APPEAL from a judgment of the Superior Court of Los Angeles County. (Los Angeles County Super. Ct. No. BS129042) James C. Chalfant, Judge.
The opinion of the court was delivered by: J. Ashmann-gerst
CERTIFIED FOR PUBLICATION
Reversed and remanded with directions.
We hold that when a partner in a law firm represents a department within a city at an advisory arbitration regarding a personnel matter, and when the city's decisionmaking body later reviews that arbitrator'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 owe each other fiduciary duties the advisor partner is in the position of reviewing the efficacy 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 trial court's decision denying the writ petition of appellant Glenn Sabey (Sabey)--a police officer who is fighting his termination from employment--in which he asserts a due process challenge to the decision of the City Council (City Council) of the City of Pomona (City) rejecting an arbitrator's award reinstating Sabey to his job.
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 relationship ended in 2000 or 2001. They 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 police 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 acted as though he belonged at the complex. At one point, Sabey said he had an appointment with Atarian to cut his hair. Soon after, he left.
Subsequently, a Corona police officer spoke 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 Information 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 (Department) internal affairs office investigated Sabey and found that he violated various provisions of the Department's policies and procedures by trespassing in violation of Penal Code section 602; by committing a lewd act in public in violation of Penal Code section 647, subdivision (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 that may result in criminal prosecution; by failing ...