Thursday, October 13, 2011
S.C. Declines to Review Dispute Over Payment of Former City of Bell Official’s Legal Fees
By KENNETH OFGANG, Staff Writer
The California Supreme Court yesterday declined to intervene in a dispute over who should pay former Bell city administrator Robert Rizzo’s attorney fees.
The justices, at their weekly conference in San Francisco, voted unanimously to deny review of the summary denial, by this district’s Court of Appeal, of Rizzo’s writ petition.
Rizzo, represented by attorney James Spertus, filed the petition last month, after the appellate court’s Div. Two declined to hear the merits of the dispute.
Los Angeles Superior Court Judge Ralph Dau ruled in July that Rizzo’s bid for an order indemnifying him for the costs of defending himself against the city’s civil suit and related criminal prosecution raises issues that must be resolved by a jury. The city and the district attorney are claiming that Rizzo and other ex-officials conspired to defraud the small municipality out of millions of dollars by awarding themselves excessive salaries, and taking illegal benefits and loans of public money.
Spertus told reporters after the hearing before Dau that the city was required both by statute and by a 1996 contract to pay the fees, and that it was “tragic” that the case will now have to go to trial. The city, which is represented by Meyers Nave Riback Silver & Wilson, claims that Rizzo acted with malice and for his own benefit rather than the city’s.
In other conference action, the justices unanimously denied a request to depublish the ruling of this district’s Court of Appeal in Absmeier v. Simi Valley Unified School District (2011) 196 Cal.App.4th 311.
Div. Six ruled on June 7 that a former school official’s administrative appeal of the termination of his employment had to be reconsidered because the administrative law judge abandoned his duties. The court held that having a law firm review the transcripts of the administrative hearing and render a decision did not cure the defect, but instead created “a second bigger problem.”
John Absmeier worked as personnel director for the school district before he was terminated in 2002. After Absmeier requested a hearing to review his dismissal, the district appointed Carl Lange as the administrative law judge to conduct this hearing.
On Oct. 23, 2003, after the presentation of the testimony, closing arguments and briefs, Lange took the case under submission.
Lange promised the parties that he would comply with the district’s rule requiring a decision be returned in less than 10 working days. But after waiting more than five months for a decision, and after Lange told the district he had recently sold his home and relocated, and thus had “been unable to visit this case in any depth,” the district retained the law firm of Miller, Brown & Dannis “to review the transcript record and all evidentiary exhibits and provide the Commission with a report and recommendation.”
That law firm later filed a 46-page decision, based on the written transcript of the hearings Lange had conducted, which weighed the evidence and resolved conflicts in the testimony in favor of the school district.
After a Ventura Superior Court judge denied Absmeier’s petition for writ of administrative mandate, the Court of Appeal reversed. Presiding Justice Arthur Gilbert explained that the district had good cause to remove Lange as the hearing officer, but said that the law firm was not a suitable replacement.
Gilbert said it was “inappropriate” for Lange to “[i]nject his personal business and problems into this case,” and that his letter “leads to the reasonable inference that he gave priority to the sale of his home over his duty to render a prompt decision.”
He went on to note that “nothing” in the district’s rules for conducting hearings authorized the appointment of a law firm to assume the role of hearing officer, and said Absmeier was entitled to a trier of fact who could see the demeanor of the witnesses as they testified and rule on their credibility.
The unsucessful request for depublication was made by the former Miller Dannis firm, now Dannis Woliver Kelley.
Copyright 2011, Metropolitan News Company