To: All Police Chiefs and Sheriffs
From: Martin J. Mayer
REPRESENTATION OF PERSONNEL BOARDS
December 26, 2003
An assistant city attorney who has, frequently, provided legal advice and guidance to a personnel board, civil service commission, etc., in the past, cannot serve as an advocate for a party (e.g. police department) in an adversarial proceeding before the board or commission.
On December 23, 2003, in a unanimous decision, the California Court of Appeal, Fourth District, stated that “due process in an administrative hearing also demands an appearance of fairness and the absence of even a probability of outside influence on the adjudication.” (Emphasis in original.) The assistant city attorney, who served as the police department’s advocate, had “…other interactions with the Board (which) give the appearance of bias and unfairness and suggest the probability of his influence on the Board.”
The Court stated that it was not attributing any bad faith to the assistant city attorney, nor the Board, however, “… given the frequent contact between the (assistant city attorney) and members of the Board, it is only natural for them to have developed a relationship.” The Court draws the distinction between the roles of advocate and advisor and shows why the conflict arises.
“A prosecutor, by definition, is a partisan advocate for a particular position or point of view. Such a role is inconsistent with the objectivity expected of administrative decision makers.” The legal advisor to the board must be neutral, just as a board or commission must be neutral. “To permit an advocate for one party to act as the legal advisor for the decision maker creates a substantial risk that the advice given to the decision maker with be skewed…” That is true whether or not it is intended. As the Court points out, “(i)t would only be natural for the Board members, who have looked to (the assistant city attorney) for advice and guidance, to give more credence to his arguments when deciding plaintiff’s case.”
HOW THIS AFFECT YOUR AGENCY:
When a city or county agency (e.g. police or sheriff’s department) imposes discipline on an employee, and that action is appealed to the personnel board or commission, it would benefit the city and/or county to retain the services of an outside attorney to prosecute the case on behalf of that agency and totally avoid this issue.
The Court acknowledges that no absolute prohibition exists against the city attorney’s office representing both a board and other city agencies. However, it is imperative that an “ethical wall” exists which insures that “…the adviser to the decision maker is screened from any inappropriate contact with the advocate.” That would not only include specific contact regarding that case, but also, for example, staff meetings where cases are discussed and, perhaps, even where legal strategies are developed, or the philosophy of the city attorney or county counsel (after all, there is only ONE) is set forth. The burden to prove that no improper contact has occurred, is on the city or county. In Quintero, the Court ruled that “…defendants did not meet their burden of showing the required separation…” (Emphasis added.)
Unfortunately, once again, we find a righteous disciplinary decision, brought by a public agency against an employee for rule violations, vacated because of procedural errors. In Quintero, the Court remanded the case to the Superior Court with directions to grant the employee’s petition for writ of mandate to reverse his termination from employment, and ordering a new hearing on the merits. One other concern, not addressed by the Court: can the re-hearing be held before the same members of the Board or have they, also, been tainted by the first hearing?
As always, we urge that you consult with your agency’s designated legal advisor before taking any legal action. If you have any questions regarding the above, please feel free to contact Martin J. Mayer at 714 – 446-1400 or mjm@jones-mayer.com.