Filed 4/16/13
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION TWO


GLENN SABEY,                                   B239916

        Plaintiff and Appellant,               (Los Angeles County
                                               Super. Ct. No. BS129042)
        v.

CITY OF POMONA,

        Defendant and Respondent.




        APPEAL from a judgment of the Superior Court of Los Angeles County.
James C. Chalfant, Judge. Reversed and remanded with directions.


        Lackie, Dammeier & McGill and Michael A. Morguess for Plaintiff and
Appellant.


        McCunne & Harber and Kristine J. Exton for Defendant and Respondent.


                              _________________________
       We hold 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 decisionmaking
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. Because the law partners owe each other fiduciary duties
the advisor partner is in the position of reviewing the efficacy of the advocate partner’s
work, there is “a clear appearance of unfairness and bias” (Nightlife Partners, Ltd. v. City
of Beverly Hills (2005) 108 Cal.App.4th 81, 94 (Nightlife)) rendering the risk of actual
bias too high to be constitutionally tolerable within the meaning of Morongo Band of
Mission Indians v. State Water Resources Control Bd. (2009) 45 Cal.4th 731, 737
(Morongo). Accordingly, we reverse the trial court’s decision denying the writ petition
of appellant Glenn Sabey (Sabey)—a police officer who is fighting his termination from
employment—in which he asserts a due process challenge to the decision of the City
Council (City Council) of the City of Pomona (City) rejecting an arbitrator’s award
reinstating Sabey to his job.
                                          FACTS
       Sabey’s misconduct
       Sabey dated Caroline Atarian (Atarian) for about a year. She was living in a
condominium complex in Corona. It had a pool and Jacuzzi secured by a fence and a
locked gate. Their relationship ended in 2000 or 2001. They had off and on contact for
many years. In 2008, she saw him in the Jacuzzi and told him that he was trespassing.
Atarian said she would call the police if she ever saw him in the complex again. He
returned on five or 10 occasions and illegally used the Jacuzzi. To gain access to the
Jacuzzi, he had to jump over the fence.
       On April 1, 2008, Atarian saw Sabey by the pool and she called the Corona Police
Department. When a responding Corona police officer asked for identification, Sabey
appeared to be irritated. He said that his girlfriend lived in the complex, and implied he
did not understand why the police had been called. Sabey acted as though he belonged at



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the complex. At one point, Sabey said he had an appointment with Atarian to cut his
hair. Soon after, he left.
       Subsequently, a Corona police officer spoke to a resident at the complex named
Cathy Lariviere. She said that in March she saw a man masturbating in the Jacuzzi.
Lariviere identified the man as Sabey.
       Sabey did not inform his watch commander of the incident or his contact with the
Corona police.
       Between April 2005 and December 2007, Sabey conducted unauthorized inquiries
on his own name with the National Crime Information Center (NCIC) in violation of
Justice Data Interface Controller (JDIC) rules. Sabey said he made the inquiries as a
demonstration for trainee officers.
       Internal Affairs findings
       The Pomona Police Department (Department) internal affairs office investigated
Sabey and found that he violated various provisions of the Department’s policies and
procedures by trespassing in violation of Penal Code section 602; by committing a lewd
act in public in violation of Penal Code section 647, subdivision (a); by committing two
misdemeanors and thereby impacting the way the public and another agency view the
Department and law enforcement; by engaging in conduct that is unbecoming of a
member of the Department, and which tends to reflect unfavorably upon the Department
or its members; by failing to report activities that may result in criminal prosecution; by
failing to report activities that have resulted in official contact by another law
enforcement agency; and by violating JDIC rules by making inquiries on his own name
with the NCIC.
       Notice of intent to terminate Sabey’s employment; termination
       Sabey was sent notice of intent to terminate his employment due to violations of
the Department’s policies and procedures. After two prediscipline Skelly hearings (see
Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194), the Chief of the Department, David
Keetle, recommended that the city manager terminate Sabey’s employment. The city
manager followed Chief Keetle’s recommendation.

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       Advisory arbitration
       Pursuant to the memorandum of understanding between the City and the City of
Pomona, Police Officers Association, Sabey requested an advisory arbitration to
determine whether he was properly discharged by the Department for cause. The City
was represented at the advisory arbitration by Debra L. Bray (Bray) from Liebert Cassidy
Whitmore (LCW). In his Advisory Opinion and Award, the arbitrator sustained all of the
findings made by internal affairs except as to lewd conduct. The award provided that
Sabey’s termination should be converted into a suspension without pay or benefits.
       The City Council’s response to the Advisory Opinion and Award
       In July 2010, Peter Brown (Brown) of LCW was the City’s Chief Labor
Negotiator. As a result, he regularly met with the City Council in closed session at City
Council meetings. After the City Council received the arbitrator’s Advisory Opinion and
Award, it asked Brown to be the City Council’s legal advisor. At that point, LCW
implemented an ethical wall between Bray and Brown. They did not talk to each other
about the Sabey matter, and they were prevented from accessing each other’s files.
       On July 19, 2010, Brown met with the City Council in closed session. He
presented on the Sabey matter. Through counsel, Sabey objected to attorneys from the
same firm acting as an advocate for the Department and as a legal advisor to the City
Council. On August 2, 2010, the City Council rendered a decision that adopted the
arbitrator’s factual findings but rejected the recommendation that Sabey’s termination be
converted into a suspension without pay or benefits. As a result, Sabey’s termination
from employment was made final.
       The writ petition; the motion
       Sabey filed a petition pursuant to Code of Civil Procedure sections 1094.5 and
1085. According to Sabey, he was denied due process of law and a fair hearing because,
inter alia, “[he] was terminated by a decision making body that received legal advice
regarding this matter prior to deciding whether to review the [arbitrator’s decision] from
the law partner of the attorney who represented the Department prior to and at the
[arbitration].”

                                             4
       In his follow up motion, Sabey additionally argued that the penalty of termination
was an abuse of discretion.
       The petition for writ of mandate was denied.
       This timely appeal followed.
                                       DISCUSSION
I. The Principles of Due Process; Standard of Review.
       When “an administrative agency conducts adjudicative proceedings, the
constitutional guarantee of due process of law requires a fair tribunal.” (Morongo, supra,
45 Cal.4th at p. 737.) A tribunal is not fair unless “the judge or other decision maker is
free of bias for or against a party. [Citations.]” (Ibid.) Absent a financial interest in the
outcome, an adjudicator in an administrative proceeding is presumed impartial. (Ibid.)
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 decisionmaker is too high to be constitutionally
tolerable.’ [Citation.]” (Ibid.)
       We independently review whether the facts support the trial court’s conclusion of
law that the hearing was fair. (Nightlife, supra, 108 Cal.App.4th at p. 87.)
II. Brown’s Role as an Advisor to the City Council Violated Sabey’s Right to Due
Process.
       Case law establishes that an attorney cannot act as both an advocate for an agency
and then as an advisor to the decision maker who reviews the result that the advocate
achieved. (Midstate Theatres, Inc. v. County of Stanislaus (1976) 55 Cal.App.3d 864 [the
same lawyer cannot represent the county assessor and advise the board of equalization in
the same proceeding].) In Nightlife, for example, the court held that the due process
rights of a permit applicant were violated when the same attorney who advised the city
that the application was insufficient later advised the hearing officer at the ensuing
administrative appeal. (Nightlife, supra, 108 Cal.App.4th at pp. 84–85.) The court noted
that “‘[t]he due process rule of overlapping functions in administrative disciplinary
proceedings applies to prevent the participant from being in the position of reviewing his

                                              5
or her own decision or adjudging a person whom he or she has either charged or
investigated.’ [Citations.]” (Id. at p. 92.) In Quintero v. City of Santa Ana (2003) 114
Cal.App.4th 810 (Quintero), overruled in part by Morongo, supra, 45 Cal.4th at p. 740,
the court held that a hearing before a city’s personnel board was unfair because the
deputy city attorney representing the city in a discharge case concurrently represented the
Board on civil matters and otherwise had an ongoing relationship with it. In the Quintero
court’s view, the deputy city attorney’s “other interactions with the Board [gave] the
appearance of bias and unfairness and suggest the probability of his influence on the
Board.” (Quintero, supra, at p. 814.)
       In contrast, “[p]erformance of both roles by the same law office is appropriate
. . . if there are assurances that the adviser for the decision maker is screened from any
inappropriate contact with the advocate.” (Howitt v. Superior Court (1992) 3
Cal.App.4th 1575, 1586 (Howitt) [applying the rule to two lawyers from the same county
counsel’s office].) The burden of providing the assurances rests with the law office
performing the dual roles. (Id. at pp. 1586–1587.)
       To our knowledge, the Howitt rule has been applied only to government lawyers.
The question presented is whether the Howitt rule applies to partners from a private law
firm who are fulfilling the advocacy and advisory roles of government lawyers on a
particular case. The answer is no.
       As a partner in LCW, Brown owed both Bray and LCW the fiduciary duties of
loyalty and care. (9 Witkin, Summary of Cal. Law (10th ed. 2005) Partnership, § 30,
pp. 604-606.) Consequently, when Brown advised the City Council, he was in the
position of reviewing the result achieved by his fiduciary.1 In our view, this creates an


1
       Below, the parties and the trial court assumed that Brown gave the City Council
substantive advice. In his declaration, Brown stated that the “[City Council] had me
present” on the Sabey matter. He provided no detail. The trial court sustained an
attorney-client privilege objection to an e-mail in which Brown identified the specific
advice that he actually gave. Thus, we have no admissible evidence regarding the
contents of the advice that Brown provided. On appeal, the parties proceed as though
Brown gave substantive advice that impacted the City Council’s decision on the merits of

                                              6
appearance of unfairness and bias. (Nightlife, supra, 108 Cal.App.4th at p. 94.) As a
result, under Morongo, the risk of Brown providing the City Council with biased advice
and thereby tainting its decisionmaking process was too high to be acceptable under
constitutional principles. By so holding, we do not suggest that Brown intentionally
skewed his advice to promote the position Bray advocated at the arbitration. Rather, we
acknowledge that bias can be unwitting. We also acknowledge that whenever a person
serves two masters who have potentially conflicting interests, it is impossible to peer into
the depths of that person’s soul to determine the purity of his or her words and actions.
Thus, Brown’s role in presenting to the City Council on the Sabey matter had the
unavoidable consequence of destroying the appearance of a fair proceeding.
       The City contends that the Howitt rule should apply because, in the context of this
case, there is no difference between government lawyers and partners from a private law
firm acting as government lawyers. We disagree. Two government lawyers do not owe
each other fiduciary duties. If they are properly screened from each other, there is no
reason to suspect that the advisor to the decision maker will try to promote the result
desired by the advocate. Because they are fiduciaries, the same cannot be said of partners
in a private law firm. Also, partners in a law firm have incentive to build the reputation
of their firm so that it will be profitable in the future by obtaining new and repeat
business. It is therefore logical to presume that a partner would want to make another
partner look good by seeking—consciously or unconsciously—to validate the job done
by that partner. Government lawyers do not have the same considerations. Thus, there is
good reason not to apply Howitt.



Sabey’s termination. We accept the parties’ assumption as an accurate reflection of what
transpired. (DeRose v. Carswell (1987) 196 Cal.App.3d 1011, 1019, fn. 3 [briefs and
arguments are “‘reliable indications of a party’s position on the facts as well as the law,
and a reviewing court may make use of statements therein as admissions against the
party’”].) Too, the City cannot hide behind the attorney-client privilege and disclaim that
Brown provided substantive advice on the merits during the City Council’s closed session
meeting.


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       According to the City, it is a fallacy to suggest that Brown would choose to
support the result sought by Bray rather than give appropriate legal advice. There are
several problems with this assertion. First, the City Council was vested with discretion in
deciding whether to adopt or reject, in whole or in part, the arbitrator’s Advisory Opinion
and Award. Due to the City Council’s discretionary power, Brown could have couched
his advice in many different ways, and he could have brought various considerations to
bear. Because this is not a situation in which there was one right answer and therefore
one right piece of advice, there is a likelihood that if Brown’s advice had been biased,
that bias would have been masked. In other words, the bias would not necessarily appear
on the face of the advice. This is all the more reason why the situation at bar does not
satisfy the dictates of due process. Second, the City is wrong insofar as it suggests that
we must examine Brown’s actual motives. Our holding is premised solely on the
appearance of unfairness and bias.
       Finally, the City suggests it would be bad law to limit Howitt to government
lawyers because (1) it would create confusion over the different rules applicable to
government attorneys and private attorneys; and (2) it would prohibit the growth of law
firms and terminate existing client relationships. We do not perceive a risk of confusion.
The rule we announce is simple. Agencies are barred from using a partner in a law firm
as an advocate in a contested matter and another partner from the same law firm as an
advisor to the decision maker in the same matter. It is true that agencies and law firms
will have to adjust to the rule we announce today, but that is the cost of due process. We
cannot accept the City’s suggestion that the due process rights of a participant in an
administrative proceeding must bend to the interests of a private law firm that is
appearing as advocate and advisor. That would be a perverse result, and one which is
antithetical to the federal Constitution.
III. The Remedy.
       In general, if a party has not received a proper administrative hearing, the matter is
remanded back to the agency to provide “a full and fair hearing.” (English v. City of
Long Beach (1950) 35 Cal.2d 155, 160; National Auto & Cas. Ins. Co. v. Downey (1950)

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98 Cal.App.2d 586, 594 [“Where an administrative agency has not conducted a hearing
properly, or has committed error of law, or if the evidence is insufficient to support the
findings, and it is still possible under the circumstances for the agency to exercise its
discretion, the court should remand the matter to the agency for further consideration”].)
But if the decision maker “has become personally ‘embroiled’ in the controversy to be
decided,” then the decision maker must be disqualified from further participation in the
matter. (Mennig v. City Council (1978) 86 Cal.App.3d 341, 351.) In that situation, it is
appropriate to allow the recommendation of an inferior decision maker to stand as the
final decision. (Id. at pp. 351–352 [because the city council was personally embroiled in
the termination of the Chief of Police, the recommendation of the civil service
commission converting the termination into a 60-day suspension was affirmed as the final
decision].)
       The question here is whether the City Council can exercise its discretion without
being influenced by Brown’s advice. Sabey argues that it cannot, and that the Advisory
Opinion and Award must be confirmed as the final administrative decision. But there is
no evidence that the City Council is personally embroiled in the termination of Sabey’s
employment, or that it is otherwise incapable of proceeding in a fair manner. We
conclude that the matter should be remanded back to the City Council for further
consideration with the proviso that it must obtain independent legal advice to eliminate
the taint of Brown’s involvement. If the City Council does not obtain independent legal
advice and review the arbitration in light of that new advice, then the Advisory Opinion
and Award shall become final.
       Sabey suggests that the Advisory Opinion and Award should automatically
become the final decision because the City Council failed to conduct a proper review of it
within the 45 days allotted by the memorandum of understanding. We disagree. The
City Council completed its review and rendered a decision in a timely manner. Sabey is
the one who wishes to undo what was already done. He cannot be heard to complain that
that time has expired on the City Council’s right to make a decision. Notably, he cited no
law in support of this contention. We deem the argument waived because “[i]t is not our

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responsibility to develop an appellant’s argument.” (Alvarez v. Jacmar Pacific Pizza
Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.)
       In the alternative, Sabey argues that the City Council should be disqualified from
hearing the matter and that it should be remanded to a different adjudicatory body. But
he failed to identify a different adjudicatory body that has the power to act in the City
Council’s stead. This argument is waived, too.
       All other issues raised by the parties are moot.
                                      DISPOSITION
       The judgment is reversed and remanded with directions to 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 shall
recover his costs on appeal.
       CERTIFIED FOR PUBLICATION.




                                                  ___________________________, J.
                                                     ASHMANN-GERST


We concur:



____________________________, P. J.               ____________________________, J.*
           BOREN                                             FERNS

*
      Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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