OFFICE OF THE CITY ATTORNEY
ROCKARD J. DELGADlLLO
CITY ATTORNEY
OPINION NO. 2001:5
NOV 8, 2001
OPINION RE:
Considerations of a Board of Rights When Adjudicating Disciplinary Matters Arising from
Allegations of Misconduct by a Sworn Member of a Previous Boards of Rights; Procedures
for Removal of an Allegedly Biased Sworn Member of a Board of Rights
Captain Vance Proctor, Chairman
Captain Allan Patrick Michelena, Member
Mr. David Shapiro, Member
[Board of Rights: In the matter of
Joseph Curreri, #21085 ]
304 South Broadway, Room 350
Bradbury Building
Los Angeles, CA 90012
To the Members of the Board:
On August 6, 2001, this Board of Rights requested an opinion on the questions set forth
below. The Board of Rights had been convened at the option of the accused of ficer,
Captain III Joseph Curreri, after the Chief of Police had imposed a suspension of ten (10)
working days, pursuant to Charter section 1070 (b) (2). The Amended Complaint (executed
by Acting Chief of Police David Gascon on July 18, 2001) states the following charges:
"Count 1. On or about June 22, 2000, you, while on duty and as an associate Board
member, made an improper remark, off the record during a break in a Board of Rights
hearing, when you stated your opinion regarding prospective testimony by Rafael Perez.
"Count 2. On or about June 22, 2000, you, while on duty and as an associate board
member, had an ex parte communication with Assistant Advocate, Maria Acosta, while on a
break in the hearing near the elevator on the fifth floor of the Bradbury Building."
The Board of Rights in which the allegations against Captain Curreri arose, In the matter of
Omar Veloz, #30740, Box file no. 19018, involved one ofthe officers accused as the result
of the series of allegations made by former Police Officer Rafael Perez involving the
Rampart CRASH unit. Proceedings in that matter included consideration of an allegation
being made in this matter, namely, that during an off-the-record discussion Captain Curreri
made a statement indicating his lack of confidence in former Officer Perez' credibility. By a
unanimous vote following a discussion with the Department's representative, that Board of
Rights refused to recuse Captain Curreri. It later found the accused officer not guilty.
In this matter the Board members were selected by the accused officer, and the Chief set
the time and place for the initial hearing pursuant to Charter section 1070 (g). On August 1,
2001, the Department Advocate filed a motion to recuse Board member Tammy Tatreau on
the grounds of an "actual or potential conflict of interest" arising from the fact that "her
husband Captain James Tatreau, a material witness, shall be called to testify in this
matter." At the August 6, 2001 hearing, the accused officer, Captain Curreri, opposed the
motion, and Captain Tammy Tatreau asserted that she could be fair and impartial to the
parties, refusing to recuse herself. At that hearing, the Board members sought the advice of
the undersigned regarding issues which we have identified below. 1
QUESTION NO. 1
May the Department, through a Board of Rights, discipline a sworn member of a previous
Board of Rights for acts or omissions arising from that previous Board of Rights?
ANSWER
Yes. However, the discretion of the Board of Rights to discipline a prior member of a Board
of Rights may be very limited for the reasons discussed below.
In the instant case, there is little in the way of facts upon which to base a legal analysis of
the propriety of any prospective discipline. The administrative hearing is ongoing.
Therefore, we suggest that, after a factual record is fully developed as to each charge, the
Board should seek the advice of this of fice regarding whether the facts established satisfy
the criteria for discipline.
QUESTION NO. 2
May a Board of Rights, acting upon the motion of a party, recuse a sworn member of a
Board of Rights after that member has been selected pursuant to the procedures of Charter
§ 1070(h)? If so, what standard should the Board use in determining whether or not a
sworn member should be recused?
ANSWER
Yes. Upon motion by a party, at any time during the proceeding, a Board of Rights should
recuse a sworn member upon a showing of actual bias. Further, a Board may recuse a
member upon a showing (a) that the probability of bias is unacceptably high; (b) that there
is a familial relationship between a member and a material witness; or (c) that the Board
member has a pecuniary or financial interest in the proceeding. The legal basis for those
standards are discussed below.
DISCUSSION
Government employees with tenure, such as the accused, cannot be disciplined absent the
opportunity of an adjudicatory hearing before an independent arbiter or tribunal. For of
ficers of the Police Department, such as the accused, such a hearing is provided by Boards
of Rights. The questions presented to us in regard to this unique matter 2 concern in
different ways issues relating to the independence of such Boards.
I.
TO PRESERVE THE INDEPENDENCE OF BOARDS OF RIGHTS,
DISCIPLINE FOR MISCONDUCT MUST BE LIMITED Tt) CONDUCT (A)
NOT TAKEN IN A QUASI-JUDICIAL CAPACITY, (B) TAKEN IN THE
COMPLETE ABSENCE OF JURISDICTION AS A QUASI-JUDICIAL
HEARING OFFICER, OR (C) UPON WHICH A JUDGE COULD BE
DISCIPLINED .
Charges of misconduct against a command officer in regard to his or her conduct as a
member of a Board of Rights present profound legal issues relating to the functioning of the
disciplinary process in the Police Department. Employee discipline serves as one means by
which an employer may regulate the conduct of its employees. In the context of the Police
Department and the assessment of conduct of its command officers, the notion of
misconduct concerns itself with behavior at odds with fitness and suitability for the
command officer position and potentially with service to the City as a police officer. So it is
a fair question to ask whether a cornmand officer's conduct while serving as a member of a
Board of Rights may concern his or her employment with the Department.
This question we answer in the affirmative. While serving as a Board member naturally is
not intended to constitute the primary role to be played by any command officer, that
service does constitute an important part of the job. The City Charter itself establishes a
disciplinary system for police officers which makes such service a possibility. In this sense,
therefore, the command officer's conduct as a Board member directly bears on the
command officer's performance of his or her duties. Moreover and not surprisingly,
misconduct as a Board member may rightly bear on the command officer's fitness and
suitability for performing other command duties -- depending on the misconduct in question.
These considerations militate in favor of accepting the possibility that the Department may
find it necessary to discipline a command officer for misconduct while serving as a Board
member.
Significant countervailing considerations exist, however. They flow from the role played by
Boards of Rights in the disciplinary process. Tenured government employees have due
process rights, and one component of due process is the right to an adjudicatory hearing
before an independent arbiter or tribunal when major discipline is concerned. The City
Charter translates this due process guaranty into its own assurance of a Board of Rights,
either by referral or appeal, for major discipline. To satisfy the demands of due process,
therefore, Boards of Rights must be independent. Would imposition of discipline of a Board
member by the Department threaten that constitutionally guaranteed independence? If a
Board member must answer for his or her conduct to some authority other than the law, is
independence compromised? The compromise of concern is the fear that command of
ficers in future Boards would be deterred by discipline imposed in this case from performing
their role in those cases in an objective, impartial manner.
Can these competing considerations be reconciled? We believe they can.
First, any discipline that would be imposed would be imposed by this Board. Because this
matter is now before this Board, we are not here concerned with the Chief of Police's
authority in these matters. 3 The courts have held that a Board of Rights hearing is a de
novo consideration of the discipline in question. Holcomb v. City of Los Angeles (1989) 210
Cal.App.3d 1560, 1565. Hence, should it turn out that this matter does result in discipline,
its legality would be dependent on the legality of these proceedings. This Board, like other
Boards, is independent.
Second, we believe that the notion of misconduct in this context must take into account the
need for judicial independence. Board members must have a substantial degree of latitude
in how they work to reach decisions in these important disciplinary matters. The absence of
that latitude could lead some command officers serving as Board members to refrain from
taking certain actions or decisions which may be in the interests of justice.
We must acknowledge that there is a lack of direct authority bearing on this precise
question. Faced with this circumstance, we necessarily must turn to the law concerning
analogous judicial officers.
We begin in this regard by noting the body of law that has developed in regard to civil suits
against judicial officers, including administrative law judges. A doctrine of judicial immunity
has developed that protects from civil suit sanctions the integrity of the decision-making
role. In California, that immunity applies to quasijudicial hearing officers. Taylor v. Mitzel
(1978) 82 Cal.App.3d 665, 671, 147 Cal.Rptr. 323, 325. But even that protection has its
limits: A judge will lose his or her immunity from suit "for nonjudicial actions, i.e., actions not
taken in the judge's judicial capacity" and "for actions, though judicial in nature, taken in the
complete absence of all jurisdiction." Mirales v. Waco, 502 U.S. 9,11, 112 S.Ct. 286 (1991).
As will be explained below, we believe that the foregoing legal standards, but only when
coupled with the law applicable to the discipline of judges, should form the legal foundation
upon which sworn Boards of Rights members can be disciplined. The application of these
standards to the instant matter will depend upon the facts developed as the result of the
ongoing hearing.
A. The Hearing Process Used to Adjudicate Property Rights must Be Consistent with Due
Process.
The Fifth and Fourteenth Amendments to the United States Constitution, and article I,
sections 7 and 15 of the California Constitution guarantee that no one may be deprived of
property without due process of law. Stated another way, property may not be taken without
procedural due process. Under the prevailing law, "when the government has conferred
upon a person a legally enforceable right or entitlement to a government benefit, such as
an interest in continued employment by the government absent sufficient cause for
termination, this right constitutes a property interest protected by due process principles."
Burrell v. City of Los Angeles (1989) 209 Cal.App.3d 568, 575, citing Perry v. Sindermann,
408 U.S. 593, 602-603 (1972); Board of Regents v. Roth, 408 U.S. 564 (1972); Skelly v.
State Personnel Bd. (1975) 15 Cal.3d 194, 206-207. Law enforcement officers have a
property right or interest in their employment following their probationary period. Charter §
1070(a).
Furthermore, although property interests are not created constitutionally, the measure of
whether due process is adequately met in a particular case is a constitutional standard:
"Although the state (or one of its subdivisions) has the prerogative to create a property
interest in an entitlement in the first instance, it does not have the prerogative to diminish
the minimum procedural guarantees of the Constitution once the property interests it
created have attached. . . the minimum requisite procedures are federally mandated."
Burrell, supra, at 576-577; Cleveland Board of Education v. Loudermill, 470 U.S. 532, 541
(1985).
B. To Be Consistent with Due Process, the Administrative Tribunal Must Be Fair and
Independent.
The right to a hearing by a fair and impartial tribunal is one of the basic requirements of due
process which applies to administrative agencies while acting in a quasijudicial manner.
Burrell, supra, at 577, citing Withrow v. Lartzn, 421 U.S. 35, 46 (1975), Schweiker v.
McClure, 456 U.S. 188, 195 (1982). Impartiality within this context means that the hearing
officer or Board member has no predisposition one way or another and decides the merits
of the action before him or her based upon an assessment of the evidence in whatever
form it is presented.
The Los Angeles Police Department Board of Rights Manual, in a comment regarding the
City Charter, affirms the necessity of maintaining the independent nature of Board
proceedings:
"The procedure outlined in the Charter section [§ 1070] is designed as a safeguard for
police officers against political interference and pressure, personal prejudice, intimidation,
and false accusation."
Board of Rights Manual (hereafter the "Manuat'), Introduction. Should a Board member be
subjected to restriction, control, or discipline for activities directly related to his or her
decision-making function on the Board, the Board of Rights would no longer be
independent. The result may be a disintegration of the constitutionality of the process itself.
See, e.g., Mennig v. City Council of Culver City (1978) 86 Cal.App.3d 341, 351. Subjecting
a Board member to discipline for such conduct could have a chilling effect on the ability of
Board members to carry out their duty to be fair, impartial decisionmakers. The Manual
itself recognizes the importance of protecting the deliberation process, wherein it states,
"Members of a Board of Rights may not be compelled to testify in any subsequent Board of
Rights regarding any such conclusion, decision, or ruling or their thought process or
rationale for such conclusion, decision or ruling that occurred at or in conjunction with a
prior ruling."
Manual, § 363.75. 4
C. In Adjudicating Discipline of a Former Member of a Board of Rights, a Board of Rights
has Limited Discretion and should exercise that discretion judiciously
The importance of restraint in the discipline of administrative factfinders may be
demonstrated by decisions discussing the immunities of judges and of ficials. For example,
Anderson v. Boyd, 714 F.2d 906 (9th Cir. 1983), analyzed the degree of immunity to which
parole officials (acting in adjudicatory or prosecutorial capacities) were entitled, and
emphasized that "an off~cial derives the appropriate degree of immunity not from his or her
administrative designation but by the function he or she performs." Id. at 907, citing Butz v.
Economou, 438 U.S. 478, 508-517 (1978). The court accorded a high level of immunity for
those of ficials "expressly in order to preserve the integrity of their decisions":
"We believe that parole board officials perform functionally comparable tasks to judges
when they decide to grant, deny, or revoke parole. The daily task of both judges and parole
board officials is the adjudication of specific cases or controversies. Their duty is often the
same: to render impartial decisions in cases and controversies that excite strong feelings
because the litigant's liberty is at stake. They face the same risk of constant unfounded
suits by those disappointed by the parole board's decisions.
"Judges enjoy absolute immunity from civil rights suits in order to keep the judicial
decision-making process pristine. As noted earlier, we expect and require the judge to be
an impartial fact finder. When he or she weighs the merits of a case, we do not want the
scales to be tipped by fear of litigation....
". . . Without this protection [afforded to parole board of ficials], there is the same danger
that the decision-maker might not impartially adjudicate the often difficult cases that come
before them [sic]."
Id. at 908, quoting Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir. 1981), cert. denied,
454 U.S. 1102 (1981).
By parity of reasoning, a Board of Rights exercising discretion regarding misconduct
committed by a Board member in a previous Board of Rights must remain mindful of the
latitude which our system of law typically grants to judicial and quasijudicial
decisionmakers. As stated in Anderson, "Without this protection, there is the . . . danger
that the decision-maker might not impartially adjudicate the often difficult cases that come
before them ...." Anderson v. Boyd, supra, at 908.
If we were to apply the scope of judicial immunity described by the United States Supreme
Court in Mireles v. Waco, 502 U.S. 9, 112 S.Ct. 286 (1991) to determine the exclusive
parameters of permissible discipline involving former Board members, the scope of such
discipline would be exceptionally limited. In Mireles, the Supreme Court found that its cases
"made it clear that the immunity is overcome in only two sets of circumstances. First, a
judge is not immune from liability in nonjudicial actions, i.e., actions not taken in the judge's
judicial capacity .... Second, a judge is not immune for actions, though judicial in nature,
taken in the complete absence of jurisdiction." Id. at 11-12.
If the Mireles case were to be applied by analogy, former members of Boards of Rights
could be disciplined as the result of a Board of Rights for the following: (1) misconduct
unrelated to service on a Board of Rights; and (2) misconduct related to a Board of Rights
which was taken "in the complete absence of jurisdiction." In determining whether an act is
in the complete absence of a judge's jurisdiction, the "relevant inquiry is to the 'nature' and
'function' of the act, not the 'act itself'.... In other words, we look to the particular act's
relation to a general function normally performed by a judge ...." Mireles, supra, 502 U.S. at
13. Stated alternatively, "ifjudicial immunity means anything, it means that a judge 'will not
be deprived of immunity because the action he took was in error . . . or was in excess of his
authority."' Mirales, supra, 502 U.S. at pp 12-13.
While we believe that the misconduct of a sworn Board member may be predicated upon
problematic conduct occurring in these two spheres, we also believe that to confine
misconduct to these limited bases would fail to take into account the basis upon which
judges may be disciplined, an apt analog to the circumstance of a Board member, and
would not promote the fair administration of justice.
We note that California judges may be disciplined for a broader range of misconduct than
that suggested by the analogy of the judicial immunity cases. The California Constitution,
Article VI, §1 8(d) states, in pertinent part,
"[T]he Commission on Judicial Performance may . . . (2) censure a judge or former judge or
remove a judge for action . . . that constitutes willful misconduct in office, persistent failure
or inability to perform the judge's duties, habitual intemperance in the use of intoxicants or
drugs, or conduct prejudicial to the administration of justice that brings the judicial office
into disrepute, or (3) publicly or privately admonish a judge or former judge found to have
engaged in an improper action or dereliction of duty."
Id. See, also, 2 B. Witkin, California Procedure (4th Ed. 1996), "Courts" § 71, at pp. 98-100
(listing cases).
Therefore, we conclude that the potential exists for discipline of a sworn Board member for
conduct for which judges would not be immune from civil suit and for conduct for which
judges might be disciplined. In light of the inherent limitations of any analysis made in the
absence of a full factual record, we recommend that the Board conduct the hearing in the
instant matter and allow this office to advise the Board before reaching its decision.
II. A BOARD OF RIGHTS MAY RECUSE A SWORN MEMBER UPON A PROPER
MOTION
A. The Procedure of the Charter and Board of Rights Manual
Both the City Charter and the Department's Board of Rights Manual describe the
composition of the Board and the selection of Board members. Pursuant to Charter § 1
070(h), an off~cer who is to appear before a Board of Rights selects the two sworn and one
civilian members of his or her panel by drawing cards containing the names of "qualified"
applicants. Charter, § 1070(h). Not included in the box are those persons who are
disqualified from being potential Board members:
"the accused, the accuser, the Chief of Police, any staff or command officer specifically
exempted by the Chief of Police in accordance with the provisions of the Board of Rights
Manual or successor document, and any other officer who may be prejudiced or
disqualified by reason of being a material witness to the facts constituting the charges
made, otherwise disqualified for cause as determined by the Chief, or who has a conflict of
interest."
Id. Therefore, the Chief has some discretionary authority to remove or disqualify a sworn
individual for a variety of reasons prior to inclusion of their name into the box for the
5
selection process. The Charter is silent, however, as to any action the Chief may take after
the selection of the Board has occurred. See, also, Manual, § 160.50. 6 Although neither the
Charter nor the Manual grants the Chief of Police the authority to disqualify a sitting Board
member, this does not foreclose the removal of a selected Board member by the Board
upon the proper showing where doing so is necessary to uphold the constitutionality of the
process for all involved.
B. The Parties Have a Right to an Unbiased Tribunal in an Administrative Hearing
It is well-established that the Due Process Clause requires a fair trial or hearing before a
fair and impartial tribunal prior to the deprivation of a recognizable property interest.
Withrow v. Larkin, supra, at 46; In re Murchison, 349 U.S. 136 (1955). As the Supreme
Court stated in Murchison:
"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course
requires an absence of actual bias in the trial of cases. But our system of law has
always endeavored to prevent even the probability of unfairness. To this end no man
can be a judge in his own case and no man is permitted to try cases where he has an
interest in the outcome."
In re Murchison, supra, at 136.
The lack of impartiality of a tribunal or one of its members may be established in one of two
ways: Either the facts and circumstances surrounding the proceeding will demonstrate
actual bias on the part of the decisionmaker (see Taylor v. Hayes, 418 U.S. 488, 501 -504
(1974)), or the decisionmaker has a personal or pecuniary interest in the outcome of the
proceedings which creates an appearance of partiality, even in the absence of a showing of
actual bias. Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 793, fn. 5;
Burrell, supra, at 582. The latter classification requires a showing that the probability of bias
is "too high to be constitutionally tolerable" (Withrow v. Larkin, supra, at 47; Mennig, supra,
at 351), and is not the same as the "appearance of bias" standard proposed and rejected
by the court.
C. A Hearing Officer Must be Recused Upon a Showing of Actual Bias
In Andrews v. Agricultural Labor Relations Bd., supra, the California Supreme Court
rejected an "appearance of bias" standard for a more concrete "actual bias" standard. The
Court defined and explained the word "bias" to mean "'the mental attitude or disposition of
the judge towards a party to the litigation, and not to any views that he may entertain
regarding the subject matter involved,"' (Id. at 790, quoting Evans v. Superior Court (1930)
107 Cal.App. 372, 380), and noted that these same principles concerning bias extended
beyond courts to judicial officers in administrative settings. Id. at 793-794. 7
The Court then held that a showing of bias or prejudice against an administrative
decisionmaker must be based on more than mere conjecture:
"Bias and prejudice are never implied and must be established by clear averments.
[Citation.] Indeed, a party's unilateral perception of an appearance of bias cannot be
a ground for disqualification unless we are ready to tolerate a system in which
disgruntled or dilatory litigants can wreak havoc with the orderly administration of
dispute-resolving tribunals....
"[O]ur courts have never required the disqualification of a judge unless the moving
party has been able to demonstrate concretely the actual existence of bias. We
cannot now exchange this established principle for one as vague, unmanageable
and laden with potential mischief as an 'appearance of bias' standard, despite our
deep concern for the objective and impartial discharge of all judicial duties in this
state."
Id. at 792-793; see also, U.S. v. State of Oregon, 44 F.3d 758, 772 (9th Cir. 1994) (movant
must establish "an unacceptable probability of actual bias on the part of those who have
actual decisionmaking power over their claims."); Stivers v. Pierce, 71 F.3d 732, 734 (9th
Cir. 1995) ("A mere suggestion of bias is not sufficient to overcome the presumption of
integrity and honesty."); Binkley v. City of Long Beach (1993) 16 Cal.App.4th 1795, 1810.
Furthermore, the Court stated that disqualification must be based upon prejudice which is
". . . sufficient to impair the judge's impartiality so that it appears probable that a fair trial
[hearing] cannot be held." Andrews, supra, at 792, quoting Ensher, Alexander & Barshoom
v. Ensher (1964) 225 Cal.App.2d 318,322; Gai v. City of Selma (1998) 68 Cal.App.4th 213,
221.
Similarly, courts have consistently affirmed that prior knowledge of the factual background
which may bear upon the Board's decision, or even a Board member's prehearing
expression of opinion on the results does not, as a matter of statutory or constitutional law,
alone disqualify the member from acting on the matter. Mennig v. City Council, supra, at
350, citing City of Fairf eld v. Superior Court (1975) 14 Cal.3d 768, 782. A decisionmaker
will not be disqualified merely because he or she has taken a position, even in public, on a
policy issue involving the dispute, in the absence of evidence that he or she "is not capable
of judging a particular controversy fairly on the basis of its own circumstances." Burrell,
supra, at 578, quoting Hortonville District v. Hortonville Education Association, 426 U.S.
482,493 (1976); United States v. Morgan, 313 U.S. 409, 421 (1941).
D. Certain Circumstances Suggest the Need for Hearing Officer Recusal
As noted in the foregoing, a litigant, even a litigant in an administrative hearing, is entitled
to the recusal of a hearing officer upon a showing of actual bias. Further, judicial decisions
suggest that recusal may be appropriate in other circumstances. We take this to mean that
an administrative body may exercise its discretion in such circumstances to recuse a sitting
hearing officer. These circumstances are described below.
1. A hearing officer may be recused when the probability of actual bias is unacceptably high
According to the United States Supreme Court, the basic test or standard to determine
whether a hearing officer or board may act is whether under the factual circumstances
presented, "experience teaches that the probability of actual bias on the part of the . . .
decisionmaker is too high to be constitutionally tolerable." Withrow v. Larkin, supra, at 47;
accord: Mennig v. City Council of Culver City, supra, at 350.
The law provides mechanisms for disqualification. As stated above, courts have
acknowledged that facts supporting bias and inability to judge fairly, such as evidence of a
personal or financial stake in the outcome of the decision rendered or a familial or
professional relationship to the litigant can disqualify a decisionmaker on due process
grounds in the absence of actual bias. United States v. Morgan, supra, at 492, 497; Burrell,
supra, at 579, 582; Andrews, supra, at 793, fn. S; Gai v. City of Selma, supra, at 222.
The Burrell Court summarized the state of California law in this area, which parallels federal
authorities, as follows:
". . . mere involvement in ongoing disciplinary proceedings does not, per se, violate
due process principles. Those principles are violated, conversely, if the official or
officials who take part in the proceedings are demonstrably biased or if, in the least,
circumstances such as personal or financial interest strongly suggest a lack of
impartiality."
Burrell, supra, at 582.
2. A hearing officer may be recused as a result of a familial relationship between that officer
and a material witness
The Andrews Court noted that the legislature codified, in Code of Civil Procedure § 170,
subdivisions 1-4, the "situations in which the probability or likelihood of the existence of
actual bias is so great that disqualification of a judicial officer is required ...." Andrews,
supra, at 19, n.5. 8 The due process principles embodied by the statutory provisions
certainly extend beyond the four corners of those statutes. Further, in the recent case of
Gai v. City of Selma, supra, the Court of Appeal chose to view the question of whether the
statutory judicial disqualification statutes applied to administrative hearings as one still
remaining open by the High Court of this State. Gai, supra, at 233 does not preclude the
removal of a decisionmaker where a familial relation between the decisionmaker and a
material witness creates the type of "probability of actual bias" that would justify
disqualification. Thus, to the extent that the statutory provisions governing judicial
disqualification employ general principles of due process, they are instructive.
Section 170.1 (a) of the Code of Civil Procedure provides that "A judge shall be disqualified
if any one or more of the following is true:
"(1) The judge has personal knowledge of disputed evidentiary facts concerning the
9
proceeding.
"A judge shall be deemed to have personal knowledge within the meaning of this
paragraph if the judge, or the spouse of the judge, or a person within the third
degree of relationship to either of them, or the spouse of such a person is to the
judge's knowledge likely to be a material witness in the proceeding." Cal. Code Civ.
Proc. § 170.1(a)(1).
We believe that the principles of § 170.1(a) could be applicable to Board members.
Therefore, a Board evaluating recusal on the basis of familial association should consider
whether there has been a sufficient offer of proof that the witness who is related to the
judicial officer is "material" to the presentation of evidence at the proceeding. The
knowledge attributed to a hearing officer which would cause the mandatory disqualification
is directly related to whether or not the judge's spouse's testimony is "material" to the
presentation of the case.
As has been explained within the context of a criminal proceeding, a witness is "material"
when that individual's testimony is so important that its absence would make the
prosecution's evidence legally insufficient to support a conviction of the charge. See Giglio
v. United States, 405 U.S. 150, 154-155 (1972); Chambers v. Mississippi, 410 U.S. 284
(1973); Pennsylvania v. Ritchie, 480 U.S. 39 (1987). However, an individual may not be a
material witness (for example):
3.
•
Where the witness was not personally present and percipient to the conversation
which constitutes one of the charges.
•
Where the individual is but one of numerous others that witnessed a particular
event, and whose testimony would therefore be cumulative as to that issue or
charge.
•
Where there are no facts in dispute.
A hearing officer may be recused as a result of pecuniary/financial interest
Although pecuniary interest has formed the basis of disqualification for bias, the Supreme
Court has explained that no due process violation will be found where the adjudicator
"might conceivably have had a slight pecuniary interest" in the outcome of the matter.
Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 825 (1986). Disqualification based on
this interest is proper only where the decisionmaker has a "direct, personal, substantial,
pecuniary interest." Id. at 822.
CONCLUSION
We trust that the foregoing is responsive to your inquiries.
Very truly yours
xxxxxxx x xxxxxxxxxx
ROCKARD J. DELGADILLO
City Attorney
RJD:JJG:mcv
(213) 485-5440
Doc# 151240
ENDNOTES:
1.
Subsequent to the request for this opinion, but prior to its completion, the Board of
Rights recused Captain Tammy Tatreau after receiving oral advice from this of fice. The
accused officer selected Captain Allan Patrick Michelena to serve in her place.
2.
To the best of our knowledge, the Police Department has never convened a Board
of Rights to review discipline imposed against a member of a previous Board of Rights for
alleged misconduct arising from that previous Board of Rights.
3.
Should a similar matter arise in the future, this of fice can advise the Chief of Police
in regard to how best to approach the integration of disciplinary and judicial independence
considerations in the handling of the matter.
4.
See California Evidence Code § 703.5.
5.
The Manual discusses disqualification of "persons" who either have actual contact
with the case or have become definitely prejudiced. Manual § 160.50. The provisions
governing civilians refers to "members", possibly further denoting the distinction between
individuals who have not yet been selected ("persons"), and individuals already selected to
serve ("members").
6.
The Department's Board of Rights Manual contains provisions covering the
selection, removal and replacement of civilian Board members prior to and after they have
been selected to serve on a Board of Rights panel. See Manual §§ 176, et seq., 177, and
210. As with the Charter provisions, discussed supra, the Manual contains no comparable
provisions governing the disqualification and replacement of sworn Board members
following the selection process.
7.
The Court was mindful that "the 'appearance of bias' standard may be particularly
untenable in certain administrative settings." Andrews, supra, at 793-794. Also, Burrell,
supra, at 582.
8.
These Code provisions were amended in 1984, and the numerical identification as
well as some of the phraseology was changed at that time.
9.
Within the context of mandatory judicial disqualification, 'personal knowledge' is
defined more broadly than in the Evidence Code. See Cal. Evid. Code § 702. By its very
terms, the disqualification statute assigns personal knowledge to a judge by the sole fact
that he or she is married to a material witness. No further showing of a sharing of
information, or ex parte communication is necessary -- the relationship presumes the
knowledge exists.