Howitt

*1578 Opinion

This petition for extraordinary relief presents another facet of attorney disqualification in the public sector. For the reasons set forth we will deny the petition without prejudice to further proceedings consistent with this opinion.

Factual and Procedural Background

Petitioner John R. Howitt, an Imperial County deputy sheriff, became embroiled in a dispute with the sheriff’s department regarding Howitt’s transfer from the Winterhaven station to the El Centro jail and summary suspension without pay. Howitt contended the retransfer and suspension were punitive in nature and sought an administrative hearing before the Imperial County Employment Appeals Board (Board). (See Gov. Code, § 3304, subd. (b).) The Board is a quasi-independent administrative tribunal established by county ordinance and charged with adjudicating certain disputes between the county and county employees.

After first rejecting Howitt’s request for a hearing, the county, represented by the county counsel’s office, eventually conceded the point and a hearing was scheduled. Howitt then discovered that not only was the sheriff’s department to be represented at the hearing by a deputy county…

Concurring. — I concur in the result reached by the majority only insofar as it denies petitioner’s writ.

*1588 I

As the majority notes, this case presents the following question: Is the county counsel’s office ever permitted to place itself in the position of acting in a dual capacity as an advocate for one party in a contested administrative hearing while at the same time serving as legal adviser to the decision maker at that hearing?

In response to this question the majority opinion states “ ‘yes’ provided there is compliance with the guidelines set forth in this opinion.” (Maj. opn., ante, p. 1579.)

The majority’s answer, however, is but a judicial wink which I find remarkable in its ambiguity.

Superficially, this immediate and direct response by the majority appears to accept the premise that as a general matter it does not offend established principles of due process for a county counsel’s office to act in a dual role of adviser and advocate.

To the contrary the majority actually adopts the opposite premise, i.e., that such dual capacity offends due process and is unacceptable unless certain conditions are met by the county counsel’s office. This premise is apparent…

WIENER, Acting P.J.

This petition for extraordinary relief presents another facet of attorney disqualification in the public sector. For the reasons set forth we will deny the petition without prejudice to further proceedings consistent with this opinion.

Petitioner John R. Howitt, an Imperial County deputy sheriff, became embroiled in a dispute with the sheriff's department regarding Howitt's transfer from the Winterhaven station to the El Centro jail and summary suspension without pay. Howitt contended the retransfer and suspension were punitive in nature and sought an administrative hearing before the Imperial County Employment Appeals Board (Board). (See Gov. Code, § 3304, subd. (b).) The Board is a quasi-independent administrative tribunal established by county ordinance and charged with adjudicating certain disputes between the county and county employees.

After first rejecting Howitt's request for a hearing, the county, represented by the county counsel's office, eventually conceded the point and a hearing was scheduled. Howitt then discovered that not only was the sheriff's department to be represented at the hearing by a deputy county counsel; in addition, the…