is still deliberating on the request.
"I don't have any specifics on it, honestly," he said. "I think what happens, right, is that there is information that gets out there sometimes, that the college did this or didn't do that, but I could just speak that they are still considering the waiver."
Campos also said that the reason COD needs to grant a waiver is that the city is seeking to have Ballinger represent it on the COD-related issue. However, COD is not seeking to have Campos represent it on the issue. Instead, the school uses another law firm to represent it in real estate transactions and related issues, including the campus-related transactions with Palm Springs.
Campos said he and Best, Best & Krieger's role is to attend board meetings and provide "general counsel" to the college. For example, Best, Best & Krieger is currently assisting the college with its redistricting process.
"If we were advising COD on a matter like say real estate related to Palm Springs, then we, too, would need a conflict waiver on this end," he said. "But because there is another law firm that is advising the college that is why we're not involved. We're not advising on the COD side."
Campos said Best, Best & Krieger requested the conflict waiver from COD for Ballinger to represent the city even though Campos would not be representing COD on the issue "because we're conservative and want to make sure there are no issues with clients."
"We always just make sure we are at the highest of any sort of rules and that we make sure it's full disclosure and follow the proper process to do that," he said. "And that's where the waiver comes in."
He later added that securing such waivers is common practice for Best, Best & Krieger, which often has lawyers involved in opposite sides of litigation.
"I think right now this is what everybody is looking at [the College of the Desert issue] but this is something that we always know that we have clients and if there could be potential conflicts then we need to get conflict waivers or step out, that's the way it works," he said.
Campos said he has presented COD with the conflict waiver but cannot — and would not — provide legal advice to the college's leaders on whether to sign it.
"We would present it and say here's what it is, here's what it means and if you want to consult with somebody else you can," he said.
Campos also said that his firm would accept a signed conflict waiver if provided one by COD. He also added that without a waiver, he would not offer any legal advice to COD on issues involving the City of Palm Springs, including the campus issues.
On Thursday, Ballinger told The Desert Sun that the city had not yet received the waiver.
"I understand from my conversations with my partner, Mr. Carlos Campos, that they are having discussions internal to the COD about whether or not and to what extent they might grant a waiver," he told The Desert Sun. "One may be forthcoming, I don't know, but as of today I have not received that waiver from them."
Palm Springs has 2 main issues related to COD
Ballinger also said that when it comes to possible litigation with COD, there are two issues involved. The first is the planned COD campus on the former site of the Palm Springs Mall. COD purchased the mall site in 2018, but ground has not been broken on the project.
Earlier this week, Garcia told The Desert Sun that work cannot begin on the project until a feasibility study is completed, a process she said would likely take until June. Garcia said that study should have been completed before the land was purchased. However, Garcia told the city late Thursday that she had learned a needs assessment, which is a significant component of that feasibility study, had been completed. She said that in light of that, she was withdrawing a proposal from Friday's COD Board of Trustees meeting to approve a $49,000 contract to conduct such a study.
The second potential issue relates to a 119.3-acre property north of the Desert Highland Gateway Estates neighborhood the city gave to College of the Desert in 2010. COD originally planned to build a Palm Springs campus on that site before purchasing the more centrally located mall site.
A developer is in the process of purchasing the site from COD and is seeking to build homes on it. However, at the time the city transferred the parcel to COD, the city put a condition on the site that it must be used for educational purposes.
"The college may grant a waiver to the north site issue but not the bigger West Valley campus issue," Ballinger said. "Or they might grant a waiver for all the negotiations. I don't know, they are talking internally at this point."
Ballinger noted that an attorney from Colantuono, Highsmith & Whatley had recently submitted a public records request for information and documents regarding COD's planning for the Palm Springs campus.
The city's agreement with that firm is that the city pays for services by the hour and could terminate that agreement if COD were to authorize Ballinger to represent it.
Paul Albani-Burgio covers breaking news and the City of Palm Springs. Follow him on Twitter at @albaniburgiop and via email at firstname.lastname@example.org.
This article originally appeared on Palm Springs Desert Sun: Palm Springs, COD still in limbo over attorneys' conflict-of-interest waiver