Not Dealing Responsibly with Conflicts Can Lead to Litigation and Overturning of Board Action

A failure to deal responsibly with one's conflicts of interest has
ramifications beyond the loss of public trust, and all the serious
problems that arise from this loss. This failure can also lead to
litigation and the overturning of actions by local government officials.<br>
<br>
A good example of this can be seen in the case of <a href="http://www.state.wv.us/wvsca/docs/Spring10/35274.htm&quot; target="”_blank”">Rissler v.
Jefferson County Board of Zoning Appeals</a>, decided by the West
Virginia Supreme Court on April 1 and <a href="http://lawoftheland.wordpress.com/2010/07/09/w-va-supreme-court-agrees-…; target="”_blank”">reported
on
in the Law of the Land blog</a> on July 9.<br>
<br>
Abutting landowners appealed a decision of the Jefferson County board
of zoning appeals, arguing that due process was lacking because two of
the board members had a conflict, as well as the board attorney.<br>
<br>

The court concluded that "due process requires a hearing before an
impartial and neutral tribunal, over which a disinterested adjudicator
presides," and that this applies to private persons "who serve as
adjudicators."<br>
<br>
The court also said that "the appearance of justice may require the
disqualification of an adjudicator, even when the adjudicator does not
have an actual interest in a matter over which he/she presides."<br>
<br>
What were the conflicts in this matter? One of the board members is
president of a company that inspects new sewage lines, and appellants
said that the company had an ongoing exclusive contract to provide
“construction inspection services,” such as sewage line inspections,
for the Jefferson County Public Service District. The appellants argued
that this company would benefit if the proposed subdivision were
developed.<br>
<br>
The court found that the contract began after the vote on
the subdivision, but that "the substantial pecuniary interest he
acquired in the [project] shortly after its approval certainly ‘raise a
suspicious judicial eyebrow’ as to whether [appellants] actually
received ‘[a] fair trial in a fair tribunal‘ as required by due
process." <br>
<br>
The court also found that the board member had formerly worked for one
of the developer's owners, and that this prior business relationship
created an appearance of impropriety sufficient to raise a suspicious
judicial eyebrow.<br>
<br>
The other board member's conflict is more direct: he is a lawyer and represented the
developer in 2004 (the year the board heard this matter). The court
concluded that "'even the probability of unfairness' should be avoided
to ensure that the hearing before an impartial tribunal guaranteed by
due process has been afforded."<br>
<br>
The board attorney situation is interesting. The board resolved most of
the issues in this matter on October 6, 2004, completing its work on
the matter on August 22, 2005. On December 10, 2004, the board attorney
announced his resignation as board attorney and on February 1, 2005 he
joined the law firm that is principal counsel to the developer.<br>
<br>
Amazingly, the question of whether this attorney could represent the
developer in the board of zoning appeals matter also came before the
Supreme Court, and the court said he could not. Only lawyers reading the rules of professional conduct as narrowly as possible could think there was any ethics question here.<br>
<br>
In the decision this blog post is focused on, the
court found that the board attorney had likely been negotiating with the firm
representing a client before his board, in violation of the rules of
professional conduct, and that the situation resulted in an appearance
of impropriety. The judge reads the rules of professional conduct as if they were an ethics code, not a criminal law.<br>
<br>
The court determined that the two board members and the board attorney
should have been disqualified and that, therefore, the appellants did
not receive the process to which they were due. It ordered that a new
zoning board of appeals hearing be scheduled, with alternate members
sitting in the place of the two disqualified members.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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