Bailey: Disqualify North Myrtle Beach's lawyers

NORTH MYRTLE BEACH -- William Bailey, the former public safety director who is suing this city over his dismissal in April, wants a judge to disqualify the city's lawyers because of alleged conflicts of interest.

Kenneth Moss, a Little River lawyer who is representing Bailey, filed documents in federal court on Sunday requesting the disqualification.

Moss said the city's law firm - Columbia-based Gignilliat, Savitz & Bettis LLP - cannot represent both the city and the top city officials named in Bailey's lawsuit, including former city manager John Smithson, spokeswoman Nicole Aiello and Steve Thomas, the assistant city manager.

City officials normally have personal immunity from civil lawsuits that stem from actions they take as part of their official duties, as long as those actions are in good faith. That immunity can be stripped when the actions fall outside the scope of those duties or when the actions are intended to harm another person.

Moss said Smithson, Aiello and Thomas acted outside of their official duties and with a malicious intent to harm Bailey.

In addition, not all of Bailey's allegations involve all three officials and some are directed only at the city as an entity. That means the legal defense for one defendant could be different than the legal defense for another in some cases.

"One lawyer can't represent the city without throwing the individuals under the bus, and he can't represent the individuals without throwing the city under the bus," Moss said. "He would have to be speaking out of both sides of his mouth. They all need individual lawyers."

Dirk Aydlette, a lawyer who represents the city, declined to comment on Moss' court filings.

"The rules of professional conduct prohibit attorneys from trying a case in the media," Aydlette said in an e-mail to The Sun News. "We will be filing responses to Mr. Moss' motions shortly."

Bailey also wants a judge to sanction the city's lawyers for filing a fraud claim against him in a countersuit last month.

The fraud claim stems from the city's allegation that Bailey lied about his intentions to retire during a telephone conversation that took place after Smithson had given him an ultimatum to resign of be fired.

The city says Bailey led officials to believe that he needed more time to consider Smithson's ultimatum when, in fact, he had already started the process to secure his retirement.

Bailey claims in court documents that the telephone conversation was part of settlement negotiations between himself and the city. Such negotiations are not admissible in court.

"The allegations were without merit and were simply an attempt to smear Bailey and me in the press," Moss said.

A judge has wide latitude in cases where sanctions are warranted, ranging from simply striking the claim to fining the law firm that filed it.

No court date has been set for Bailey's conflict of interest or sanctions requests.

Moss, in an interview with The Sun News, cited several potential conflicts that he plans to raise during a court hearing.

For example, Moss said Smithson should not have been the one to hire Gignilliat, Savitz and Bettis to represent the city because he is a defendant in the case. That decision should have been made by the City Council, Moss said, but the council has taken no such action.

In addition, the law firm representing Smithson and others gave advice to the city's grievance committee during a hearing involving Bailey this year. That committee is supposed to be autonomous and provide objective recommendations to the city manager regarding employee disciplinary matters.

Also, Mayor Marilyn Hatley said she chose not to intervene when Bailey filed a harassment claim against Smithson because the law firm representing Smithson advised her not to.

Bailey was dismissed by the city on April 30 after Smithson said the former public safety director lied about the storage of his gun on the night it was stolen from his truck.

Smithson said Bailey told him the gun had been locked in his truck's glove compartment. Bailey - whose truck does not have a locking glove compartment - said he never used the word locked, but told Smithson the gun had been secured.

Moss said Smithson used the stolen gun as an excuse to get rid of Bailey because he wanted to make the former public safety director a scapegoat for criticism the city had received over its response to a 2009 wildfire that destroyed 76 homes in the Barefoot Resort neighborhood.

Smithson suspended Bailey and demoted him to lieutenant before giving him an ultimatum to either resign or be fired by April 29.

Moss said Smithson chose that date because he thought it would prevent Bailey from achieving his 20-year employment anniversary on April 30 and, thereby, qualify for state retirement benefits.

However, Smithson miscalculated Bailey's anniversary date by one day - the actual anniversary was April 29 - and Bailey was able to purchase additional years of service to qualify for full retirement benefits prior to his dismissal.

Bailey filed a lawsuit in June against the city, claiming Smithson and others conspired to defame him, violated his constitutional rights and wrongfully forced him to retire from his job. He is seeking actual damages of at least $11 million and unspecified punitive damages.