Judge hands down ruling for city and against fired police chief Steve Gesell

Stephen Gesell, the former Cottonwood police chief who was fired in September 2023, has experienced a major setback in his suit against the city alleging he was wrongly terminated.

In a 23-page ruling issued on Dec. 5, U.S. District Judge Dominic Lanza rejected Gesell’s attempt to remove the city’s attorney from the suit. Lanza subsequently ordered both parties to file motions with regard to the city’s request the case be dismissed.

Gesell Terminated as Police Chief

An investigation by the Civil Rights Division of the Attorney General’s Office in spring 2023 determined that Gesell had discriminated against a female Cottonwood police officer in 2022 based on her sex and disability. The Cottonwood City Council met in executive session on May 9, 2023, to discuss a conciliation agreement.

Due to Gesell’s actions, to settle the complaint, the city agreed to promote the officer to detective and award her $67,142.92 in back pay. Though Gesell had no legal right to attend that executive session, he attempted to do so and was “irritated, agitated, angry, curt, disrespectful and rude,” “then visibly lost control of [his] temper” in the presence of other employees, city council members and the members of the public.

Gesell was placed on leave the following day by the acting city manager.

Four months later, the city’s third-party investigating firm recommended that he be terminated due to his actions and discrimination against the female detective and the then-city manager fired him for “combative and remorseless behavior and … lack of selfawareness or acceptance of any responsibility.” In March 2024, Gesell filed suit in Yavapai County Superior Court against the city of Cottonwood, then- Mayor Tim Elinski, former City Manager Scotty Douglass, former City Attorney Jennifer Winkler, Human Resources Manager Amanda Wilber, then- Councilwoman Helaine Kurot and Deputy City Manager Jesus “Rudy” Rodriguez, the staffer he had threatened. The case was subsequently moved to District Court.

July 2024 Motion to Dismiss

Cottonwood’s legal counsel, Justin Pierce, of Pierce-Coleman PLLC, filed a motion to dismiss on June 10, citing a litany of discrepancies in Gesell’s notice of claim and lawsuit; arguing that Gesell’s complaint, filed by Phoenix lawyer Kimberly A. Eckert, “misstates the law, mischaracterizes the record and attempts to assert non-existent claim, such as seeking civil relief for alleged violations of a criminal statute;” “failed to comply with the requirement to serve the individual defendants with a notice of claim;” and “improperly disclosed material that is protected by the attorneyclient privilege and confidential under Arizona’s open meeting law.” Additionally, Pierce argued that Wilber should be dismissed outright as she was not named in the original notice and because Gesell “never even attempted to deliver a copy to her,” instead improperly adding her to the case later, while the other notices were not delivered to any of the defendants, but instead dropped off with the deputy city clerk.

Gesell was an at-will employee who could be fired without cause or notice by the city manager, Pierce argued, and was not protected by the Arizona Peace Officer Bill of Rights like rank-and-file officers because Cottonwood City Code 2.44.030 reads “the police chief shall be appointed by and shall serve at the pleasure of the city manager.”

Dec. 5 Ruling

In his opinion, Lanza wrote that in Arizona, attempts to disqualify opposing counsel are “view[ed] with suspicion” and “only in extreme circumstances should a party to a lawsuit be allowed to interfere with the attorney-client relationship of his opponent.” Any disqualification must be “least burdensome upon the client or clients.”

On behalf of Gesell, Eckert had argued three points:

■ First, the firm’s Stephen Coleman had represented the city in the female police officer’s 2022 complaint and had “advised [Gesell] on the reassignment decision” of the female officer.

Pierce-Coleman represents Cottonwood in all employment-related matters under an agreement with the Arizona Municipal Risk Retention Pool.

■ Second, because the firm was involved in the decision to reassign the police officer and because Winkler now works for the firm, it “cannot protect its interests, its employee’s interests and its client’s interest as they will likely be antagonistic.” The plaintiff “also implies in general terms that [Pierce- Coleman]’s past and ongoing relationship with Cottonwood interferes with its ability to represent the defendants” as a conflict of interest.

■ Third, the plaintiff suggested Coleman could be called as a witness.

Pierce countered that the motion to dismiss his firm “is a baseless and transparent attempt to weaponize a disqualification motion for tactical purposes” and “does not clearly state a legal basis.” Lanza determined that Gesell never had any attorney-client relationship with Coleman or the firm, nor had he produced evidence to prove one ever existed — Gesell “does not specifically allege that Coleman or anyone else at PC gave him advice, but rather complains that ‘[t]hose attorneys failed to advise [him].’” Based on the “passive language” used in the motion, Lanza questioned whether Gesell even spoke to anyone at the firm, writing that Gesell “merely asserts that ‘Pierce-Coleman attorneys were most likely contacted’” about the officer’s reassignment.

The defendants provided emails showing that Gesell sent them to the firm four days after his decision to reassign the officer, so the court agreed that “Coleman never gave, and could not have given, advice” on the reassignment.

“An organization’s lawyers do not automatically represent its employees,” Lanza also wrote, opining that even if Coleman had spoken to Gesell, “it would have been objectively unreasonable for [the] plaintiff to believe this interaction resulted in the formation of a personal attorney-client relationship.” Regarding the alleged conflict of interest, Lanza stated that “Plaintiff has not come close to establishing the existence of a significant risk that counsel will be unable to effectively represent defendants,” all of whom “consented to, and wish for” Pierce- Coleman’s legal counsel.

Because Gesell has not and has never had an attorney-client relationship with the firm, Lanza ruled Gesell “has not shown that disqualification is warranted” and “he is not, in other words, the party this rule is meant to protect.” Lanza agreed with the defendants that calling Coleman as “a witness is remote. Any testimony he could provide is either privileged or irrelevant.” The judge added that under Ethical Rule 3.7b, a “lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness” given some stipulations, none of which Eckert made in her motion.

Pierce had asked for sanctions against Gesell and Eckert, which Lanza denied, ruling that Eckert’s arguments may be “poorly developed” but were “nonfrivolous.” Regarding sanctions for disclosing material from the executive session that Gesell obtained and disclosed, “that issue is not yet ripe,” Lanza wrote.

Gesell’s Response to Motion to Dismiss Lanza ordered Eckert to respond the defendant’s July motion to dismiss, and she filed a response on Dec. 18.

Eckert argued that the notices of claims were properly delivered to the defendants through the Cottonwood deputy clerk.

She offered no explanation as to why this was legal or valid, given that Douglass and Winkler were no longer city employees and Wilber was not named in the original notice of claim.

The motion then reiterated the argument about denial of due process, claiming “the conduct shocks the conscience.” Eckert argued that statements by Kurot about Gesell’s behavior on May 9, 2023, were defamatory — “Kurot published false statements to individuals and at least one media outlet who claimed Chief Gesell had been fired for threatening Defendant Rodriquez [Rodriguez].” She then demanded punitive damages and defended the disclosure of confidential executive session material.

City’s Next Motion to Dismiss

In Pierce’s Dec. 23 motion to dismiss, and responding to Eckert, Pierce argued that Eckert’s assertion about the notices of claim “asks this court to rewrite the Federal Rules of Civil Procedure and the language of” relevant state law.

Pierce restated that Gesell was an at-will employee, and took a jab at Eckert’s language, writing that she provided “no explanation of why defendants’ alleged conduct was so contrary to the fundamental principles of law that [it] clears the exceptionally high ‘shocks-the-conscience’ standard enunciated by the Ninth Circuit.” Pierce added the city staff have qualified immunity from due process liability and are thus immune from punitive damages.

Regarding Kurot’s statements, Pierce argues that Gesell “seems to believe he can ignore controlling authorities and falsely label himself as a private citizen,” although Arizona courts have explicitly ruled “a police officer is a public official for purposes of defamation law” governing libel and slander; “thus, plaintiff cannot avoid his heightened burden of proof by burying his head in the sand.” Additionally, Pierce argued Kurot’s statements that Gesell’s “demeanor was ‘threatening’ and that he ‘crossed a line’” met no empirical test to be considered statements of fact, but rather represented her personal opinions, so they are non-actionable in a defamation claim.

Pierce concluded by reiterating that the confidential executive session material was protected by attorneyclient privilege, so even if the content made its way into Gesell’s possession, that privilege cannot be waived at Gesell’s whim.

Pierce again moved for dismissal.