Court Case Confirms Elected Officials Must Give Appearance of Being Fair at Hearings
by William R. Galstan on February 12, 2015
posted in Zoning,
It’s common knowledge that an elected official who has an economic interest in a matter coming before the agency cannot participate in the decision. But how about an official who has such strong feelings about the application that it seems his or her mind was made up prior to the hearing?
In a recent case, Woody’s Group v. City of Newport Beach, the state Court of Appeal underscored existing law by stating that officials must at least give the impression that they are open-minded about the outcome of applications coming before them.
A restaurant and bar had filed an application with the city to allow dancing inside the restaurant, stay open until 2 a.m. and make certain physical improvements. The city’s planning commission approved the application.
One city councilman was opposed to the application because of past incidents of public intoxication and nuisances allegedly connected to the establishment. He filed an appeal to the planning commission’s approval, and then participated at the City Council meeting when the appeal was heard.
The councilman who filed the appeal made comments at the hearing that filled 13 pages of transcript. He later admitted that he had read from a text he prepared prior to the meeting. The other councilmembers’ comments were only a few paragraphs each.
Another problem discussed by the court was the fact that the councilmember was allowed to file his appeal without paying the customary appeal filing fee. The city stated that it typically waived appeal filing fees for city councilmembers, because they act on behalf of the city as a whole. However, the court found that since there was no authority in local ordinance for the fee to be waived, this practice would “change the rules in the middle of the game.”
Due process requires unbiased hearing officers
The court noted that city councils are often seen as legislative bodies, where there is no requirement for members to be impartial. However, at times city councils act in an adjudicatory capacity, sitting in roles similar to judges. Applications for land use permits are examples of such matters. Applicants are entitled to a fair hearing, meaning that the persons hearing the application must be neutral and unbiased. There must not be a “probability” of bias on the part of a member, the court said.
Here, there was a distinct probability that the councilmember was biased against the application because he had filed the appeal against it and had written an extensive statement against the application prior to the hearing. The city council’s granting of the appeal and denial of the application was reversed by the court.
May councilmembers file appeals to be heard by themselves?
No clear answer to this question is provided by the decision. The court did comment that “you cannot be a judge in your own case”, but then discussed a prior appellate decision in which a councilmember, authorized by his city’s municipal code to do so, filed an appeal of a lower commission’s decision and participated in the appeal hearing, but did not “take charge of and control the hearing”. Thus it may be possible for councilmembers to file appeals and to participate in the appeal hearing if: 1) an ordinance authorizes this and its procedures are followed; and 2) the councilmember has the appearance of being open-minded during the hearing.
Other examples of conduct demonstrating bias
The court traced examples of other cases where a decision-maker was held to be biased and should have been disqualified from participating in the hearing:
- A planning commissioner who wrote an article attacking project under consideration;
- A personnel commissioner who investigated charges against an officer and then participated in a disciplinary hearing;
- Members of city council who were personally embroiled with police chief and then acted on discipline of chief.
Lessons to be learned from the case
The following general guidelines can be drawn from this case:
- Although councilmembers can have personal opinions or feelings about an application coming before them, they should conduct themselves in a way that demonstrates an open mind and a willingness to decide the matter on the facts presented at the hearing;
- It is questionable whether a councilmember who files an appeal may participate in the hearing on the appeal;
- If the councilmember is to participate in the appeal that he or she filed, there must be specific authority in local ordinance for this to be done, the rules stated in that ordinance must be followed, and the appealing councilmember should provide every appearance of being open-minded and unbiased during the appeal.
