City vows to appeal $3M judgment against police officials

by David L. Teibel on Nov. 17, 2006

Top cops ‘conspired against contractor, lawsuit says

Kevin M. Gilmartin claims he is being punished for angering thenTucson Police Chief Douglas F. Smith. The city will fight a $3 million civil judgment in a case that involves alleged bid-rigging by the current chief of police and a former chief. Even if the award stands, police Chief Richard Miranda will not be personally liable, said City Attorney Michael Rankin. A federal jury ruled in September that three police administrators conspired against Kevin M. Gilmartin in not awarding a $110,000 contract to Gilmartin’s counseling group in 1998. Gilmartin claims he is being punished for 1997 testimony that angered then-police Chief Douglas F. Smith. He said Smith ordered Miranda not to renew Gilmartin’s contract, and that Miranda lied about Smith’s influence. Miranda denies Gilmartin’s claim.

The city has filed motions seeking a new trial on the grounds that U.S. District Judge Frank R. Zapata made errors in law during the trial. Rankin expects the motions to be heard in federal court within two months. If those motions are unsuccessful, Rankin said, the city will appeal to the 9th U.S. Circuit Court of Appeals. Rankin said the city will appeal both the amount of the award to Gilmartin and an associate, John Harris, and the verdict itself. Jurors found that Smith, Miranda and now-retired Assistant Chief Jesse Ochoa conspired in 1998 to not give Gilmartin’s group a counseling contract, said Richard M. Martinez, lawyer for Gilmartin and Harris. Martinez said he is confident the award and verdict will be upheld. Martinez said the amount of the award grows at a rate of 10 percent a year, even while it is under appeal. Gilmartin’s group had provided counseling services to police for five years before it lost the contract to Sonora Behavioral Health Associates in 1998. Gilmartin is a nationally known police and organizational psychologist, providing lectures and seminars to state, local and federal law enforcement agencies across the country. After losing the contract, Gilmartin and Associates filed a protest with the city claiming Smith was so “infuriated” with Gilmartin’s testimony in another suit against the department that he told the contract evaluators, including Miranda and Ochoa, not to award the contract to Gilmartin. The contract went to rival Sonora. The city found nothing inappropriate in the award to Sonora. Gilmartin then filed suit. Smith could not be reached this week for comment, but at the time the protest was filed he said, “The allegations are ludicrous.” Reached Wednesday in Honolulu, where he was working with the Honolulu Police Department, Gilmartin said the testimony that angered Smith came in a suit filed by members of the department’s air support unit alleging misconduct in the unit. Gilmartin said he was asked a question based on a hypothetical situation about the ethics of city employees repairing privately owned aircraft on

city time. His testimony that it “apparently” would be unethical, angered Smith, Gilmartin said. Gilmartin and Martinez said Wednesday that Miranda, Ochoa and Smith lied about the contract award. “They took an oath and went into federal court and lied on the stand,” Martinez said. Speaking of Miranda and Ochoa, Gilmartin said, “They placed themselves on a public bidding review committee. “On two occasions they signed documents, under oath, that they were under no influence. “Miranda admits under oath, at trial, he was ordered, that Smith gave an order that any group I was associated with not be given the contract,” Gilmartin said. Miranda told the Tucson Citizen that was not the case. He said Smith told him Gilmartin and Associates was no longer eligible to have its contract renewed without the city putting it out to bid, and that Smith ordered that the contract not be renewed and that bids be solicited for the work. Miranda said he and Ochoa were truthful in all documents they signed and in their court testimony. “At no time was I under the influence of Doug Smith, and I was fair and honest in my evaluation of the proposals,” Miranda said, adding he and Ochoa voted to award the bid to Sonora because they thought that group had submitted the best proposal. “My conscience is clear,” Miranda said. City Manager Mike Hein said, “I have complete confidence in the chief. “The chief,” Hein said, “has unquestionable moral compass.” Ochoa onThursday deferred to attorney Michael B. Smith for comment. Smith could not be reached. Miranda, Smith and Ochoa will not have to pay $2.9 million out of their pockets. If the award stands. It will come from a city fund managed by the Department of Risk Management for such things as liability awards, Rankin said.

“They are indemnified because they are acting in the course of their employment,” Rankin said, adding, “It continues to be my position and our decision that Chief Miranda didn’t do anything wrong.” Police Chief Richard Miranda denies the claim that Gilmartin was unfairly denied a city contract.

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