The Conflicts of Boards Acting in a Quasi-Judicial Manner
One thing I have scarcely mentioned in my blog are ethical rules
related to a local board or commission when it is acting in a
quasi-judicial manner. I mentioned the common-law conflicts in such
circumstances in <a href="http://www.cityethics.org/content/court-decision-focuses-reasons-behind…; target="”_blank”">a
recent
blog post</a>, as well as the absolute immunity given to the
Philadelphia ethics board due to its quasi-judicial activities in <a href="http://www.cityethics.org/content/ecs-immune-system" target="”_blank”">another
recent blog post</a>.<br>
<br>
But the only mention of an ethics law relating to quasi-judicial
activities is in a comment to <a href="http://www.cityethics.org/content/how-deal-responsibly-conflict-falls-b…; target="”_blank”">another
recent
blog post</a>. The comment says that in Washington state, when a
local legislative body acts in a quasi-judicial manner, there is an
appearance of fairness standard relating to its members' conflicts.<br>
<br>
In many cases, the standards relating to judges' conflicts are stricter
than those relating to officials' conflicts. A judge's decisions should
be above suspicion, since they so directly deal with the freedom and
economic situation of individuals. But often officials deal just as
directly with at least the economic situation of individuals and
businesses, especially in the context of land use proceedings.<br>
<br>
A new North Carolina land use blog, <a href="http://nclegallandscapes.wordpress.com/" target="”_blank”">NC Legal Landscapes</a>,
by
land use attorney Tom Terrell, has <a href="http://nclegallandscapes.wordpress.com/2010/02/14/legislating-ethics-pa…; target="”_blank”">a
new
post</a> about a NC law that has some strict and unusual conflict
standards for local bodies that function as a board of adjustment,
which is the NC name for zoning board (the law for cities is
60A-388(e1), for counties 153a-345(e1)):<br>
<ul>
A member of the board or any other body exercising the functions
of a board of adjustment shall not participate in or vote on any
quasi-judicial matter in a manner that would violate affected
persons’
constitutional rights to an impartial decision maker. Impermissible
conflicts include, but are not limited to, a member having a fixed
opinion prior to hearing the matter that is not susceptible
to change,
undisclosed ex parte communications, a close familial, business, or
other associational relationship with an affected person, or
a
financial interest in the outcome of the matter. If an
objection is
raised to a member’s participation and that member does not recuse
himself or herself, the remaining members shall by majority vote
rule
on the objection.<br>
</ul>
The biggest difference from ordinary conflict provisions is the mention
of both "constitutional rights" and "an impartial decision maker" in
the first sentence. The ideal of impartiality takes the law beyond
ordinary conflicts by including as a conflict having a fixed opinion.
This would mean that a strong anti-development zoning board member, elected
precisely because of her strong position on development, would be considered to have a
conflict. And yet there is nothing unethical here, nothing about the official's personal interest.<br>
<br>
Of course, it is best for anyone to weigh all the facts before her, but
there is no way of knowing whether or not she did. Who is to say
whether someone's view is "susceptible to change"? This is a standard
that cannot be enforced, and is even hard to apply to oneself, but it certainly can be used to attack board
members with strong opinions for or against development.<br>
<br>
It's also notable that in addition to family members and business
associates, a conflict is raised by any "other associational
relationship" with a person who would be affected by a zoning decision.
Would this include a friend, a fellow club or organization member, a customer?<br>
<br>
If this was only a guideline, I would say it was a good one. But according to this provision, anyone is able to not only object to a board member with a vague relationship to
someone affected by a matter, but the other board members are able to vote, on the
basis of such a relationship, whether their fellow member
can participate. Such a vague standard opens a board member up to
political attack.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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