Authority Of Gov. Code Section 31000.6 Does Not Include Ordering

Government Code section 31000.6 gives the sheriff (and the assessor) the right to independent legal counsel to assist them in the performance of their duties, when a conflict of interest exists between the sheriff (or the assessor) and the board of supervisors which, thereby, prevents the county counsel from representing them.

When such a conflict exists, the county attorney, by law, must represent the interests of the board. If the board or county counsel disagrees that a conflict exists, the sheriff (or assessor) can file an ex parte application with the presiding judge of the superior court to determine whether or not such a conflict does exist.

On September 15, 2010, the Third District Court of Appeal, in a 2-1 decision, ruled in Strong v. Sutter County Board of Supervisors that, pursuant to Gov. Code sec. 31000.6, a Superior Court can only find that (1) a conflict of interest exists [between the assessor or sheriff and the Board]; and (2) that the creation of an ethical wall [in the Office of the County Counsel] would not be appropriate BUT the court cannot, thereafter, require the Board to appoint independent legal counsel.  To accomplish that, the sheriff or assessor must utilize a different state code, as discussed below.

Strong, who is the county assessor, denied a hospital’s claim for welfare exemptions entitling it to a tax refund. Subsequently the Board reached a tax refund settlement with the hospital which Strong opposed. Strong decided to challenge the Board’s action and, under 31000.6, requested that the Board secure independent legal counsel to represent him since the county counsel was representing the Board and, therefore, couldn’t represent him, as well.

The Board denied the request for separate counsel and Strong filed an ex parte application under 31000.6 to compel them to provide him with independent counsel. The trial court agreed a conflict existed and ordered the Board to secure counsel for the assessor. The Court of Appeal reversed the Superior Court’s action holding that the court did not have that power under 31000.6.

A Courts Authority Under 31000.6

The Court of Appeal held that “under the plain language of section 31000.6, the court has no authority to do anything other than determine whether a conflict of interest exists and determine whether an ethical wall can be created to remedy the conflict. To the extent the court here found Strong was acting within the performance of his duties and ordered the board to select and employ independent counsel for Strong, the court acted beyond its limited authority in the ex parte proceeding then before it.”

The Court of Appeal agreed that “section 31000.6 imposes a duty on the board of supervisors to contract with and employ legal counsel to assist the assessor (or the sheriff) in the performance of his or her duties when … the county counsel … would have a conflict of interest in representing the assessor (or sheriff).”

However, said the Court of Appeal, “there is no authority in the statute for the court to resolve, in an ex parte proceeding, … a dispute over whether the purpose for which the assessor (or sheriff) seeks independent counsel is within the performance of his or her duties. Nor is there any authority for the court to order that … the board of supervisors actually employ independent legal counsel for the assessor (or the sheriff).”

The Court of Appeal also noted that “although Strong might have pursued such a finding and such an order in a mandamus proceeding under Code of Civil Procedure section 1085, … he was not entitled to either in an ex parte proceeding under that statute (31000.6).”

However, the appellate court said that two legal proceedings are not necessary, “the question is simply which type of proceeding is appropriate in a given case.” “If the assessor (or the sheriff) and the board of supervisors disagree over whether county counsel has a conflict of interest … then an ex parte proceeding under section 31000.6 is the appropriate proceeding to resolve that dispute.”

However, if the dispute is over whether or not the sheriff or assessor was carrying out his or her duties, “then a regularly noticed mandamus proceeding under Code of Civil Procedure is the appropriate proceeding.”

How This Affects Your Agency

The Court of Appeal stated that it was obvious the “county counsel could not represent the board’s interest and defend the board’s decision to settle the (tax) claim and at the same time ethically advise Strong, as the board’s potential adversary, on the same matter. Based on these facts, it does not appear there was ever a reasonable basis for Strong to believe the board was denying him independent legal counsel because the board believed he should use county counsel instead. Thus, Strong knew from the outset that the dispute he was having with the board was not over whether a conflict of interest existed. He also should have known, from reading the statute, that section 31000.6 applies only to such disputes.”

In other words, the Court is saying the assessor should have known that he didn’t need to proceed under 31000.6 and should have utilized CCP 1085 instead. To reach that legal conclusion, however, the assessor or the sheriff would need the assistance of legal counsel.

To that end, the Court of Appeal stated that if the assessor (or sheriff) seeks to litigate this issue, he or she would have to proceed “either in propria persona or through an attorney not funded by the county, but this unavoidable necessity is not unreasonable, given that the court may ultimately determine the assessor (or sheriff) is, in fact, seeking legal assistance for a matter that is not within the performance of his duties.”

Additionally, said the Court of Appeal, “if the Legislature had intended an ex parte proceeding under section 31000.6 to provide a vehicle for resolving a dispute over whether the purpose for which the assessor (or sheriff) seeks legal assistance is within the scope of his duties, it could have said so. It did not ….”

As such, it is imperative that legal assistance be sought before proceeding under section 31000.6 in order to insure that the process is the appropriate one to take. It is not irrational to assume that if one does not utilize 31000.6, the county will then argue that the assessor or sheriff should have done so.

A broader remedy might be to seek legislative modification to 31000.6, as the Court of Appeal seems to suggest, but that approach is always problematic, at best, since it opens up the issue to other changes as well.  Such a decision must be made by those with more knowledge in the legislative process than we possess.

As always, consultation with your legal counsel is important when confronting legal issues. However, if you wish to discuss this case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.