RULES AND RIGHTS: THE QUASI-JUDICIAL ROLE AND YOUR ETHICAL RESPONSIBILITIES

Legislative or Quasi-Judicial? Test: 1. Adopting a general rule or policy applicable to a wide class of individuals, interests or situations = Legislative . 2. Applying law that already exists. 3. Applying a general rule of policy to specific individuals, interests or situations = Quasi Judicial .

Examples of Quasi-Judicial Roles Platting Board - subdivision approval Planning Commission – conditional uses, variances, platting board-appeals Air Pollution Control Commission - variances for hydronic heater installation requirements

Examples of Quasi-Judicial Roles Public Transportation Advisory Council - appeals of denials of paratransit eligibility Animal Control Commission - animal bite hearings Board of Equalization – property assessment appeals

“Quasi-Judicial” Decisions that have direct effects on the rights of an individual person. Applies existing law rather than makes new law; Appeals. Requires a finding that from all of the evidence presented, the required standards have been met.

It Makes a BIG Difference In ethics and in due process considerations: When legislative – trial type procedures not required. When quasi-judicial – trial type procedures must be afforded to affected members of the public.

Fairness Standard Ethics Ceiling – Judicial Conduct Basic Rule – Be fair and impartial in actuality and appearance.

Quasi-Judicial Ethics is an Appearance Standard Actual Conflict of Interest / undue influence is not required. You fail this test if it merely appears that you have engaged in self-dealing or it merely looks like you may have been influenced. Public Perception = Public Trust

Quasi-Judicial Means Procedural Due Process Rights Opportunity to be heard. Procedures consistent with essentials of fair trial. Reviewable record. Right to a neutral and an impartial decision-maker.

Start off Right Right to NOTICE - informs as to nature of the proceeding. - gives reasonable time to prepare and present objections.

Rules and Rights / Impartiality Ethical Rule Be impartial in fact and action in the performance of official duties. Due Process Rights Right to neutral, impartial decision maker.

Basic Elements of Rule / Right Impartiality No undue influences. You must be impartial and uninvolved. No Conflicts of Interest. You must have no personal, or financial interest in the outcome – actual or apparent. No bias. You must be free of any strongly held bias against or in favor of a party.  

Basic Elements of Rule/Right Impartiality Pay Attention. One who judges must first hear and be respectful. You should avoid actions that would cause someone to reasonably question your ability to be fair.

Rules and Rights: Disclosure Ethical Rules: Disclose any previous involvement in matter or with parties. Disclose circumstances that could potentially interfere with impartiality. Disclose matters that would prevent you from hearing case under specific provisions applicable to your board or commission

Rules and Rights: Disclosure Due Process: Right to neutral, unbiased decision maker. Disclosure is a forward and backward looking rule.

Rules and Rights / Fair Trial Ethical Rule: Decision based on law and evidence presented at hearing. Right: Opportunity to be heard. Fair trial proceedings. solely

Rules and Rights / Fair Trial No prejudgment. You must not have any strongly held or inalterable beliefs or notions relevant to the facts at issue. No ex parte communications or other considerations outside the record.

“Ex Parte”?? No Can Do. On one side only; by or one party anything relevant that is not presented to opposing party. Can occur in a variety of forms: visual observation verbal conversation written correspondence / e-mails

Rationale / Ex Parte Rule Ensures right to fair trial. Unfair to take evidence from only one side at a hearing, also unfair to permit any side to present evidence to the decision makers in private. Right to be heard – rebut any evidence presented. Ensures right to reasonable notice and opportunity to prepare.

When do I need to be concerned? An application has been filed A matter appears on your agenda Beware: - Impending matters Example: you speak to someone on Monday and they file an application the following day - Appeals Example: a court remands a decision to you for re-hearing but you’ve spoken to one of the parties

General Rules re Ex Parte AVOID the contact. If you accidentally have an ex parte contact, DISCLOSE it on the record at the beginning of the meeting. Discuss WHAT was related to you. State whether you believe it has impacted your opinion or view of the matter and whether you can still be UNBIASED. Give notice and ALLOW response if necessary and permissible under rules.

What if…. You get a phone call or email? You run into someone on the street? You are at a meeting and the matter comes up for discussion? You conduct a site visit and the applicant or a neighbor is there? You hear a discussion on a radio program or read an editorial in the newspaper?

DISCLOSE !!

What do you need to disclose? At a minimum, the substance of the outside contact and the identity of the person making the contact. If it is in written form, make the actual email, letter, photograph, facsimile, etc. a part of the record.

Ways to avoid inadvertent ex-parte contacts Be familiar with your upcoming agendas. As soon as you sense that you are about to be in an ex parte situation, stop the person from discussing it and tell them how they can be heard on the issue. Avoid putting personal mailing addresses on websites.

Finish Strong Right to reviewable record. Findings of fact and conclusions that allow court to determine that you followed applicable rules and procedures.

Scenario #1 Applicant applied to renew license to run a dog kennel. After denial of the license, the owner appealed to the Animal Control Board. The Board’s notice of hearing (issued 3 days before the hearing) included language notifying the parties that the hearing was on the record and the Board would not accept any new testimony or evidence. The owner however, without serving the opposing party, submitted letters from his veterinarian and neighbors. The Board reversed the decision and granted renewal of the license.

Did Stout’s notice violate due process? Notice did not violate due process because the board’s hearing was supposed to be non- participatory so no need for Stout to prepare.

Were the board’s procedures consistent with essential of fair trial? Fairness can rarely be obtained by secret, one- sided determination of facts decisive of rights. Ex parte receipt of additional evidence offended basic requirements of due process and denied Stout a fair and impartial hearing. Stout was not given an opportunity to cross-examine or rebut the additional evidence by any other means.

Rights were violated but were ethical rules? Decision based on law and evidence in the record. Impartial in fact and action? Full disclosure?

Nash had Borough permit to harvest timber Nash had Borough permit to harvest timber. After staff terminated the permit, Nash appealed to the Board of Adjustment and Appeals. After briefing, Nash inquired about presenting witnesses at the Board hearing and was told by the Clerk that only “interested parties” could be heard. Clerk later told Nash that Board Chair had confirmed that he could not call any witnesses. Despite Nash’s repeated request to be notified in advance who could testify, he received no response. At the hearing the Board allowed a Borough employee to testify through submitted affidavit so he “wouldn’t have to leave his office during a busy day.” The Board upheld the Borough’s determination.

Due Process Violations? Let’s Count the Ways The Board “effectively denied Nash’s notice and opportunity to be heard and failed to provide procedures consistent with the essentials of a fair trial.”

Due Process Violations? Let’s Count the Ways The exclusion of witnesses who are not “interested parties” deprived Nash of opportunity to be heard and prevented him from presenting material, relevant evidence. It is “inappropriate for a claimant in an administrative hearing to not know in advance if he will be allowed to call witnesses. Adequate, fair procedures should provide notice as to who may testify.” Board’s “asymmetric allowance” of the Borough’s affidavit “falls short of the procedural fairness required for due process.

Ethical Violations? Impartial? Was there proof that decision maker interfered with orderly presentation of evidence?