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Indirect Interests and Freedom of Speech
Wednesday, March 10th, 2010
Robert Wechsler
An unpublished Connecticut Superior Court
opinion takes an odd approach to a conflict of interest charge against
a member
of a zoning commission in the small town of Pomfret (pop. 4,000). Not
only is it odd, but it could very well be unconstitutional, as it
partly bases
its decision on whether individuals have spoken out for or against a
matter before the zoning commission. My thanks go to Patricia Salkin,
who
wrote about the decision in her excellent Law of the Land blog and
sent me a copy of the decision.
In the case of Dooley v. Planning & Zoning Commission of Pomfret (CT Superior Court, judicial district of Tolland, June 16, 2009), the plaintiff was seeking to void a P&Z decision because one of the commission members' in-laws lived next to the property with respect to which the commission granted a permit to extract gravel.
CT General Statutes §8-11 states, "No member of any zoning commission or board ... shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense."
The court in Timber Trails Associates v. Planning & Zoning Commission, 99 Conn.App. 768, 775, 916 A.2d 99 (2007) concluded that "If a zoning authority member fails to disqualify himself despite a conflict of interest, the action of the authority in which he participates is invalid."
That's pretty tough, tougher than the City Ethics Model Code, which only calls for the voiding of contracts or transactions based on an ethics code violation.
The Dooley court looked at two other CT cases. In Thorne v. Zoning Commission, 178 Conn. 198, 204-05, 423 A.2d 861 (1979), the court voided a zoning change where the board's chair had actually acted on his parents' and sister's behalf as abutting landowners by presenting a petition to the zoning board of appeals. Nothing like that in the Dooley case.
In Frusciami v, Zoning Board of Appeals (Superior Court, judicial district of Middlesex, Docket No. 6082, April 7, 1992, Higgins, J.) (6 Conn. L. Rptr. 298, 300), a zoning board member's father-in-law, also an abutting landowner, had "expressed concern or opposition [to the board member] with regard to the plaintiff's renovation work," thereby causing the court to invalidate the board's denial of a variance.
The Dooley court found that there was no evidence that the board member in Dooley had been active in the matter outside the zoning commission, nor "that the [in-laws] have expressed any opinion on CT Real Estate's special permit application to [the board member] or to anyone else and, therefore, that there was not a personal interest so as to warrant the board member's disqualification."
The implication here is that evidence must be presented that a relative actually expressed an opinion, to the related zoning commission member or anyone else, for the zoning commission member to be considered to have a personal interest. This not only seems illogical and hard to prove, if the expression was private. But such a decision chills the speech of such a relative who, if he or she knows the law, will feel compelled to keep silent about his position on a public issue in order to protect his board member-relative's ability to participate in the matter.
If a commission member has an indirect interest in a matter, what is said by the person with the direct interest, and to whom it is said, should not be relevant. The interest exists or it does not. The commission member-relative is in the same position either way, damned by the public if he or she seems to vote to protect the relative, and damned by the relative if he or she votes against the relative's interest. The public and the commission member-relative should be protected from the commission member's participation in the matter, even if the relative says nothing about the matter. The existence of a conflict should have nothing to do with the relative's exercise of his or her freedom of speech.
Robert Wechsler
Director of Research-Retired, City Ethics
---
In the case of Dooley v. Planning & Zoning Commission of Pomfret (CT Superior Court, judicial district of Tolland, June 16, 2009), the plaintiff was seeking to void a P&Z decision because one of the commission members' in-laws lived next to the property with respect to which the commission granted a permit to extract gravel.
CT General Statutes §8-11 states, "No member of any zoning commission or board ... shall participate in the hearing or decision of the board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense."
The court in Timber Trails Associates v. Planning & Zoning Commission, 99 Conn.App. 768, 775, 916 A.2d 99 (2007) concluded that "If a zoning authority member fails to disqualify himself despite a conflict of interest, the action of the authority in which he participates is invalid."
That's pretty tough, tougher than the City Ethics Model Code, which only calls for the voiding of contracts or transactions based on an ethics code violation.
The Dooley court looked at two other CT cases. In Thorne v. Zoning Commission, 178 Conn. 198, 204-05, 423 A.2d 861 (1979), the court voided a zoning change where the board's chair had actually acted on his parents' and sister's behalf as abutting landowners by presenting a petition to the zoning board of appeals. Nothing like that in the Dooley case.
In Frusciami v, Zoning Board of Appeals (Superior Court, judicial district of Middlesex, Docket No. 6082, April 7, 1992, Higgins, J.) (6 Conn. L. Rptr. 298, 300), a zoning board member's father-in-law, also an abutting landowner, had "expressed concern or opposition [to the board member] with regard to the plaintiff's renovation work," thereby causing the court to invalidate the board's denial of a variance.
The Dooley court found that there was no evidence that the board member in Dooley had been active in the matter outside the zoning commission, nor "that the [in-laws] have expressed any opinion on CT Real Estate's special permit application to [the board member] or to anyone else and, therefore, that there was not a personal interest so as to warrant the board member's disqualification."
The implication here is that evidence must be presented that a relative actually expressed an opinion, to the related zoning commission member or anyone else, for the zoning commission member to be considered to have a personal interest. This not only seems illogical and hard to prove, if the expression was private. But such a decision chills the speech of such a relative who, if he or she knows the law, will feel compelled to keep silent about his position on a public issue in order to protect his board member-relative's ability to participate in the matter.
If a commission member has an indirect interest in a matter, what is said by the person with the direct interest, and to whom it is said, should not be relevant. The interest exists or it does not. The commission member-relative is in the same position either way, damned by the public if he or she seems to vote to protect the relative, and damned by the relative if he or she votes against the relative's interest. The public and the commission member-relative should be protected from the commission member's participation in the matter, even if the relative says nothing about the matter. The existence of a conflict should have nothing to do with the relative's exercise of his or her freedom of speech.
Robert Wechsler
Director of Research-Retired, City Ethics
---
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