Filed 4/16/13 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

GLENN SABEY,
Plaintiff and Appellant,

v.
CITY OF POMONA,
Defendant and Respondent. B239916
(Los Angeles County Super. Ct. No. BS129042)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. James C. Chalfant, Judge. Revers ed and remanded with directions.

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

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

_____________ ____________2 We hold that when a partner in a law firm represents a department within a city at an advisory arbitration regarding a personne l matter, and when the city’s decisionmaking body later reviews that arbitrat or’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 ow e each other fiduciary duties the advisor partner is in the position of reviewing the effic acy 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 tria l court’s decision de nying the writ petition of appellant Glenn Sabey (Sabey)—a police o fficer who is fighting his termination from employment—in which he asserts a due proce ss challenge to the decision of the City Council (City Council) of th e 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 relationshi p ended in 2000 or 2001. Th ey 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 poli ce 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 acte d as though he belonged at3 the complex. At one point, Sabey said he had an appointm ent with Atarian to cut his hair. Soon after, he left. Subsequently, a Corona police officer s poke 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 Info rmation 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 (Departmen t) internal affairs office investigated Sabey and found that he violated various pr ovisions of the Department’s policies and procedures by trespassing in vi olation of Penal Code sec tion 602; by committing a lewd act in public in violation of Penal Code section 647, s ubdivision (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 th at may result in criminal prosecution; by failing to report activities that have resu lted in official contact by another law enforcement agency; and by vi olating 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 term inate 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 Ch ief of the Department, David Keetle, recommended that the city manager terminate Sabey’s employment. The city manager followed Chief K eetle’s recommendation.4 Advisory arbitration
Pursuant to the memorandum of understa nding 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 Br own (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 rece ived the arbitrator’s Advisory Opinion and Award, it asked Brown to be the City Coun cil’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 pr evented 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 coun sel, Sabey objected to attorneys from the same firm acting as an advocate for the Depa rtment and as a legal advisor to the City Council. On August 2, 2 010, the City Council rendered a decision that adopted the arbitrator’s factual findings but rejected th e recommendation that Sabey’s termination be converted into a suspen sion without pay or benefits. As a result, Sabey’s termination from employment was made final. The writ petition; the motion Sabey filed a petition pursuan t to Code of Civil Proce dure sections 1094.5 and 1085. According to Sabey, he was denied du e process of law and a fair hearing because, inter alia, “[he] was terminated by a decisi on making body that rece ived legal advice regarding this matter prior to deciding whethe r to review the [arbitr ator’s decision] from the law partner of the attorney who repres ented the Department prior to and at the [arbitration].”5 In his follow up motion, Sabey additionall y 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 co nducts adjudicative proceedings, the constitutional guarantee of due process of law requires a fair tribunal.” ( Morongo , supra , 45 Cal.4th at p. 737.) A tribun al is not fair unless “the ju dge 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 administrativ e proceeding is presumed impartial. ( Ibid .) To show a “violation of [the] due process gu arantee,” a party must prove either actual
bias or that the situation is one “‘in whic h experience teaches th at the probability of actual bias on the part of the judge or deci sionmaker is too high to be constitutionally tolerable.’ [Citation.]” ( Ibid .) We independently review whether the fact s support the trial c ourt’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 Ci ty Council Violated Sabey’s Right to Due
Process. Case law establishes that an attorney cann ot act as both an advocate for an agency
and then as an advisor to the decision make r who reviews the resu lt that the advocate achieved. ( Midstate Theatres, Inc. v. County of Stanislaus (1976) 55 Cal.App.3d 864 [the same lawyer cannot represent th e county assessor and advise the board of equalization in the same proceeding].) In Nightlife , for example, the court he ld that the due process rights of a permit applicant were violated wh en 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 his6 or her own decision or adju dging a person whom he or sh e 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 c ity’s personnel board was unfair because the deputy city attorney re presenting 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 sugg est the probability of his influence on the Board.” ( Quintero, supra, at p. 814.) In contrast, “[p]erformance of both roles by the same law offi ce is appropriate
. . . if there are assurances that the adviser for the decisi on 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 onl y 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 ad visory 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 resu lt achieved by his fiduciary. 1 In our view, this creates an

1 Below, the parties and the trial court a ssumed that Brown gave the City Council substantive advice. In his declaration, Brow n stated that the “[C ity 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 ha ve no admissible evidence regarding the contents of the advice that Brown provided. On appeal, the partie s proceed as though Brown gave substantive advice that impacted the City Council’s decision on the merits of7 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 proce ss 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 conflic ting interests, it is impossible to peer into the depths of that person’s soul to determin e 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 th e 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 governme nt lawyers and partners from a private law firm acting as government lawyers. We di sagree. Two governme nt lawyers do not owe each other fiduciary duties. If they are pr operly screened from each other, there is no reason to suspect that the a dvisor to the decision maker w ill try to promote the result desired by the advocate. Because they are fiduc iaries, the same cannot be said of partners in a private law firm. Also, partners in a la w 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 presum e 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

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Sabey’s termination. We accept the parties’ assumption as an accura te reflection of what transpired. ( DeRose v. Carswell (1987) 196 Cal.App.3d 1011 , 1019, fn. 3 [briefs and arguments are “‘reliable indications of a pa rty’s position on the facts as well as the law, and a reviewing court may make use of stat ements therein as admissions against the party’”].) Too, the City cannot hide behind th e attorney-client privile ge and disclaim that Brown provided substantive advice on the mer its during the City Council’s closed session meeting.8 According to the C ity, it is a fallacy to sugges t that Brown would choose to support the result sought by Br ay rather than give appropri ate 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 wa ys, and he could have brough t various considerations to
bear. Because this is not a situation in wh ich there was one right answer and therefore one right piece of advice, ther e is a likelihood that if Br own’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 mo re reason why the situation at bar does not satisfy the dictates of due pro cess. Second, the City is wrong insofar as it suggests that
we must examine Brown’s actual motives. Our holding is premis ed 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 confusio n over the different rules applicable to government attorneys and privat e attorneys; and (2) it would prohibit the growth of law firms and terminate existing client relationships. We do not perc eive a risk of confusion.
The rule we announce is simple. Agencies are barred fro m using a partner in a law firm
as an advocate in a contested matter and anot her partner from the same law firm as an
advisor to the decision maker in the same matte r. It is true that agencies and law firms will have to adjust to the rule we announce toda y, but that is the cost of due process. We cannot accept the City’s suggestio n that the due process right s 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 wo uld be a perverse resu lt, 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 provi de “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)9 98 Cal.App.2d 586, 594 [“Where an administ rative agency has not conducted a hearing properly, or has committed error of law, or if the evidence is insu fficient to support the findings, and it is still possible under the ci rcumstances for the agen cy to exercise its discretion, the court should remand the matter to the agency for further consideration”].) But if the decision maker “has become persona lly ‘embroiled’ in the controversy to be decided,” then the decision maker must be di squalified 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 reco mmendation of an inferior deci sion 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 Co uncil 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 C ity Council is personally embroile d in the termination of Sabey’s employment, or that it is otherwise incapa ble of proceeding in a fair manner. We
conclude that the matter s hould be remanded back to th e City Council for further consideration with the provis o 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 arbitrati on in light of that new advice , then the Advi sory Opinion
and Award shall become final. Sabey suggests that the Advisory Op inion and Award should automatically
become the final decision becaus e the City Council failed to co nduct 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 don e. He cannot be heard to complain that that time has expired on the City Council’s right to make a de cision. Notably, he cited no law in support of this contention. We deem the argument waived be cause “[i]t is not our10 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 th e City Council should be disqualified from hearing the matter and that it should be remand ed 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 considera tion in light of independent legal advice. For this purpose, the clock is rese t under the memorandum of understanding. Thus, the City Council shall have the time allowed under the memorandum of understanding for issuing a decision. If th e City Council declin es 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.