An Unacceptable Probability of Actual Bias: When Decisionmakers Cross the Line in Administrative Appeals

Environmental/Land Use Alert (June 2, 2020)

The recently published opinion from the Third District Court of Appeal in Petrovich Development Company, LLC v. City of Sacramento (certified for publication on May 8, 2020) examines when city councilmembers impermissibly cross the line from neutral adjudicators to biased advocates when acting in a quasi-judicial role during their consideration of an appeal from an administrative body.

The case concerned an administrative appeal to the Sacramento City Council of the Planning Commission’s 8-3 decision to grant a conditional use permit for a gas station to Petrovich Development Company, LLC (Petrovich). Following an administrative appeal by two neighbors and the Sierra Curtis Neighborhood Association, the Planning Commission’s approval was overturned by the City Council with a 7-2 vote, with Councilmember Schenirer advocating against the gas station and making the motion to deny the requested conditional use permit. Petrovich sued, alleging among other things that Councilmember Schenirer demonstrated an “unacceptable probability of actual bias.” The trial court concurred that Schenirer was biased, and the appeal that culminated in the decision summarized here followed.

On appeal, the Court agreed Councilmember Schenirer demonstrated impermissible bias. While councilmembers are normally “policymakers and voices of their constituents,” when sitting in their quasi-adjudicatory capacity deciding an administrative appeal, councilmembers must be “neutral and unbiased,” meaning no conflict of interest, no prejudging of the facts, and freedom of prejudice against or in favor of any party.

Upon review of Schenirer’s conduct, the Court found the following actions did not demonstrate impermissible bias:
  • Membership in the Sierra Curtis Neighborhood Association.
  • Schenirer’s statement in a letter that the gas station would not fit in with the development as originally proposed, because the siting of the gas station was a matter of community concern and public importance.
  • The fact that Schenirer lived in a residential neighborhood adjacent to the proposed gas station as “[t]here was no evidence that Councilmember Schenirer’s particular residence would be impacted by the gas station more than any other in the neighborhood.”
However, the Court did find impermissible bias “in the run up to the City Council hearing and vote, [where] Councilmember Schenirer crossed the line into advocacy against the project.” Based on a number of emails and text messages, the Court specifically cited the following as evidence of impermissible bias:
  • There was evidence Schenirer was “counting—if not securing—votes” against the gas station and updating the Mayor to that effect. Schenirer had spoken to some of his colleagues about voting against the gas station, and had communicated to the Mayor’s advisor that he was confident he had a majority vote to deny the project prior to the hearing—which message the advisor conveyed to the Mayor by email.
  • Schenirer had prepared and circulated “talking points” to the Mayor and other councilmembers to assist in advocating against the gas station. The talking points were used by the Mayor at the hearing to carry the motion to deny the permit.
  • There was evidence Schenirer “coached” and assisted the opponents in how to prosecute the appeal. He texted one of the leaders to schedule a meeting to talk through the project prior to the hearing. He also offered up suggestions for meetings and prehearing presentations to other councilmembers. The “talking points” Schenirer prepared ended up in opponents’ opposition letters and emails to the gas station.
  • Schenirer organized the opposition and sequencing at the hearing. More specifically, Schenirer was the member to make the motion to reverse the Planning Commission decision in a planned sequence whereby Schenirer made the motion, which was then seconded by another councilmember, followed by talking points for denial.
For these reasons, the Court of Appeal held Schenirer acted as an advocate rather than a neutral and impartial decisionmaker. The proper course was for Schenirer to recuse himself from voting. Because he did not, Petrovich did not receive a fair hearing. The order invalidating the City’s decision and ordering a new hearing on appeal was affirmed.

[This case alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]