Issue
The California Court of Appeal (Fourth Appellate District) recently addressed the issue of whether a city attorney could represent the city in an employment case while concurrently acting as the legal representative for the city’s personnel board in other matters. (Quintero v. City of Santa Ana (2003 Daily Journal, D.A.R. 14,045 Cal.App. 4th Dist., December 23, 2003))
Facts
Raul Quintero, an employee of the Santa Ana Police Department, appealed his termination to the Santa Ana Personnel Board. After the Board upheld the termination, Employee filed an action in superior court challenging the Board’s decision, arguing that he did not receive a fair hearing because the assistant city attorney who represented the Police Department and the City in his appeal to the Board was concurrently acting as the legal representative for the Board in other matters. The trial court denied Employee’s petition, and Employee appealed to the Court of Appeal.
Appellate Court Decision
The Court first noted that, “in the context of administrative law, there is no absolute prohibition against the city attorney’s office representing both the Board and other city agencies such as the police department.” However, there must be an adequate separation of the two roles and the attorneys representing them. It is inappropriate for one person to simultaneously perform both functions – “the attorney may occupy only one position at a time and must not switch roles from one meeting to the next.”
Here, the Court determined that the City did not show the required separation, because the assistant city attorney who represented the City and Police Department in Employee’s appeal to the Personnel Board had an ongoing relationship with the Board. For example, in another employment case that was ongoing at the time of Employee’s case, the assistant city attorney appeared in superior court on behalf of the Board. Furthermore, he provided assistance and advice to the Board regarding the development and adoption of new rules. At one point, the Personnel Board even directed him to initiate a process to amend the municipal code to address personnel procedural issues.
The Court concluded that the assistant city attorney’s frequent contact and ongoing relationship with the Personnel Board was enough to show the probability of actual bias. In other words, there was a chance that the Board, which had looked to the assistant city attorney for advice and counsel, would have given more credence to his arguments when deciding Employee’s case. Therefore, because there was “the appearance of unfairness,” the Personnel Board hearing was invalid and the Court directed the superior court to order a new hearing before the Board.
This case involves a continuing discussion of the issue of the role of city attorneys, as addressed in our Legal Alert, “Appellate Court Extends Prosecutor/Advisor Distinction For Local Agency Counsel,” May 28, 2003. This case may also have impacts on other public agencies, such as school districts, where their regular attorney may, in a personnel matter, advocate to the governing board that an employee should be disciplined. We would recommend consulting with your legal counsel about the potential impacts of this case.
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