DUE PROCESS HYPOTHETICALS LEAGUE OF CALIFORNIA CITIES CITY ATTORNEYS DEPARTMENT SPRING CONFERENCE 2005 Hypothetical # 1 The city's planning department staff is processing development permits and a conditional use permit for a complicated mixed use development consisting of retail commercial, restaurant and residential condominium uses. An EIR is prepared for the project. Planning staff consults extensively with the city attorney through the process to assure that the application is being processed correctly. The city attorney reviews and edits draft staff reports, reviews the EIR for adequacy and is a part of the team processing the application. Ultimately, the planning staff recommends that the project be denied; the city attorney, however, plays no role in the making of that recommendation. At the public hearing before the planning commission, the city attorney sits as legal advisor to the commission. Does the applicant have any basis to challenge the city attorney's participation as advisor to the commission? J.Vhat about when the matter is heard on appeal by the City Council? Does the current state of the case law warrant advising planning staff to cease making any recommendations to the decision making body on land use matters?
Hypothetical # 2: The city puts a sewer rehabilitation project out to bid. Upon checking references for the low bidder, the public works director discovers that the low bidder has had many serious problems performing similar projects in other cities. The public works director consults with the city attorney. The city attorney recommends that she obtain documents from every city for which this contractor has performed a similar project in the last three years, and to ask the bidder to provide financial and organizational information about its company. The city attorney also checks into the litigation history of the bidder. The city attorney and the public works director together review the documents obtained as part of the investigation, and discover a disturbing pattern of poor performance, delays, project mismanagement, financial irregularities and imposition of liquidated damages. Together, they decide to recommend that the contractor be disqualified as not responsible, and the project be awarded to the second low bidder. The bidder is so advised, and requests a hearing before the city council to contest the disqualification and present evidence of responsibility. The public works director prepares an extensive staff report summarizing all of the information acquired in the investigation; the report is then heavily edited by the city attorney. A hearing on the disqualification is scheduled before the city council. May the city attorney sit as advisor to the city council and give advice on the requirements fo r disqualification and other legal issues that arise during the hearing? Would the answer be different if the hearing concerned staffs refusal to pre-qualify a bidder? 2
Hypothetical # 3 The city's personnel director is conducting an investigation of a sexual harassment complaint. She is interviewing employees who allegedly have knowledge of several incidents of harassment by the same employee. In the course of her investigation, she calls the city attorney for general advice as to how much evidence she will need to make a case. The personnel director then prepares written summaries of her interviews, prepares written factual conclusions and makes a recommendation for discipline. Before forwarding this document to the city manager for a final decision, she runs it by the city attorney, to assure that it is in good shape. The city attorney reviews the report for substance and makes several nonsubstantive editorial changes to the document. The city manager reviews the report and concurs with the proposed discipline. The personnel director then begins preparation of a formal Notice of Intent to discipline. She needs help with the document and looks to the city attorney for assistance. At that point, the city attorney suggests bringing in special labor counsel to assist the personnel director in pursuing discipline against the harasser. Has the city attorney already crossed the line, or may the city attorney later advise the personnel commission when the discipline is appealed to that body? Would the answer be di ferent if the city attorney's sole involvement been to advise the city manager as to whether the evidence supports the level of discipline the manager intends to impose? In the course of assisting the personnel director in pursuing the disciplinary action, outside labor counsel observes a number of deficiencies in the city's personnel rules and processes. He believes these deficiencies could have a detrimental impact both on this case, and future cases. Would it be proper fo r outside labor counsel to recommend changes to the personnel rules while this matter is pending? 3
Hypothetical# 4 An outdoor advertising company installs a billboard containing lighting that disturbs the occupants of nearby residences and offices. Staff is unable to convince the billboard operator to dim or eliminate the lighting. Several meetings are conducted with the operator, its attorney, city staff and the city attorney to discuss possible solutions. The discussions are not fruitful. City staff decides to bring a nuisance abatement proceeding to declare the billboard a nuisance. At that point, the city attorney suggests that an outside attorney be engaged to assist staff in preparing the reports necessary to make out a case of nuisance before the city council. May the city attorney advise the city council when the hearing is conducted? If the city attorney advises the billboard operator and its attorney in advance that she will not participate in any discussions because she does not want to compromise her ability to advise the city council later, may the billboard operator waive the due process argument in order to allow the city attorney to participate in these discussions? Same facts as above, but assume that instead of bringing in an outside attorney, the city attorney decides to himself prosecute the company for abatement of the nuisance. He obtains authorization from the city council to commence a civil abatement action. While that matter is pending, the same company applies for a permit to place another billboard at another location in the city. The permit application is subject to approval by the planning commission. As it prepares the staff report for the commission, the planning staff has questions about the application and needs legal advice. May the city attorney provide advice to the staff on the new application and later serve as advisor to the planning commission when the application is brought to public hearing? Suppose the city attorney nonetheless advises staff. the commission and the city council on the new application, and the billboard operator fails to object to her participation; the permit is denied, the operator brings a writ of mandate action and raises the commingling argument for the first time in that action. Has the argument been waived? 4
Hypothetical# 5 The city attorney's office consists of 15 lawyers. One assistant city attorney ("land use assistant") is assigned to advise the planning department staff and the planning commission; another assistant ("prosecution assistant") is assigned to assist code enforcement staff in prosecuting code violations, both in administrative proceedings and in criminal prosecutions. The planning director oversees both the planning and code enforcement staff. A large restaurant/nightclub in the city is applying for an amendment to its conditional use permit to expand and to allow eating and drinking on an outdoor patio. The land use assistant has had numerous telephone conversations with the restaurant's attorney about the application; in particular, the attorney is trying to persuade the staff not to require an EIR, and to give the application a favorable recommendation when it comes before the planning commission. Meanwhile, the city's code enforcement staff had been working with the prosecution assistant to prosecute the restaurant for various violations of its use permit and of the municipal code. A permit revocation proceeding has not yet been initiated. However, the existence of these violations and of this code enforcement effort will be disclosed to the planning commission as it considers the applicant's request for amendment of the condi tiona! use permit. May the land use assistant discuss the status oft he code prosecution e fort with the planning director relative to how it will be utilized in the pending CUP amendment proceeding? May the land use assistant discuss the status of the code prosecutions with the prosecution assistant? May the land use assistant discuss the potential impact of the code prosecution on the applicant's pending CUP amendment application with the restaurant's attorney? May both the land use assistant and the prosecution assistant separately seek advice on these matters fr om the city attorney? May the prosecution assistant appear before the planning commission to advocate denial of the CUP amendment application? 5
Hypothetical # 6 The city attorney's office is staffed with two attorneys, the city attorney and an assistant city attorney. The assistant has two years of experience in municipal law. The city attorney is responsible for all employment related decisions pertaining to her assistants. The city attorney sits as advisor to both the Planning Commission and the City Council. A number of card rooms operate in the city under use permits, historically creating a variety of problems for the city. One card room in particular is a perennial problem, frequently operating in violation of permit conditions and the municipal code. Code enforcement staff has decided to bring a permit revocation proceeding against this card room. The city attorney assigns her assistant to help staff in preparing and presenting the case for revocation. She instructs her assistant not to discuss the matter with her. When the matter comes before the city council for a revocation hearing, the assistant helps to present the case for revocation. The city attorney sits as advisor to the council The permit is revoked. Has an adequate ethical wall been established between the city attorney and her assistant to avoid a commingling problem? The card room owner files a writ of mandate challenging the revocation. The city attorney defends the city in the writ and prevails in the Superior Court. No appeal is taken from the ruling. May the city attorney call upon her assistant for help in preparing pleadings in the litigation? A year after the revocation, as is permitted by the city's rules, the same owner files an application for a new use permit to operate a new card room. The planning commission conducts a public hearing on an application. There is a lot of heated testimony and much public opposition. The commission decides to deny the permit; the city attorney advises the commission and assists the commission in formulating its findings for denial. The applicant appeals the denial to the city council. in view of her defense of the writ of mandate, may the city attorney advise the planning commission? Assuming that she may, is there any impediment to the city attorney advising the city council at the appeal hearing? A short time later, the city attorney decides to give her assistant more responsibility by making him advisor to the planning commission. Does this create a problem under Quintero? In fu ture permit revocation cases, may the city attorney assist code enforcement staff in preparing and presenting the case for revocation before the planning commission, while the assistant city attorney sits as advisor to the commission? 6