City Councilmember's Conduct Demonstrated Bias Warranting Recusal

The Third Appellate District affirmed a trial court order. The court held that a councilmember's advocacy against one of the parties to a pending hearing before the city council denied that party a fair hearing.

Petrovich Development Company, LLC applied for a conditional use permit to construct and operate a gas station in the shopping center zone of a 72-acre Sacramento mixed use residential development called Curtis Center Village. The city planning commission approved the application, over the opposition of Eric Johnson, president of a local neighborhood association. Johnson and others appealed the decision to the city council, arguing that emissions from the gas station would be detrimental to public health.

Councilmember Jay Schenirer, who represented the Curtis Park neighborhood, met with Johnson to give him a list of "talking points" he should address in communications with the other councilmembers prior to hearing on his appeal. Johnson sent identically worded emails to three councilmembers, paraphrasing the "talking points" provided him by Schenirer. Schenirer sent the same list of "talking points" to the mayor. One of the mayor's advisors sent the mayor an email suggested that Schenirer was "confident that he has the votes (if not a unanimous one) to deny the approval." At the subsequent hearing on Johnson's appeal, Schenirer spoke at length, vigorously opposing the proposed gas station. The city council, including the mayor, voted seven to two to deny the conditional use permit.

Petrovich filed a petition for writ of mandate challenging the vote, arguing that Schenirer had demonstrated an unacceptable probability of actual bias. The trial court granted the petition and ordered the city to rescind its decision and hold a new hearing. The court further directed Schenirer to recuse himself from that hearing.

The court of appeal affirmed, holding that the record supported the trial court's finding that, in the days preceding the hearing, Schenirer ceased acting as a neutral and unbiased decisionmaker. He instead crossed the line into advocacy against the project. There was evidence that Schenirer was counting---if not securing---votes on the city council against the gas station and communicating an "update" on that score to the mayor. E-mailing the talking points to the mayor suggested behind-the-scenes advocacy against the gas station.

There was also evidence that Schenirer was "coaching" Johnson on how to prosecute the appeal. Schenirer thus took affirmative steps to assist opponents of the gas station. His failure to recuse himself denied Petrovich a fair hearing.

Petrovich Development Company, LLC v. City of Sacramento (Johnson); Third DCA, May 12, 2020