When an administrative agency conducts adjudicative proceedings, such as a disciplinary hearing, the constitutional guarantee requires a fair tribunal. A tribunal is not fair unless the judge or other decision-maker is free of bias for or against a party. Absent a financial interest in the outcome, an adjudicator in an administrative proceeding is presumed to be impartial. To show a violation of the due process guarantee, a party must prove either actual bias or that the situation is one “in which experience teaches that the probability of actual bias on the part of the judge or decision-maker is too high to be constitutionally tolerable.” Proving bias of a hearing officer or hearing body is most difficult. Every once in a while, however, facts converge — as they did here for a second time — showing that the probability of bias is too high.
In Sabey v. City of Pomona (2013) 215 Cal. App. 4th 489 (Sabey I), a case I reported in the July 2013 issue of PORAC Law Enforcement News, the Court of Appeal held that “when a partner in a law firm represents a department within a city at an advisory arbitration regarding a personnel matter, and when the city’s decision-making body later reviews that arbitrator’s award for confirmation or rejection, the principles of due process prohibit the decision-maker from being advised on the matter by a different partner from the same law firm” (Id. at 453).
In 2009, Glenn Sabey was terminated from the City of Pomona’s Police Department. The City Council rejected an arbitrator’s decision reducing the termination to reinstatement with a suspension, and instead terminated Sabey. The attorney representing the Department before the City Council was from the same law firm (Liebert Cassidy Whitmore) as the attorney advising the City Council. The Court of Appeal determined that this arrangement presented an unacceptable risk of bias, and the appellate court ordered the decision set aside and for “the trial court to refer the matter back to the City Council for further consideration in light of independent legal advice. For this purpose, the clock is reset under the memorandum of understanding. Thus, the City Council shall have the time allowed under the memorandum of understanding for issuing a decision. If the City Council declines to review the arbitration record in light of independent legal advice and render a decision within the prescribed time, the advisory opinion and award shall become final” (Sabey I, at 499-500).
The purpose of hearing the matter with independent counsel and legal advice was “to eliminate the taint of [the advising law partner’s] involvement” (Id. at 499). It was a condition of allowing the City Council to decide the matter again.
In an unpublished decision issued December 19, 2017, the Court of Appeal set aside the City Council’s latest action. The City Council had again cast aside the arbitrator’s decision and terminated Sabey. This time, the Court of Appeal ordered Sabey reinstated in accordance with the arbitrator’s advisory decision. The court found that, considering what happened after the first appellate decision, “it is appropriate to allow the recommendation of the [arbitrator] to stand as the final decision” (Sabey v. City of Pomona, 2nd App. Dist., Case No. B271417) (Sabey II).
Sabey II concerns what happened after the matter was sent back to the City after the first appellate case. Instead of holding a hearing as before, and with independent counsel as required, the City met in closed session and voted to terminate Sabey. It didn’t notify him that it was hearing the matter again, nor did it even notify him of its decision. It was not even on the Council’s agenda as a personnel matter, and nothing in subsequent minutes indicated independent counsel was present. I only learned of the decision inadvertently when I called the attorney representing the City to see if it might be interested in resolving the matter. During that telephone call, the attorney representing the City said that the Council had already decided to terminate Sabey again. We were floored and of course objected to the failure to provide notice under the Brown Act and due process. We asked who the required independent counsel was. The City’s attorney backtracked.
Then, the City all but admitted it rendered a second decision to terminate, without providing notice: it issued a notice nullifying its second decision terminating Sabey and announced it would hold a third hearing. Sabey brought an action in the federal court for due process violations. The City filed a motion to dismiss for failure to state a claim, arguing it had nullified its second decision terminating Sabey. The federal court dismissed the matter without prejudice, stating that until the Council issued a third decision terminating Sabey, the matter was not ripe for review.
The parties then geared up for a third hearing. In the interim, I wrote to the Council that I believed it had violated the judgment and writ by failing to conduct the second hearing in accordance therewith and that at any rate, a third hearing on the same issue with the same facts violated due process notions of fairness and impartiality, or that the circumstances presented an unacceptable appearance and risk of bias and unfairness. There was no response. We wrote asking for details about the second decision, including how the Council voted, what the findings were and whether there was independent counsel. There was no response.
Out of the blue, and on the eve of the third hearing, more than a year after its second decision, and after we had repeatedly asked the City for information concerning the second hearing, it incredibly denied it had ever held a second hearing or rendered a second decision. Nevertheless, the hearing went forward. Not surprisingly, the Council promptly terminated Sabey for a third time.
Sabey filed a second petition for writ of administrative mandate. He argued that under the circumstances where the Council was already deemed to have been tainted and independent counsel was deemed necessary to eliminate the taint, there was no presumption of impartiality. Plus, its rendering of a second decision — even if nullified — only deepened the constitutional infirmity; moreover, the City’s refusal to provide any information about the second hearing and claiming it never occurred showed it was not neutral but hostile. None of this could be fixed in a third hearing. We further argued the decision must be set aside because the City did not follow this court’s directive. Instead, it held a second hearing that appeared not to comport with the requirement of independent counsel nor with due process. The Superior Court denied the petition for writ of mandate, finding no evidence that by the time of the third hearing, the Council was biased or that there was a high probability of bias.
We filed a second appeal and the matter was assigned to the same appellate justices. In addition to the above arguments, we reminded the court that it could not have made it easier for the City: all it had to do was hold a second hearing with independent legal counsel and it appeared it didn’t even do that.
The Court of Appeal reversed.
First, the court determined that the City did not follow its direction to reconsider the matter with independent counsel — there was no evidence such was present at the second hearing. Second, the court determined that the third hearing violated Sabey’s due process rights, finding that “a combination of factors in connection with the City Council’s proceedings created an unacceptable risk of bias and dictated a finding that it violated Sabey’s right to due process.” Because, absent showing a financial interest, it is often difficult to prove actual bias, case law only requires that a party present “specific evidence demonstrating a particular combination of circumstances creating an unacceptable risk of bias” (Id., citing Today’s Fresh Start, Inc. v. L.A. County Office of Education”  57 Cal. 4th 197, 219). Though it often seems a decision-maker has bias, risk of bias will never be implied (Nasha v. City of Los Angeles  125 Cal. App. 4th 470, 483). Risk of bias must be shown by concrete facts. A “party’s unilateral perception of an appearance of bias cannot be ground for disqualification” (Breakzone Billiards v. City of Torrance  81 Cal. App. 4th 1205, 1237). An important consideration in this case was that risk of bias is “not established merely because a decision-maker previously erred and has to decide an issue again” (People v. LaBlanc  238 Cal. App. 4th 1059, 1079). Indeed, in Sabey, the court said that the Council had decided his case twice did not alone create an unacceptable risk of bias for the third hearing. Rather, it was a combination of the specific facts of this case that concerned Sabey and the court.
In Tumey v. Ohio (1927) 273 U.S. 510, 532, the U.S. Supreme Court held that “[e]very procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear and true between the State and the accused, denies the latter due process.” In Sabey II, the court noted that it gave the Council a “simple directive” to reconsider the case in light of independent legal advice to remove the risk of bias created in the first decision in 2010. Instead, the Council considered the matter the second time without giving Sabey notice; without obtaining independent legal advice; did not notify Sabey of the decision, that I only learned of it through a telephone conversation some time after, and it was only after I objected to the second hearing that the Council sent a notice setting aside its second decision. The court found the City’s failure to retain independent counsel for the second hearing was intentional, and all of the facts together established a “hostile attitude toward the notions of fairness and due process, and indicates the City Council had no intention of being a neutral, unbiased decision-maker.”
Moreover, the attorneys representing the City refused to disclose what had happened at the second hearing and then denied any action had been taken. Instead of acting like an unbiased decision-maker, the City acted like an adversary. “After all that, City Council held a third hearing and again voted against Sabey.” The court held it “defies reason” to presume the Council was unbiased and it was “highly improbable” the Council members kept open minds.
Independent of the City’s failure to follow the court’s ruling to secure independent legal counsel to act as advisor, the court, as a separate ground to set aside the third decision, found the combination of factors required the arbitrator’s advisory decision to stand as the final decision of the City. Credit is due to LDF Panel attorney Howard Liberman, who not only persuaded the arbitrator in 2010 to reduce the termination to a suspension, but also astutely objected at the administrative level. This thereby preserved for later argument the original due process concern of having two attorneys from the same private law firm, which eventually allowed us to raise those concerns leading to the Sabey I decision.