( Quintero, supra, 114 Cal.App.4th at p. 814.) In the seminal case of Howitt v. Superior Court (1992) 3 Cal.App.4th 1575 [ 5 Cal.Rptr.2d 196] ( Howitt), Justice Wiener first raised due process concerns over the fact that counsel in administrative agencies sometimes perform overlapping functions, acting as advisors to the decision maker while also taking on a prosecutorial role in proceedings before it, posing a risk that the decision maker's impartiality might be seriously compromised. "It is the attorney's dual role as both advocate for a party and adviser to the tribunal which does violence to that constitutional ideal."
The employee unsuccessfully petitioned the trial court for a writ of mandate after the county counsel's office denied his request to disqualify itself from advising the board. Howitt v. Superior Court (1992) 3 Cal.App.4th 1575 [ 5 Cal.Rptr.2d 196].Howitt v. Superior Court, supra, 3 Cal.App.4th at page 1578.
All of these cases, including our Supreme Court's decision in Morongo , supra , 45 Cal.4th 731, 88 Cal.Rptr.3d 610, 199 P.3d 1142, address a party's due process rights in a quasi-judicial administrative proceeding to an impartial review and decision by the administrative decision maker and in essence hold that an agency's staff may not act so as to create either the unacceptable risk of, or actual, bias by such a decision maker. In Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 5 Cal.Rptr.2d 196 (Howitt ), an employee in the midst of a grievance proceeding before a quasi-independent administrative tribunal that resolved county employment disputes argued in a writ petition that the county counsel's office should be barred from representing his employer and advising the tribunal at the same time. (Id . at p. 1578, 5 Cal.Rptr.2d 196.)
Preliminarily, we agree that in the context of administrative law, there is no absolute prohibition against the city attorney's office representing both the Board and other city agencies such as the police department. Provided certain guidelines are met, the city attorney's office may "act as an advocate for one party in a contested hearing while at the same time serving as the legal adviser for the decision maker." ( Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1579 [ 5 Cal.Rptr.2d 196].) But, "[p]erformance of both roles . . . is appropriate only if there are assurances that the adviser for the decision maker is screened from any inappropriate contact with the advocate."
(See Mathews v. Eldridge, supra, 424 U.S. at p. 348, 96 S.Ct. 893 [“[D]ifferences in the origin and function of administrative agencies ‘preclude wholesale transplantation of the rules of procedure, trial, and review which have evolved from the history and experience of courts.’ ”]; Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1581, 5 Cal.Rptr.2d 196 [“[T]he pure adversary model is not entitled to constitutionally enshrined exclusivity as the means for resolving disputes in ‘[t]he incredible variety of administrative mechanisms [utilized] in this country....’ ”]; 2 Pierce, Administrative Law Treatise (5th ed. 2010) Separation of Functions, § 9.9, p. 883[“[T]he strict agency-based separation of functions approach we have chosen in the criminal justice context is extremely expensive and inefficient,” and is not automatically the best approach for administrative disputes].)
" ( Id . at p. 5, 50 Cal.Rptr.3d 585, 145 P.3d 462.) Similarly, in Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 5 Cal.Rptr.2d 196 ( Howitt ) the same county counsel's office represented the county against an employee in a grievance proceeding and advised the quasi-independent adjudicatory body tasked with deciding the grievance. ( Id . at p. 1578, 5 Cal.Rptr.2d 196.)
See also Consumer Protection Div. v. Consumer Publishing Co., 304 Md. 731, 763, 501 A.2d 48 (1985) (combination of both investigative and adjudicatory functions within the Consumer Protection Division did not violate due process where individuals responsible for adjudicatory function did not participate in investigation stage of proceeding). A similar conclusion was reached in a California decision, which held that an asserted conflict of interest within a government law office would be resolved if appropriate screening mechanisms were adopted. Howitt v. Superior Court, 3 Cal.App.4th 1575, 5 Cal.Rptr.2d 196 (1992). In that case, a deputy sheriff challenged his transfer and suspension before the county employment appeals board, a quasi- independent administrative tribunal charged with adjudicating disputes between the county and county employees.
In Howitt v. Superior Court (1992) 3 Cal.App.4th 1575 (Howitt) our court addressed "the foundational question . . . whether a county counsel's office 'is ever permitted to place [it]self in [the] position' of acting as an advocate for one party in a contested hearing while at the same time serving as the legal adviser for the decision maker." (Id. at p. 1579.
( Id. at p. 94, 133 Cal.Rptr.2d 234.) In Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 5 Cal.Rptr.2d 196, after a county deputy sheriff was disciplined, he challenged the discipline before a quasi-independent administrative tribunal established to resolve disputes between the county and county employees. During a contested hearing, the sheriff's department was represented by county counsel, and county counsel also advised the appeals board. ( Id. at p. 1578, 5 Cal.Rptr.2d 196.)
DISCUSSION The Board is a quasi-independent administrative tribunal established by county ordinance and charged with adjudicating certain disputes between the county and county employees. (Gov. Code, § 3304, subd. (b); Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1578 [ 5 Cal.Rptr.2d 196] ( Howitt).) In disciplinary administrative proceedings, the burden of proving the charges rests upon the party making the charges.