HomeMy WebLinkAbout06-07-2016 - B2 - Orientation - Due Process Made Simple Practical Guide for Fair Administrative HrgsDue Process Made Simple:
Practical Guidelines for
Fair Administrative Hearings
Manuela Albuquerque, Director of Complex Litigation, Burke, Williams and Sorensen
JoAnne Speers, Executive Director, Institute for Local Government
Special rules apply to how elected and appointed officials conduct themselves when they are
acting in a “quasi-judicial” capacity (applying rules to a specific situation). This session will
explore those rules and the value of fairness that underpins them. Being
Attendees at this session will learn practical techniques for:
1. Having the appearance and reality of having an open mind going into and at these
hearings, including
a. What not to say before or during a hearing;
b. How to frame questions during hearings; and
c. The importance of being attentive/listening to the information presented.
2. Determining under what circumstances common law fair process principles require you
to step aside from the decision-making process
3. Making sure participants have an adequate opportunity to respond to issues and
information raised at the hearing, including disclosing information decision-makers
acquire before the hearing that may influence the decision (or may appear to influence the
decision).
These techniques are important indicators of fairness to both hearing participants as well as
reviewing courts.
The session will also explain the different roles that staff play in hearings and how that affects
fairness issues.
There are two handouts for this session:
1. Demystifying Due Process for Decision-makers: The Top Ten List
2. Fair Process Requirements in Adjudicative Decision-making
Demystifying Due Process
for Decision Makers:
The Top Ten List
By Manuela Albuquerque
Burke, Williams & Sorensen, LLP
1901 Harrison Street, Suite 900
Oakland, California 94612
510.273.8780
www.bwslaw.com
League of California Cities
Annual Conference and Expo
September 5-7, 2012
Demystifying Due Process for Decision Makers —The Top Ten List page 1
OAK #4834-1527-6048 v1
Demystifying Due Process for Decision Makers —The Top Ten List
This list of practical tips for elected and appointed decision makers seeks to demystify fair
hearing requirements and prevent legal pitfalls in conducting administrative hearings.
1.When Fair Process Is Required: “Adjudicative” Or “Quasi-Judicial” Hearings
California courts have held that when the applicable law (for example a city ordinance)
requires that an administrative hearing must be held to take testimony and apply a standard or
rule to an individual set of facts, the hearing must be fair and have “impartial” decision makers.
This is the case irrespective of whether or not the hearing entails the taking away or
modification of a vested right, such as an exiting permit or other entitlement. These hearings
are often referred to as “adjudicative” or “quasi-judicial” because the decision makers act like
judges applying rules to facts and evidence, rather than as legislators making policy decisions.1
They generally concern an application for a city permit or other entitlement (including
employment) or the modification or revocation of one. Such hearings may, but need not,
involve an appeal from an initial administrative determination.
2.What Process Is Due: Notice, Reasonable Opportunity To Be Heard, Impartial Decision
Maker
Administrative hearings are not required to be conducted like trials with sworn testimony, cross
examination and conformity to the rules of evidence. The procedures will generally be
governed by a local ordinance. The essential components of fairness are reasonable advance
notice, reasonable opportunity to be heard and an ”impartial” decision maker.2
3.Judicial Review: Unfairness
The final administrative decision is subject to judicial review in an administrative mandate writ
proceeding based on an administrative record of the proceedings before the City and the City’s
written findings.3 A judge can invalidate the City’s decision based on the unfairness of the
proceedings.4 Sometimes attorneys’ fees can be awarded based on an unfair proceeding.5
4.Adequacy Of Notice-Special Considerations
Notice of a hearing usually should conform to the requirements of the local ordinance or other
law setting up the hearing, should provide reasonable advance notice as to when the hearing
will be held, what will be at issue and how any staff reports and other material before the
hearing body may be accessed.6 This is a matter that City staff will normally handle. Decision
makers should be alert to problems that may arise during the course of a hearing. These might
be addressed by continuing the hearing, for example, is there some compelling circumstance
that makes it impossible for a key witness to be present or is the applicant or appellants not
present at the hearing suggesting that they may not be aware that the hearing was to
proceed? If a hearing is to be continued from one date to another it is a good idea to make it
clear on the record that no further notice will be given of the continued date, especially in land
use hearings with complex noticing requirements.7
5.Reasonable Opportunity To Be Heard: Responding To New Issues
Sometimes a new issue or a new twist on an old issue gets raised during the hearing. Persons
whose interests are affected need to be given a fair chance to address them. A hearing can be
re-opened for a limited purpose and a reasonable time limit placed on the parties to address
the new issue. This will ensure that your hearing is perceived to be fair by a reviewing judge.
Demystifying Due Process for Decision Makers —The Top Ten List page 2
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6.Fair “Hearing”: Being/Seeming Attentive, Reviewing The Record Of Prior Proceedings
The fairness of the proceeding requires that decision makers appear to be and are paying close
attention to the information being presented at the hearing. Making or taking cell phone calls,
stepping out of the chambers in the middle of the hearing, using a computer for unrelated
matters (for example, reviewing or sending emails) can all be taken by a reviewing court as an
indication that the decision maker is not paying attention to the proceedings and therefore
that the hearing is unfair.8 It is helpful to state for the record that you are taking notes
concerning the proceedings if you are using your compute for this purpose. If you have been
absent for a prior part of the hearing it is important to state on the record that you have
reviewed the tapes of the prior proceedings you missed. Doing so will avoid any public
misperceptions and prevent legal challenges based on such misunderstandings.
7.Bias: Personal Embroilment, Seeking Advice, Disclosures On The Record
Impartiality in a hearing context goes beyond disqualifications required by the state financial
conflict of interest laws. “Personal embroilment” is a broad legal term the courts use when the
decision maker has some personal stake in the outcome which might impair impartiality.9 Are
you very close friends or an adversary of the applicant? Ask your city attorney ahead of the
hearing if the circumstances present a problem. If there is any question, ask the parties by
disclosing the involvement and whether anyone objects. If there is a reasonable basis for
objecting to a decision maker’s participation, it is often wise to err on the side of caution and
recuse yourself so as not to render the decision vulnerable to legal attack.
8.Avoiding Prejudgment: Framing Questions, Maintaining A Neutral Demeanor And Tone
Did you take a position on the project or matter so as to suggest that you cannot make a
decision on the evidence presented?10 Asking questions rather than stating opinions helps
show you are interested in making a decision on the merits and haven’t made a decision
without considering the information presented. Be mindful of whether your tone and
demeanor reflect your neutrality. Even after the hearing has been closed and it is time to make
a decision, make temperate statements explaining your conclusions by reference to the
evidence received.
9.Fair Hearing: Disclosing “Ex Parte” Out Of Hearing Facts- Avoiding Commitments
While members of the council and city boards and commission may be permitted to make out
of hearing “ex parte” contact with the parties to gather facts, especially in land use matters, the
information gathered must be disclosed on the record in sufficient detail so that all parties can
respond and all decision makers are provided access to the same information. You can explain
to anyone seeking your commitment to a position that you cannot make a decision until you
consider all the information presented at the hearing. Such prejudgment is inconsistent with
the duty of impartiality and the conduct of a fair hearing.11
10.Asking The Staff: Separating Adjudicatory And Prosecutorial Functions.
Sometimes, city staff will be playing a “prosecutorial” or advocacy role in the hearing. When
this occurs, a decision maker will not be able to seek information or advice from staff on the
prosecutorial” side. Your city attorney will guide you as to the lawyers and staff assigned to
play the “advisory” role who you may consult. 12
Providing fairness is actually quite simple once you know the rules of the road. Good luck!
Demystifying Due Process for Decision Makers —The Top Ten List page 3
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END NOTES
1 Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1170; accord Breakzone Billiards
v. City of Torrance, (2000) 81 Cal.App.4th 1205, 1223-24. These cases point out that although
federal due process only applies to the taking away of a property right or liberty interest, which
is not implicated by a hearing involving any application for an entitlement, the fair hearing
requirements imposed on administrative hearings are as a practical matter the equivalent of
procedural due process.
2 See e.g. Gai v. City of Selma 68 Cal.App.4th 213,219.
3 Code of Civil Procedure section 1094.5.
4 Code of Civil Procedure section 1094.5 (b).
5 Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 177.
6 See Bowman v. City of Berkeley 131 Cal.App.4th 173, 177.
7 The Bowman case cited above was an example of a case in which the decision was set aside
on the first round, because the opponents failed to attend a continued hearing at which the
hearing decision was made because the opponents thought it would be continued and were
not notified that the City would proceed.
8 Lacy Street Hospitality Service, Inc. v. City of Los Angeles, 125 Cal. App. 4th 526, 22 Cal. Rptr.
3d 805 (2 Dist. 2004), decertified from publication June 15, 2005.
9 Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1170.
10 Nasha LLC v. City of Los Angeles, (2004) 125 Cal. App. 4th at 483-84.
11 Check with your city attorney about the nature of the hearing and whether, in that context,
it may be improper to have any ex parte contacts.
12 Morongo Band of Mission Indians v. State Water Quality Resources Board (2009) 731 Cal.4th
731, 737.
Manuela Albuquerque is the Director of Complex Public litigation for Burke Williams &
Sorensen, LLP. In addition to her due process papers for the City Attorneys’ Department and
County Counsel, she authored a successful amicus brief for the League and CSAC before the
California Supreme Court in Morongo Band of Mission Indians v. California Water Control
Resources Control Board (2009) 45 Cal.4th 731, was the Berkeley City Attorney for twenty-two
years, is a past President of the City Attorney’s Department and represented City Attorneys on
the League Board of Directors.
ETHICS
1400 K Street, Suite 205 • Sacramento, CA 95814 • 916.658.8208 • F 916.444.7535 •
www.ca-ilg.org
When an Elected Official Feels Passionately
About An Issue:
Fair Process Requirements in Adjudicative
Decision-Making
Originally Published October 2006 (Updated 8/12)
QUESTION
I am extremely upset. When I ran for office, one of my campaign promises was to do
whatever I could to get adult entertainment establishments shut down in our area.
I have been an outspoken critic of the negative effects these businesses have on
neighborhoods and I’m involved in national groups that conduct research to help local
officials keep such establishments out of their communities.
When I receive information from such groups, I pass it along to my fellow elected
officials. I have also encouraged my colleagues to check out the kind of activity that
occurs around adult entertainment businesses by driving past existing establishments.
A permit for a new adult entertainment business is coming before us. Knowing of my
interest in this area, the local newspaper interviewed me about the upcoming meeting,
and I indicated I would never vote to issue the permit. Our agency counsel is now
advising me that I cannot participate. She also learned about my efforts to bring my
colleagues up to speed on these issues and has advised me to stop this immediately.
I can’t believe this. Is there really a problem here?
ANSWER
There certainly could be. Your agency counsel is concerned that, if you were to
participate in the hearing, the decision could be successfully challenged because of a
perception that you would not be a fair decision-maker. She may also be concerned about
decision-makers receiving what is called "ex parte" information outside the scope of the
public hearing and potential open meetings law violations. Let’s take a look at the law in
this area.
Fair Process Requirements
in Adjudicative Decision-Making August 2012
2
This white paper is a service of the Institute for Local Government (ILG), whose mission
is to promote good government at the local level. For more information and to access
ILG’s resources on public service ethics, visit www.ca-ilg.org/trust.
ILG thanks Manuela Albuquerque and Emily Y. Wada of Burke, Williams and Sorensen
for their assistance in reviewing and updating of this piece from the original version
prepared in 2006.
The Multiple Roles of Local Agency Decision-Makers Legislative
Acts
Local elected officials are frequently asked to perform multiple functions. Sometimes
they are asked to serve as legislative bodies when they enact policies that apply to
everyone in the community (or at least a significant segment).
An example of a legislative act would be adopting an ordinance that regulates all sexually
oriented businesses in a community. Certain baseline fair process requirements apply, of
course. However, the standards that decision-makers need to be concerned about tend to
emphasize the effects of the ordinance rather than the process by which it was adopted.
For example, with adult business ordinances, the courts will usually look at whether the
ordinance impermissibly treads on constitutional protections for free expression.
Of course, every governmental action is subject to certain minimum fair and open process
requirements. There are certain procedural requirements for how ordinances are adopted.1
Another source of procedural requirements is in the Brown Act and relates to open and
public decision-making.2
Your agency’s attorney may be concerned that by circulating materials to your colleagues
outside a meeting, you are trying to develop a collective concurrence on the adult
entertainment issue outside an open and publicized meeting. In advising you to
discontinue this practice, your agency counsel is trying to protect any decision your
agency makes from being subject to a Brown Act challenge.
Adjudicative Acts
Sometimes local officials are asked to play more of a judge-like role (also referred to as
an "adjudicative" or "quasi-judicial" role). This occurs when officials determine how
already-adopted policies apply in a given situation. Examples include applications for
permits like the one coming before your decision-making body. Presumably you will be
determining whether the permit application complies with your agency’s requirements.
When agency officials act in an adjudicative capacity, people such as the permit applicant
have certain rights to fair processes.3 These fair hearing requirements may not always rise
to the level of constitutional protections related to due process,4 but violating them can
nonetheless invalidate the decision under state law fair hearing requirements.
Fair Process Requirements
in Adjudicative Decision-Making August 2012
3
What is the policy rationale for this? One of the traditions of American democracy is to
balance notions of majority rule with individual rights. Fair process protections are not
intended to dictate the outcome of a decision-making process. They are, however,
intended to ensure that decision-makers fairly apply policies to individual situations and
base their decisions on a fair interpretation of the facts. Fairness is a key ethical value.
In the local agency context, the fair hearing requirements are not as strict as those used in
a court.5 They do, however, constrain decision-makers’ activities in significant ways.
Fair Process Concerns
When decision-makers are making adjudicative decisions, fairness requires that the
hearing occur before a reasonably impartial, noninvolved decision-maker.6 This is
because of the important role such hearings play in determining the specific rights and
responsibilities of individuals and businesses.7
What this means is that decision-makers cannot be biased8 and courts will examine an
agency’s procedures to ensure that the process has been fundamentally fair.
What kinds of issues can be a problem? Decision-makers cannot:
Have a personal interest in the decision’s outcome;
Be strongly biased against or in favor of one set of parties in the proceeding;
Have undisclosed or unalterable notions relating to the facts relevant to the
decision; or
Be potentially unfairly influenced by staff who may play both an advocacy and
advisory role before the agency.
There also can be issues related to the demeanor of decision-makers at the hearing.
When the issue is one of decision-maker bias, rest assured that someone wanting to
challenge a decision because of such bias must produce concrete facts showing bias or an
impermissible probability of bias.9 In fact, courts generally ask whether there is an
unacceptable probability that decision-makers who have power over their claims are
actually biased.10
As an official who wants to participate in the decision and have the decision upheld, you
need to avoid actions that would cause someone to question whether there’s an
unacceptable probability" that you cannot be fair. Your announcement of how you
intend to vote, before you heard the information presented at the public hearing, is a
problem in this regard.
Fair Process Requirements
in Adjudicative Decision-Making August 2012
4
Personal Interest in a Decision’s Outcome
Having a financial interest in a decision, of course, creates an impermissible financial
interest under the state’s political reform laws, which usually require that you not
participate in any way in a decision.11 However, decision-makers should also consult with
their agency counsel when they would be personally affected by a decision in other ways.
For example, an appellate court found that an elected official should not have participated
in a decision on a permit application when there was evidence that the reason for his
opposition to the project was that the project would block his apartment’s ocean view.12
The elected official was a month-to-month tenant, so he did not have a disqualifying
financial interest in property under the state’s financial conflict-of-interest laws. The
court nonetheless set aside the denial of the permit on the theory that there was evidence
that the elected official could not be fair in applying the agency’s standards to the
application because of the project’s effect on his residence.
Sometimes bias results from processes a local agency uses, not anything specific to an
individual decision-maker. This issue arose in a county’s effort to revoke a massage
parlor’s permit for impermissible activities. The operator challenged the fairness of the
hearing before paid administrative hearing officers.13 The court found that the county’s
practice of selecting and paying such hearing officers on an ad hoc basis created an
impermissible prospect of bias in the hearing officer. Because the officers’ income from
future adjudicative work depended entirely on the government’s goodwill, the court
found that there was an objective risk that the officers would be tempted to favor the
county’s position.
Party Bias
A strong animosity about a permit applicant based on conduct that occurred outside the
hearing can be the basis of a claim of impermissible bias. Conversely, a strong personal
loyalty toward a party could bias an official as well.14
A variation on this theme occurred in a case involving the dismissal of a police chief by
the city council. The chief’s position was civil-service protected, which meant that certain
procedural protections applied. The court concluded that certain members of the city
council could not serve as fair adjudicators of whether the chief’s dismissal was
warranted.
The court noted that the council members became "personally embroiled" in the
controversy when the civil service commission determined that most of the charges made
by city council members were unfounded. The court noted that this situation naturally
created a situation in which the council members would seek vindication of their
position.15 This created an actual probability of bias that disqualified the council as a
decision-maker on the issue of the chief’s tenure with the city.
Fair Process Requirements
in Adjudicative Decision-Making August 2012
5
So far, the courts have rejected claims that receiving campaign contributions create an
impermissible form of bias in favor of a party, but they have not ruled out the
possibility.16 This is a situation where it is wise to remember that the law creates a floor
for ethical conduct, not a ceiling. When a major campaign contributor or very close friend
comes before your decision-making body, a good question to ask yourself is whether a
reasonable person in the community would question your ability to be fair. This gets to
the issue of the public’s trust in your leadership and integrity, above and beyond the
minimum requirements of the law.
Factual Bias and Ex Parte Communications Issues
Often the role of an adjudicative decision- maker involves determining certain facts and
whether those facts meet standards set by law or local policy. Therefore, the process by
which decision-makers reach factual conclusions is an important part of the fairness of
any process.
A fair process issue can arise when decision-makers receive information outside the
public hearing. For example, such an issue arose when members of a civil service board
received evidence outside the administrative hearing and also had conversations with the
independent medical examiners and employee’s physician outside the hearing.
Attorneys often refer to such information as "ex parte" because it occurs outside the
hearing and typically from one side only ("from one side only" is a loose translation of
the Latin term ex parte). The court found that receiving information outside the hearing
was unfair, because the decision-makers based their decision upon information that not
all parties were aware of and therefore had no opportunity to challenge.17
Similarly, assertions related to facts should be made by those who are at the hearing, so
the underpinnings of such assertions can be explored (a variation on prohibiting
hearsay" evidence).18 When an official receives information outside the hearing, this
kind of information testing is less likely to occur. If a decision is based on this kind of
information, the decision is more vulnerable to legal challenge on fair hearing grounds.
This issue of factual bias is why providing information to your colleagues about adult
businesses and encouraging them to perform their own investigations by doing site visits
can create fair process issues. Many agency counsel will advise decision-makers to
disclose any information they have received that may be relevant to their decision on the
record at the hearing, so all parties have the opportunity to respond to that information.
Evidence that one has prejudged the facts of a situation can also be a problem, which may
be why your agency counsel is concerned about the statement you made to the
newspaper.
In another case, a court concluded that a planning commissioner had pre-judged an issue
when the applicant presented evidence that the commissioner ghostwrote an article that
Fair Process Requirements
in Adjudicative Decision-Making August 2012
6
was critical of a project in a neighborhood newsletter.19 According to the court, this
action indicated that the commissioner could not reasonably be an impartial, noninvolved
decision-maker. As a result, the court invalidated the planning commission’s decision
disapproving the project.
While it is inadvisable to make statements about how you will decide an adjudicative
matter once in office, there may be an exception for statements made during a
campaign.20 Thus the fact that you made campaign promises may not, in and of itself,
disqualify you from participating in the hearing.
This means you want to avoid any statements that would suggest that you cannot be a fair
decision-maker, however. Another way to frame your concerns to the newspaper or your
constituents is something along the lines of, "As you know, I am concerned about the
impacts of adult businesses in our community. However, as required by the law, I look at
every situation presented on a case-by-case basis, waiting to see all of the facts before I
cast my vote." And you should in fact do so.
The "Dual Role" Fair Process Issue
In some situations, the roles staff play in an adjudicatory proceeding can create fair
process issues. The general principle is that agency staff who are on the “prosecutorial”
side of an adjudicatory matter must be separated from decision makers and their advisers
on the decision making side, so courts will not perceive staff as improperly influencing
decision makers.
For example, in one case an adult entertainment business applied to the city for renewal
of its regulatory permit. The court concluded the business owner’s fair hearing rights
were violated because the same assistant city attorney who made the initial decision to
deny the renewal application subsequently acted as a legal adviser to the hearing officer
reviewing that denial on an administrative appeal of the initial ruling.21
Another case involved a personnel action. An employee appealed his termination before a
city personnel board; the board upheld the termination. An appellate court concluded that
the employee’s rights were violated because the deputy city attorney, who represented the
city before the personnel board, had also acted as counsel for the personnel board on
other occasions. Although there was no evidence the attorney acted in a dual role in this
case (in other words, the attorney did not act as both prosecutor for the city and legal
adviser for the personnel board on the particular termination matter), the attorney’s
ongoing relationship with the personnel board "[gave] the appearance of bias and
unfairness and suggest[ed] the probability of his influence on the [b]oard."22
The California Supreme Court has since made it clear that “appearance of bias” is not the
standard for judging the issue. Unless they have a financial interest in the outcome,
decision-makers are presumed to be impartial.23 However, this presumption of
Fair Process Requirements
in Adjudicative Decision-Making August 2012
7
impartiality can be overcome by specific evidence demonstrating actual bias or a
particular combination of circumstances creating an unacceptable risk of bias.24
An agency does not have to have separate divisions dedicated to prosecutorial and
advisory functions to avoid an unacceptable risk of bias; staff may play both advisory and
prosecutorial roles in unrelated matters over time. Prosecutorial and advisory staff on the
same matter, however, are well advised not to communicate with one another.
The League of California Cities’ City Attorneys Department offers a number of papers
that provide agency counsel analyses and advice on these issues. This in turn helps
agency counsel provide advice that helps agencies avoid missteps in this area. These
papers are available through the League.
Other Fair Process Concerns
Another fair process issue that arose in one jurisdiction is whether decision-makers were
truly paying attention at the hearing.25 As the appellate court noted, a fundamental
principle of due process is "he who decides must hear."26 It also implicates ethical values
relating to respect, even when one disagrees with a position being advocated.
The case involved an appeal of a zoning administrator’s decision to loosen certain
restrictions imposed on adult business operators. The adult business videotaped the
hearing, which showed decision-makers talking with each other, talking on cell phones
and otherwise not paying attention to either side that was speaking. The court concluded
that the inattentiveness of decision-makers during the hearing prevented them from
satisfying fair process principles and overturned the decision.27
Although this decision cannot be used as precedent in other cases, the appellate court’s
negative reaction suggests that inattentiveness is both a poor decision-making and legal
strategy. Certainly a permit applicant who feels disrespectfully treated is more likely to
challenge a decision.
The Difference Between Legislative and
Adjudicative Decision-Making
When an elected official acts in a legislative capacity, his or her decision-making is
less constrained. For example, when one acts in a legislative capacity, one can review
information submitted by interested parties and conduct one’s own investigation;28
investigating and determining facts as a basis for legislation is acceptable.29 Also,
courts generally won’t inquire into what evidence was or was not examined or relied
on by an elected official in reaching his or her decision.30
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in Adjudicative Decision-Making August 2012
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Conclusion
What is a person who is passionate about an issue to do? Making sure that your agency’s
policies (adopted legislatively) reflect your and your colleagues’ views on what best
serves the community’s interests is an important first step -- even before one is placed in
the adjudicative role of determining how these policies apply in a given situation. If these
standards are up to date, it should be possible for you to fairly apply them to the facts
before you and reach a result that you feel good about.
Of course, such policies are subject to the constraints of constitutional protections and
other state and federal law requirements. These constraints can keep your policies from
going as far as you would like. The reality is that any decision that violates someone’s
legally protected rights won’t get you very far.
As a decision-maker, however, you need to decide what is more important to you: being
able to sound off on issues you care about or being able to participate in adjudicative
decisions that involve those issues. If you want to participate in making these decisions,
Shakespeare may have it right: Discretion can indeed be the better part of valor.
Reserving judgment until the hearing, fairly evaluating the information presented at the
hearing and then making an honest determination whether certain standards have or have
not been met is truly the best approach -- both legally and ethically.
About This Resource
This document is a service of the Institute for Local Government (ILG) whose mission is to promote
good government at the local level with practical, impartial, and easy-to-use resources for California
communities.
ILG is the nonprofit 501(c)(3) research and education affiliate of the League of California Cities and
the California State Association of Counties.
As part of its mission of promoting good government at the local level, the Institute tries to help local
officials understand the rules relating to promoting public trust and confidence in local agency-
decision-making. For more information and to access the Institute’s resources on these kinds of issues,
go to http://www.ca-ilg.org/trust.
These informational materials, however, are not legal advice. Attorneys can and do disagree on how to
interpret the rules in this area. In addition, the rules can and do change over time.
Officials are encouraged to consult with an attorney or relevant regulatory authorities for up-to-date
information and advice on specific situations.
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in Adjudicative Decision-Making August 2012
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References and Resources
1 See Cal. Gov’t Code §§ 25121 (county ordinance adoption procedures), 36932 and following (city
ordinance adoption procedures).
2 See Cal. Gov’t Code § 54950 and following. See also "The ABCs of Open Government Laws" published
by the Institute for Local Government and available at www.ca-ilg.org/abc.
3 Cal. Gov’t Code § 1094.5. See also Nasha L.L.C. v. City of Los Angeles, 125 Cal. App. 4th 470, 482, 22
Cal. Rptr. 3d 772, 780 (2d Dist. 2004).
4 Breakzone Billiards v. City of Torrance, 81 Cal. App. 4th 1205, 1223-24, 97 Cal. Rptr. 2d 467, 483
2000) ("While Code of Civil Procedure section 1094.5 mandates that an applicant for a CUP receive a fair
hearing (Applebaum v. Board of Directors (1980) 104 Cal. App. 3d 648, 657-658, 163 Cal. Rptr. 831), it
does not automatically follow that the federal due process clause is always implicated.")
5 See Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S. Ct. 893, 902-03 (1976) (observing that due process
is flexible and calls for such procedural protections as a particular situation demands). See also Binkley v.
City of Long Beach, 16 Cal. App. 4th 1795, 1807, 20 Cal. Rptr. 2d 903, 909-10 (1993).
6 Gai v. City of Selma, 68 Cal. App. 4th 213, 219 -20, 79 Cal. Rptr. 2d 910, 913 (1998), cited in Nasha, 125
Cal. App. 4th at 483, 22 Cal. Rptr. 3d at 780.
7 Nightlife Partners, Ltd. v. City of Beverly Hills , 108 Cal. App. 4th 81, 90, 133 Cal. Rptr. 2d 234, 242
2003).
8 Breakzone Billiards v. City of Torrance, 81 Cal. App. 4th 1205, 1234 n. 23, 97 Cal. Rptr. 2d 467, 490 n.
23 (2000).
9 Breakzone, 81 Cal. App. 4th at 1237, 97 Cal.Rptr.2d 467 (noting that bias and prejudice are never implied
and must be established by clear averments)
10 Breakzone, 81 Cal. App. 4th at 1236, 97 Cal. Rptr. 2d at 492.
11 See Cal. Gov’t Code § 87100 and following.
12 See Clark v. City of Hermosa Beach, 48 Cal. App. 4th 1152, 1172-73, 56 Cal. Rptr. 2d 223 (2d Dist.
1996) (finding common law bias).
13 Haas v. County of San Bernardino, 27 Cal. 4th 1017, 119 Cal. Rptr. 2d 341 (2002).
14 See Breakzone, 81 Cal. App. 4th at 1234 n.23, 97 Cal. Rptr. 2d at 490 n. 23.
15 Mennig v. City Council, 86 Cal. App. 3d 341, 351, 150 Cal. Rptr. 207, 213 (1978).
16 See Woodland Hills Residents Assn., Inc. v. City Council, 26 Cal. 3d 938, 944-946, 164 Cal. Rptr. 255,
255 (1980) ( rejecting a contention that the fair hearing mandate of Code of Civil Procedure section 1094.5
means that city council members who receive campaign contributions from parties having a financial
interest in a matter before a city council are disqualified in perpetuity from considering and voting on a
matter affecting a campaign contributor). See also Breakzone, 81 Cal. App. 4th at 1226-29, 97 Cal. Rptr. 2d
at 484-87 (finding that campaign contributions received from landlord of party seeking permit modification
more than 12 months prior to hearing did not deprive applicant of fair hearing).
17 English v. City of Long Beach, 35 Cal. 2d 155, 157, 217 P. 2d 22, 24 (1950) (adjudicative body’s acting
on information of which parties were not apprised and which they had no opportunity to controvert
amounts to a denial of a hearing).
18 Desert Turf Club v. Board of Sup’rs of Riverside County, 141 Cal. App. 2d 446, 455 296 P. 2d 882, 887-
8 (1956).
19 Nasha, 125 Cal. App. 4th at 483-84, 22 Cal. Rptr. 3d at 780-81.
20 City of Fairfield v. Superior Court, 14 Cal.3d 768, 537 P.2d 375, 382-83, 122 Cal. Rptr. 543, 549-551
1975) (noting that it would be contrary to democratic principles to disqualify those who made pre-election
statements).
21 Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal.App.4th 81, 97-98, 133 Cal. Rptr. 2d 234, 248
2003).
22 Quintero v City of Santa Ana, 114 Cal. App. 4th 810, 814, 7 Cal. Rptr. 3d 896, 899 (2003).
23 Morongo Band of Mission Indians v. State Water Quality Resources Board, 45 Cal. 4th 731,737, 88 Cal.
Rptr. 3d 610, 614-15 (2009).
24 Morongo, 731 Cal. 4th at737, 88 Cal. Rptr. at 615.
Fair Process Requirements
in Adjudicative Decision-Making August 2012
10
25 Lacy Street Hospitality Service, Inc. v. City of Los Angeles, 125 Cal. App. 4th 526, 22 Cal. Rptr. 3d 805
2 Dist. 2004), decertified from publication June 15, 2005.
26 Vollstedt v. City of Stockton, 220 Cal. App. 3d 265, 276, 269 Cal. Rptr. 404 (1990).
27 Lacy, citing Haas v. County of San Bernardino, 27 Cal. 4th 1017, 1024, 119 Cal. Rptr. 2d 341 (2002)
due process requires fair adjudicators in administrative tribunals"); Henderling v. Carleson, 36 Cal. App.
3d 561, 566, 111 Cal. Rptr. 612 (1974) (takes as a given that administrative decision-maker listens at
hearing), disapproved on another point by Frink v. Prod, 31 Cal. 3d 166, 180, 181 Cal. Rptr. 893 (1982);
Chalfin v. Chalfin, 121 Cal. App. 2d 229, 233, 263 P.2d 16 (1953) (fact finder must listen to the evidence
before making a decision).
28 See, e .g., Siller v. Board of Supervisors, 58 Cal. 2d 479, 484, 25 Cal. Rptr. 73, 76 (1962) (supervisor
may view project site and rely on personal knowledge in voting on project application).
29 City Council of the City of Santa Barbara v. Superior Court, 179 Cal. App.2d 389, 393 ,3 Cal. Rptr. 796,
798-99 (2d Dist. 1960).
30 Southern Cal. Underground Contractors, Inc. v. City of San Diego, 108 Cal. App. 4th 533, 548, 133 Cal.
Rptr. 2d 527, 538-39 (4th Dist. 2003).
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