Laws, Regulations & Annotations

Property Taxes Law Guide – Revision 2012
 

Additional Government Code Provisions

Provisions Relating to Employment of Special Counsel for Assessor

DIVISION 4. EMPLOYEES

PART 1. GENERAL

Employment of Special Counsel for Assessor

31000.6. Conflict of interest. (a) Upon request of the assessor or the sheriff of the county, the board of supervisors shall contract with and employ legal counsel to assist the assessor or the sheriff in the performance of his or her duties in any case where the county counsel or the district attorney would have a conflict of interest in representing the assessor or the sheriff.

(b) In the event that the board of supervisors does not concur with the assessor or the sheriff that a conflict of interest exists, the assessor or the sheriff, after giving notice to the county counsel or the district attorney, may initiate an ex parte proceeding before the presiding judge of the superior court. The county counsel or district attorney may file an affidavit in the proceeding in opposition to, or in support of, the assessor's or the sheriff's position.

(c) The presiding superior court judge that determines in any ex parte proceeding that a conflict actually exists, must, if requested by one of the parties, also rule whether representation by the county counsel or district attorney through the creation of an "ethical wall" is appropriate. The factors to be considered in this determination of whether an "ethical wall" should be created are: (1) equal representation, (2) level of support, (3) access to resources, (4) zealous representation, or (5) any other consideration that relates to proper representation.

(d) If a court determines that the action brought by the assessor or sheriff is frivolous and in bad faith, the assessor's office or sheriff's office shall pay their own legal costs and all costs incurred in the action by the opposing party. As used in this section, "bad faith" and "frivolous" have the meaning given in Section 128.5 of the Code of Civil Procedure.

(e) If the presiding judge determines that a conflict of interest does exist, and that representation by the county counsel or district attorney through the creation of an ethical wall is inappropriate, the board of supervisors shall immediately employ legal counsel to assist the assessor or the sheriff.

(f) As used in this section, "conflict of interest" means a conflict of interest as defined in Rule 3-310 of the Rules of Professional Conduct of the State Bar of California, as construed for public attorneys.

(g) This section shall also apply to any matter brought after an assessor or sheriff leaves office if the matter giving rise to the need for independent legal counsel was within the scope of the duties of the assessor or sheriff while in office, and the assessor or sheriff would have been authorized under this section to request the appointment of independent legal counsel.

History.—Added by Stats. 1966, p. 653 (First Extra Session), in effect October 8, 1966. Stats. 1971, p. 2087, in effect March 4, 1972, added the second paragraph. Stats. 2001, Ch. 41 (AB 1579), in effect January 1, 2002, designated the former first paragraph as subdivision (a), added "or the sheriff" after "assessor" in three places, and added "or her" after "his" in the first sentence therein; designated the former second paragraph as subdivision (b), added "or the sheriff" after "assessor" in two places in the first sentence, substituted "the" for "such" after "affidavit in" and added "or the sheriff's" after "assessor's" in the second sentence, and deleted the former third sentence therein, which provided that "If the presiding judge determines that a conflict of interest does exist, the board of supervisors shall immediately employ legal counsel to assist the assessor"; and added subdivisions (c), (d), (e), and (f). Stats. 2006, Ch. 423 (AB 2715), in effect September 22, 2006, added subdivision (g).

31000.7. Different counsel for assessor and board. The same law firm shall not be employed to advise or represent both the assessor and the county board of equalization on any matters relating to hearings before the county board of equalization. This prohibition shall not apply to the county counsel's office. Individual representatives of that office may represent the assessor and the county board of equalization, as long as the same individual does not represent both parties.

History.—Added by Stats. 1971, p. 2087, in effect March 4, 1972.

Due process.—Representation of the assessor and the county board of equalization by the same county counsel results in a denial of due process by depriving the taxpayer of a fair hearing. Midstate Theatres, Inc. v. Stanislaus County, 55 Cal.App.3d 864.

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