Posted by: Patricia Salkin | November 12, 2008

No Ethical or Due Process Violation Where County Counsel Represented County in Proceeding Before the Board and Subsequently Drafted Board’s Findings

A Kansas Appeals Court held that the mere fact that the county counsel represented the county in a quasi-judicial proceeding to determine damages as a result of the County’s vacation of two unimproved roads that provided access to a ranch, and that the counsel had a long-standing relationship as the board’s legal advisor, was alone insufficient to find a due process violation.  While the plaintiff argued that the fact that the attorney offered evidence at the Commission hearing, cross-examined witnesses at the hearing, and then drafted the decision for the Commission, constituted a violation of his due process rights, the Court found no evidence to suggest to that the attorney’s action in drafting the Board’s finding and order had actually affected the commission’s decision. 

Although the plaintiff asserted that the attorney’s “dual role” had “created a probability of actual bias and impartiality on the part of the Board that is simply too high to be constitutionally tolerable,” the Court noted that the plaintiff conceded that the attorney did not conduct himself in a manner to cause such bias to occur.  The Court found no evidence in the record to suggest that the attorney’s actions created an appearance of impropriety.  In fact, commissioners testified that the attorney did not influence their decision.  Lastly, the Court noted that the Plaintiff never request that the attorney withdraw from any of the proceedings, nor did he request that the Commission retain separate counsel.

                                     

The Court concluded, “Without evidence that an attorney’s action in representing a boar at a quasi-judicial hearing as well as advising the Commission has actually affected the Commission’s decision, we will not find a due process violation.”

 

Davenport Pastures, LP v. Morris County Board of County Commissioners, 2008 WL 4754925 (Kan. App. 10/31/2008).

 

The opinion can be accessed at:

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2008/20081031/98342.htm


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