Pictured: Ventura Mayor Matt LaVere on Jan. 12, 2020 in Ventura. Photo by Kimberly Rivers. 

by Kimberly Rivers

kimberly@vcreporter.com

An April 8, 2020, a decision by the California Appellate Court clarified rules for municipal decision makers regarding bias and impartiality, and led to Ventura Mayor Matt LaVere’s recusal from two public hearings last month. 

On July 7 and July 15, LaVere was compelled to recuse himself on the advice of Ventura City Attorney Greg Diaz to ensure a fair and unbiased decision regarding the future of the St. Junipero Serra statue. 

Diaz said the requirement that LaVere recuse himself is not rooted in “state law, but a matter of due process and fair hearings . . . a legal standard based on constitutional protections.” He pointed to the May 2020 published ruling of California’s Third District Court of Appeal in Petrovich Development Co. LLC v. City of Sacramento (1). Because it is a published opinion, the decision sets legal precedent.  

In Petrovich, the court found that a city council member acted with proven bias and demonstrated his mind was made up when he advocated against a development project before a public hearing in which the  council served as final decision maker. Text and email evidence in the Petrovich case demonstrated the members’ efforts leading up to the public hearing to ensure the project was not approved. 

Quasi-judicial vs. legislative actions

The requirement for lack of bias applies only to “certain types of decisions known as quasi-judicial hearings where councilmembers act more like judges than legislators,” explained Diaz. “In these [quasi-judicial] cases, the council applies the facts to existing law to see if the situation meets the requirements of existing law.  In this case, the first thing asked of the council [was] to find that the Bronze Statue does not qualify for historic status. To do so, they must apply the facts to the standards to determine if it meets the requirements — a classic quasi-judicial determination.”

Local bodies such as city councils, hearing boards, school boards and boards of supervisors serve in both capacities: legislative actions which establish laws and policies that apply to all future events, projects and programs, and quasi-judicial actions (also called administrative actions) in which the body reviews a particular item before them, applies existing laws and evidence presented, generally at a public hearing, to make findings that support a decision. (2) 

Legislative actions include adopting and amending local ordinances, general plans, zoning codes and personnel rules. Quasi-judicial decisions include approving or denying a development proposal, nuisance abatement, license revocations, an application for a Conditional Use Permit, or finding that a structure is a historical landmark. 

In a statement sent to a member of the public by LaVere on July 13, and obtained by the VCReporter, the mayor explained that he initially understood the process involving the Serra statue to be legislative. 

“It was my understanding that the council would craft a policy about moving the statue (a legislative duty),” said LaVere in the written statement, saying he met with certain stakeholders in an effort to “build the consensus about moving the statue to the mission.”

“For legislative work, we are allowed to make our position known publicly ahead of time and we can do whatever outreach or publicity we need to support the policies we are advancing,” said LaVere. “However, as the hearing got closer, our city attorney said that it would have to be a quasi-judicial hearing,” as the council had to “make certain findings . . . before we could decide to move it. At that point, I had already released my public statement and taken a public position that the statue should be moved, thus I was required to recuse myself from the hearing.”  

In cases where bias was found to be part of the decision, such as in the Petrovich matter, the remedy is that the decision be rescinded and the city re-hear the matter, with certain city council members recused from the proceedings. 

In its order on Petrovich, the third district court emphasized that in these type of matters a decision maker should not have “prejudged the specific facts of the case” and be “free of prejudice against or in favor of any party,” but that applicants need not “prove actual bias,” they are instead required to demonstrate “an unacceptable probability of actual bias on the part of a municipal decision maker.” 

But “a party seeking to show bias or prejudice on the part of an administrative decision maker [must] prove the same with concrete facts.” (1)

To defend a decision against legal action, an agency acting in a quasi-judicial role has to demonstrate a clear line between how the final decision was reached and the specific evidence and facts of the project before them. 

    1. Petrovich Development Co. LLC v. City of Sacramento, (2020) Cal. App. 3rd,  https://law.justia.com/cases/california/court-of-appeal/2020/c087283.html
    2. “Common Issues in Quasi-Judicial Hearings,” Alan U. Lundgren, League of California Cities. https://www.cacities.org/Resources-Documents/Member-Engagement/Professional-Departments/City-Attorneys/Library/2013/2013-Annual-Conference-City-Attorneys-Track/9-2013-Annunal-Adam-U-Lindgren-Common-Issues-in-Qu