making local government more ethical

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 recent blog post, as well as the absolute immunity given to the Philadelphia ethics board due to its quasi-judicial activities in another recent blog post.

But the only mention of an ethics law relating to quasi-judicial activities is in a comment to another recent blog post. 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.

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.

A new North Carolina land use blog, NC Legal Landscapes, by land use attorney Tom Terrell, has a new post 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)):
    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.
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.

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.

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?

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.

Robert Wechsler
Director of Research, City Ethics