Legislative Body Members Must be Neutral and Unbiased to Vote on Matters

In affirming a lower court’s rare decision to void a city’s conditional use permit denial, the California Court of Appeal said that, when a legislative body hears an application on a matter — like a CUP — it is acting in a “quasi-judicial” capacity, like a judge. When acting in a quasi-judicial capacity, members of that legislative body must be “neutral and unbiased.” This means he or she cannot have a personal conflict of interest, has not prejudged the facts and is free of prejudice against any of the parties.

The Third District Court of Appeal originally issued its unpublished decision April 8, but published Friday — meaning it now sets precedent in California. The status change does not change the court’s core decision, which was to strike down a Sacramento City Council decision denying a developer a CUP.

Developer Paul Petrovich’s company sought a CUP to construct a gas station at a multi-use commercial/residential development site he was developing. The appellate court affirmed a trial ruling finding that one of the councilmembers was impermissibly biased against the gas station project, thereby denying Petrovich a “fair hearing” on his CUP application. The lower court voided the denial and the appellate court upheld that decision in Petrovich Development Co. LLC v. City of Sacramento.

Petrovich’s CUP application for the gas station was opposed by a neighborhood association. Sacramento City Councilmember Jay Schenirer was a resident of the nearby neighborhood and a member and former board member of the neighborhood association that opposed the gas station. He had spoken publicly through the association about the plan for a gas station. The City’s Planning Commission voted to grant the CUP, but the neighborhood association appealed to the City Council. While the appeal was pending, Petrovich sought Schenirer’s disqualification from the matter for bias.

The city attorney rejected the challenge, citing that the Councilmember had not attacked the proposal or advocated against it, did not say publicly that his mind was made up, had not taken a public position in opposition to the proposal and said he would talk with his colleagues [deliberate] before he voted.

What the city attorney was presumably unaware of were a series of emails and meetings leading up to the Council vote involving Schenirer, the head of the neighborhood association, the mayor and other councilmembers. This meeting produced “talking points” against the proposal and demonstrated that Schenirer had both lined up the needed votes to kill the gas station CUP and that he intended to make a motion to reject the CUP at the hearing. The plan played out in the Council hearing and resulted in a 7-2 vote against the CUP. Petrovich filed a lawsuit to void the decision for bias and all of these behind-the-scenes maneuvers were revealed in discovery and trial.

The “neutral and unbiased” criteria that legislative body members must possess are required to afford the parties a “fair hearing,” the appellate court said.

The appellate court went on to conclude that even if only one of the decision-makers suffers from disqualifying bias, that is sufficient grounds to overturn the body’s decision — even if that individual’s vote was not determinative or necessary to the decision. The standard for “bias” is “an unacceptable probability of actual bias” proven by “concrete facts,” not implied from the circumstances. The constitutional threshold is reached when such “probability of bias” is “too high to be constitutionally tolerable.”

Like the superior court judge, the appellate court found the following factors did not demonstrate actual bias, they merely implied bias: residing in the neighborhood, being a member of the neighborhood association and addressing a union statement in favor of the gas station. The court noted that public officials are expected to, and have a right to, speak and express their views on matters of public interest without having to be recused for bias.

However, the emails and meetings in the run-up to the vote, “crossed the line,” the court found. The Councilmember’s statement that “he had the votes” and his plan for bringing the motion to deny the CUP demonstrated that he pre-judged the matter — that he had a pre-hearing commitment to an outcome.

Finally, the court rejected the City’s “harmless error” argument that Schenirer’s vote was not determinative because the Council voted 7-2 to deny the CUP. The court found that this was not a technical error, but a “fundamental flaw in the process,” requiring that it be voided.

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