Does Appearance Trump Substance? Watsonville City Personnel Commission's Discipline Appeal Process

R1

The Watsonville Personnel Commission should maintain a fair process free from suspicion of bias and to this end should limit the dinner attendees prior to the appeal hearings to commissioners, their legal counsel, and the recording secretary only. Response: Watsonville City Council – HAS BEEN IMPLEMENTED Dinners prior to future personnel hearings heard by the Personnel Commission will be limited to commissioners, the legal counsel to the commission and staff to the commission. Response: Watsonville City Manager – HAS BEEN IMPLEMENTED Dinners prior to future personnel hearings heard by the Personnel Commission will be limited to commissioners, the legal counsel to the commission and staff to the commission.

R1

The Watsonville Personnel Commission should maintain a fair process free from suspicion of bias and to this end should limit the dinner attendees prior to the appeal hearings to commissioners, their legal counsel, and the recording secretary only. Response: Watsonville City Council – HAS BEEN IMPLEMENTED Dinners prior to future personnel hearings heard by the Personnel Commission will be limited to commissioners, the legal counsel to the commission and staff to the commission. Response: Watsonville City Manager – HAS BEEN IMPLEMENTED Dinners prior to future personnel hearings heard by the Personnel Commission will be limited to commissioners, the legal counsel to the commission and staff to the commission.

R2

To eliminate speculation about the role of the city attorney, the Watsonville City Charter should expand the description of the powers and duties of the attorney to include the representation of city commissions and committees. Response: Watsonville City Council – WILL NOT BE IMPLEMENTED The Watsonville City Charter already authorizes the City Attorney to advise the Commission.

R3

To provide the greatest separation between the Personnel Commission and city management, the city should consider hiring independent counsel for the Commission. Response: Watsonville City Council – WILL NOT BE IMPLEMENTED In a series of California published cases over the last few years, California courts have been very clear that it is perfectly proper for the City Attorney to represent the Commission. In Morongo Band of Mission Indians v. State Water Resources Control Board, 45 Cal.4th 731 (February 9, 2009), the California Supreme Court addressed this very issue. In construing the constitutional due process right to an impartial tribunal, we take a more practical and less pessimistic view of human nature in general and of state administrative agency adjudicators in particular. 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. Unless such evidence is produced, we remain confident that state administrative agency adjudicators will evaluate factual and legal arguments on their merits, applying the law to the evidence in the record to reach fair and reasonable decisions. As we explain, any tendency for the agency adjudicator to favor an agency attorney acting as prosecutor because of that attorney's concurrent advisory role in an unrelated matter is too slight and speculative to achieve constitutional significance. HOLDING: It did not violate license holder's right to due process for the prosecuting agency attorney to simultaneously serve as an advisor to the Board on an unrelated matter. The decision reversed the Court of Appeal's judgment. The Supreme Court's decision effectively overruled the decision in Quintero v. City of Santa Ana, 114 Cal. App. 4th 819 (Cal. Ct. App. 2003). The Quintero court held that the internal separation of functions on a case-by-case basis was insufficient to satisfy the constitutional requirements for due process of law, and that an administrative agency's internal separation of functions must be complete not only as to each individual case, but as to all cases, related or unrelated, that are pending before the agency at any given point in time. In the case of Watsonville’s disciplined firefighter, the City hired a separate attorney from an outside law firm to advise the department and the City Attorney had no communications of any kind with the department or anyone else involved in the case except the Commission. The City could have hired an attorney from the same law firm if it followed particular protocols. Instead the City staff selected an attorney from a different law firm to avoid even an appearance of impropriety. It is also important to note that no one involved in the hearing process, including the employee ever claimed the City Attorney had a conflict of interest or any improper communications. The City follows best practices and the City’s practices well exceed the due process protections afforded under California law. Response: Watsonville City Manager – WILL NOT BE IMPLEMENTED In a series of California published cases over the last few years, California courts have been very clear that it is perfectly proper for the City Attorney to represent the Commission. In Morongo Band of Mission Indians v. State Water Resources Control Board, 45 Cal.4th 731 (February 9, 2009), the California Supreme Court addressed this very issue. In construing the constitutional due process right to an impartial tribunal, we take a more practical and less pessimistic view of human nature in general and of state administrative agency adjudicators in particular. 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. Unless such evidence is produced, we remain confident that state administrative agency adjudicators will evaluate factual and legal arguments on their merits, applying the law to the evidence in the record to reach fair and reasonable decisions. As we explain, any tendency for the agency adjudicator to favor an agency attorney acting as prosecutor because of that attorney's concurrent advisory role in an unrelated matter is too slight and speculative to achieve constitutional significance. HOLDING: It did not violate license holder's right to due process for the prosecuting agency attorney to simultaneously serve as an Does Appearance Trump Substance? ∫ 7 advisor to the Board on an unrelated matter. The decision reversed the Court of Appeal's judgment. The Supreme Court's decision effectively overruled the decision in Quintero v. City of Santa Ana, 114 Cal. App. 4th 819 (Cal. Ct. App. 2003). The Quintero court held that the internal separation of functions on a case-by-case basis was insufficient to satisfy the constitutional requirements for due process of law, and that an administrative agency's internal separation of functions must be complete not only as to each individual case, but as to all cases, related or unrelated, that are pending before the agency at any given point in time. In the case of Watsonville’s disciplined firefighter, the City hired a separate attorney from an outside law firm to advise the department and the City Attorney had no communications of any kind with the department or anyone else involved in the case except the Commission. The City could have hired an attorney from the same law firm if it followed particular protocols. Instead the City staff selected an attorney from a different law firm to avoid even an appearance of impropriety. It is also important to note that no one involved in the hearing process, including the employee ever claimed the City Attorney had a conflict of interest or any improper communications. The City follows best practices and the City’s practices well exceed the due process protections afforded under California law.