In an important new case certified for publication on May 8, 2020, Petrovich Development Company, LLC v. City of Sacramento, __ Cal.App.5th __ (2020) (Case No. C087283), the Third District Court of Appeal addressed the constitutional due process restraints imposed on city council members, who are normally policymakers and voices of their constituents except when they act in a quasi-judicial capacity as adjudicators of matters on appeal from an administrative body.
Settled California law requires council members handling such adjudicative matters to be “neutral and unbiased.” The law does not require proof of “actual bias.” The standard of proof is lower: there must not be “an unacceptable probability of actual bias” on the part of a municipal decisionmaker. Bias and prejudice are never implied and must be established by “clear averments.” A party must show either actual bias or a situation in which experience teaches that the probability of actual bias on the part of the decisionmaker is “too high to be constitutionally tolerable.” In short, this means such persons cannot (1) have a personal conflict of interest, (2) have prejudged the facts, or (3) have prejudice against any of the parties.
The Petrovich case dealt with this body of law in connection with a neighborhood association’s appeal of the Sacramento Planning Commission’s approval of a conditional use permit to allow construction of a gas station in conjunction with a Safeway supermarket in a planned unit development. For various reasons, a nearby neighborhood association opposed the application.
The Planning Commission approved the CUP but the neighborhood association appealed the decision to the City Council. While the appeal was pending the developer sought a councilmember’s disqualification for impermissible bias. Among other things, the councilmember sought to secure the votes of other councilmembers, prepared “talking points” advocating against the project, coached the person appealing the project how to bring the appeal, and made the motion to overturn the Commission’s decision.
The developer sued the City, asserting that the councilmember was biased and entered deliberations on the project with his mind already made up. The trial court and Court of Appeal agreed, ordering the City to rescind the decision on the appeal and hold a new hearing at which the councilmember would be recused from participating.
The Court held that the councilmember’s actions went beyond legitimate representation and “crossed the line into advocacy against the project.” These activities amounted to “concrete facts” that showed the councilmember acted as an advocate rather than an impartial decisionmaker and should have recused himself from voting on the appeal. His actions demonstrated “an unacceptable probability of actual bias” and denied the developer a fair hearing.
The case shows how a local legislative body can be compromised when a biased participant publicly pronounces his or her neutrality regarding an adjudicative land use permit but has actually worked behind the scenes and “crossed the line” to seek its defeat. Adjudicative decisionmakers cannot prejudge the issues and covertly advocate for a particular outcome nor can they become advocates for their neighbors, friends, or associations within their community.
