By Katherine J. Hart and Leslie Z. Walker

On February 9, 2009, the California Supreme Court held the State Water Resources Control Board (“Board”) did not violate the due process rights of the recipients of a proposed license revocation by refusing to disqualify the enforcement team because one or more members had advised the Board on other, unrelated issues. (Morongo Band of Mission Indians v. State Water Resources Control Board 2009 Cal. LEXIS 1009.)

The Board issued a notice of proposed license revocation to the Morongo Band of Indians (“Morongo Band”). The Morongo Band requested a hearing and the Board assigned staff to two separate teams for the matter: an enforcement team that would prosecute the case, and a hearing team that would advise the Board members. The enforcement team was screened from inappropriate contact with the Board members and other agency staff through the Administrative Procedures Act’s rules governing ex parte communications. (Gov. Code, § 11430.10 et seq.)

One of the attorneys on the enforcement team was simultaneously advising the Board on another totally unrelated matter. According to the Morongo Band, this dual prosecutorial and advisory role of the staff attorney created an “inappropriate and impermissible appearance of unfairness and bias sufficient to compel [the enforcement team’s] removal.”

The Appellate Court held in favor of the Morongo Band, finding that the Board would consciously or unconsciously be tempted to give greater weight to the argument of an attorney from whom they had received advice.

The Supreme Court reversed, holding:

In the absence of financial or other personal interest, and when rules mandating an agency’s internal separation of functions and prohibiting ex parte communications are observed, 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.

Here, the Morongo Band had presented no such evidence. Thus, so long as the rules separating functions and prohibiting ex parte communication are observed by staff attorneys, there is presumption of impartiality. The appropriate standard for considering "relationship-bias" claims is a high risk of actual bias, not "appearance of bias." The presumption of impartiality applies to all types of alleged decision maker bias claims other than those involving claims of personal or financial interest. As long as a state or local agency properly separates the attorneys who are acting as advocates or prosecutors in an adjudicatory proceeding, the Court confirmed that it is permissible for those same attorneys to simultaneously advise the decision makers in unrelated cases. The case is an important victory for agencies toiling to extend the capacities of limited budgets and staff. The Court however does suggest that having the agency’s "sole or primary" attorney act as a prosecutor would create a high risk of actual bias.

Kate Hart is a senior associate at Abbott & Kindermann, LLP and Leslie Walker is an associate with the firm. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.