215 Cal. App. 4th 489
Cal. Ct. App.2013Background
- Sabey, a Pomona police officer, received internal affairs findings leading to a termination for multiple policy violations.
- An advisory arbitration was pursued by Sabey; the arbitrator sustained most findings but not lewd conduct, converting the termination to a suspension.
- The City’s chief labor negotiator, Brown, from the same law firm (LCW), advised the City Council after the arbitrator’s award.
- LCW implemented an ethical wall between Bray (advocate) and Brown, preventing cross-access to each other’s files regarding Sabey.
- Sabey objected to the same-law-firm advocate and advisor arrangement, arguing due process was violated due to potential bias.
- The trial court denied relief; the appellate court reversed and remanded to obtain independent legal advice so the City Council could reconsider with tainted influence purged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does dual role of advocate and advisor from same firm violate due process? | Sabey argues bias from a single firm violated due process. | City argues Howitt rule does not apply to private firms; screening cures bias. | Yes; due process barred dual roles from same firm; remand for independent advice. |
| May the City Council proceed with arbitration review after independent advice is obtained? | Council cannot rely on tainted advice; should be disqualified otherwise. | Council can proceed with proper review if independent counsel is used. | Remand to obtain independent legal advice and reconsider the record. |
Key Cases Cited
- Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal.App.4th 81 (Cal. Ct. App. 2005) (appearance of unfairness when advocate also advises decision maker)
- Quintero v. City of Santa Ana, 114 Cal.App.4th 810 (Cal. Ct. App. 2003) (board's bias from ongoing relationships with counsel)
- Howitt v. Superior Court, 3 Cal.App.4th 1575 (Cal. Ct. App. 1992) (dual roles may be appropriate with proper screening; burden on law office)
- Morongo Band of Mission Indians v. State Water Resources Control Bd., 45 Cal.4th 731 (Cal. 2009) (appearance of bias sufficient to invalidate agency action)
- Midstate Theatres, Inc. v. County of Stanislaus, 55 Cal.App.3d 864 (Cal. Ct. App. 1976) (two roles by same attorney in a government proceeding articulation)
- DeRose v. Carswell, 196 Cal.App.3d 1011 (Cal. Ct. App. 1987) (briefs/arguments as admissions in evaluating facts)