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Supreme Court Rejects Bright-line Rule Barring Agency Attorneys from Performing Dual Roles in Unrelated Administrative Proceedings

The California Supreme Court ruled Monday that an agency attorney prosecuting a matter before the agency’s decision making body may also serve as advice counsel to the decision making body in unrelated matters. The ruling represents a victory for all public agencies that maintain adjudicative processes to resolve disputes.

In the underlying action, the State Water Resources Control Board (“Water Board”) issued a notice of proposed revocation of a water license against the Morongo Band of Mission Indians. One of the members of the enforcement team, Samantha Olson, who was prosecuting the action concurrently served as advice counsel to the Board in another, unrelated, proceeding. After unsuccessfully petitioning the Water Board to disqualify the enforcement team, the Band sought disqualification by way of a petition for mandamus relief filed in superior court. The Band did not demonstrate actual bias, but the trial court disqualified the enforcement team because it believed that public attorneys must be either advice counsel or prosecutor, but not both. The Water Board appealed.

In a divided decision, the Court of Appeal upheld disqualification. Writing for the majority, Justice M. Kathleen Butz reasoned that the “right to an impartial tribunal is compromised when an agency prosecutor is allowed to maintain too close a relationship with the administrative decision maker.” Citing Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810, the majority upheld disqualification, find that allowing a public attorney to act as prosecutor in one proceeding and advisor to the decision maker in another “creates an intolerable risk of bias and thus fails to comport with principles of due process.” “Human nature being what it is, the temptation is simply too great for the Water Board members, consciously or unconsciously, to give greater weight to Attorney Olson’s arguments by virtue of the fact that she also acted as their legal advisor, albeit in an unrelated matter.” The majority rejected the Board’s emphasis on its compliance with California’s Administrative Procedure Act to demonstrate Ms. Olson’s dual role did not violate due process. Dissenting, Justice Ronald Boyd Robie criticized the majority for ignoring “a presumption of honesty and integrity in those serving as adjudicators” in answering the question of whether there was a constitutionally impermissible risk of actual bias.

The Supreme Court granted the Water Board’s petition for review. And on Monday, the Court reversed the order of disqualification. Writing for a unanimous Court, Justice Joyce L. Kennard wrote that where no financial or other personal interest is present, and when agencies observe rules mandating an internal separation of functions and prohibiting ex parte communications, “the presumption of impartiality can be overcome only by specific evidence demonstrating actual bias or a particular combination of circumstances creating an unacceptable risk of bias.”

The Court’s ruling is relevant to all public agencies conducting quasi-judicial administrative processes to resolve disputes over nuisance abatement, zoning, planning, tax and fee liability, and the like. While a public attorney may not concurrently act in both advisory and prosecutorial capacities in the same action, a public attorney may simultaneously advise the agency on a matter before the agency, and prosecute a different matter, as long as the two matters are unrelated . Thus, the Supreme Court has clarified a public agency is not obligated to maintain an office of advising attorneys and a separate office of prosecuting attorneys. An agency is only required to maintain case-specific ethical walls to ensure that the prosecuting attorney has no off the record communications with an agency decision maker or advising attorneys, about the substance of that case, as the California Administrative Procedure Act provides. The agency tribunal is presumed to be impartial. A party seeking disqualification must demonstrate that the decision maker or advising attorney has a financial or other personal interest in the matter, or provide specific evidence of actual bias, or present circumstances creating an unacceptable risk of bias.

This ruling is good news for public agencies that must perform adjudicative functions with limited resources. Public attorneys may serve different roles within their employing agency, as long as the agency maintains safeguards to ensure the due process rights of individuals or entities that come before the agency.