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HomeMy WebLinkAbout02-25-2000 Follow-up ref: Ex Parte Communications/Quasi-judicial ProceedingsLAW OFFICES AMARI & THERIAC, .P.A. Richard S. Amari Nicholas B. Bangos* Kohn Bennett Bradly Roger Bettin, Sr. Anthony A. Garganese Mitchell S. Goldman J. Wesley Howze Matthew J. Monaghan Mark S. Peters David M. Presnick Charles R. Steinberg James S. Theriac, III *Admitted AL, FL ♦Board Certified City, County, & Local Government Law Attorneys and Counselors At Law Reply To: Cocoa P.O. Box February 25, 2000 The Honorable Mayor Paul P. Partyka and Members of the City Commission of the City of Winter Springs 1126 E. State Road 434 Winter Springs, Florida 32708 Re: Follow-up re: Ex Parte Communications/Quasi judicial Proceedings Dear Mayor Partyka and City Commission: Mariner Square 96 Willard Street, Suite 302 P.O. Box 1807 Cocoa, Florida 32923-1807 Telephone (321) 639-1320 Fax (321) 639-6690 Imperial Plaza Suite B104 6769 N. Wickham Road Melbourne, Florida 32940 Telephone (321) 259-6611 Fax (321) 259-6624 At the last City Commission meeting on February 21, 2000, I was asked whether ex-parte communications on a quasi-judicial matter before the Commission are "illegal." Although I said technically they are not, I cautioned the Commission about engaging in such communications. Because time did not permit me to elaborate on this issue, I wish to do so now so that my comments are fully understood and so the City Commission can be better informed about an area of law which could present many potential pitfalls for the City. The potential pitfalls most often arise during quasi-judicial hearings held by the City Commission when considering the approval of land development permits.' BRIEF REVIEW OF JENNINGS V. DADE COUNTY The effect of ex-parte communications on quasi-judicial hearings in Florida was thoroughly discussed in Jennings v. Dade County, 589 So.2d 1337 (Fla. 3rd DCA 1991), rev. denied, 598 So.2d 75 (Fla. 1992). In Jennings, the Third District Court of Appeals held: Quasi-judicial matters include, but are not limited to, site -specific rezonings, variances, conditional use permits (special exceptions), special permits, plat approvals, and code enforcement actions. Mayor Partyka and City Commission February 25, 2000 Page 2 Ex parte communications are inherently improper and are anathema to quasi- judicial proceedings. Quasi-judicial officers should avoid all such contacts where they are identifiable.... Me hold that the allegation of prejudice resulting from ex parte contacts with the decision makers in a quasi-judicial proceeding states a cause of action.... Upon the aggrieved party's proof that an ex parte contact occurred, its effect is presumed to be prejudicial unless the defendant proves the contrary by competent evidence. (emphasis added) 589 So.2d 1341. As a result of Jennings, the overwhelming majority of local government attorneys have advised their respective quasi-judicial boards (e.g. City Commission, Code Enforcement Board) to avoid all contacts with any interested party who could conceivably appear before the board - in the foreseeable future - at a quasi-judicial hearing. Many prudent attorneys also have advised board members to refrain from conducting "Site Visits"z because board members might see something which could influence their vote on an issue at a quasi-judicial hearing. Generally, if that something is not included in the record of the meeting, the board member would be voting based on evidence not on the record and an adversarial party (disagreeing with the board's decision) could bring, at a minimum, a circuit court action to over -turn the board's decision. Consequently, as a result of Jennings, the "bottom line" has been a board member's quasi-judicial vote should be based solely on the evidence presented by interested parties at a particular quasi-judicial hearing. If a board member relies on evidence which is not presented at the hearing (i.e. ex parte communications), a due process violation may be brought against the board - unless the board can prove the communication was not, in fact, prejudicial. A due process violation will entitle, at a minimum, an aggrieved party to a new and complete hearing before the board. ENTER THE FLORIDA LEGISLATURE AND SECTION 286.0115 F.S. On June 17, 1995, the Committee Substitute for House Bill No. 5 became effective without the Governor's signature, thereby creating Section 286.0115, Florida Statutes ("Section 286.0115"). As you may be aware, Section 286.0115 affects quasi-judicial proceedings and authorizes a local government to adopt an ordinance or resolution which removes the presumption of prejudice from an ex parte communication by a quasi-judicial board member - providing the local government establishes a method of disclosing such communication at a 2 "Site Visits" are when a quasi-judicial board member individually and intentionally visits a site, which is the subject matter of a quasi-judicial hearing (i.e. a parcel of land which is being considered for a rezoning). Mayor Partyka and City Commission February 25, 2000 Page 3 quasi-judicial hearing. Section 286.0115 gives a municipality a way to amend the Jennings' Rule - somewhat. As indicated above, a mere discussion between a quasi-judicial board member and an interested party outside the quasi-judicial hearing (regarding an issue to be determined by the board) is presumed prejudicial. Section 286.0115 provides an optional mechanism by which a municipality can adopt - by ordinance or resolution - certain disclosure procedures to remove the presumption of prejudice from ex -pane communications. Section 286.0115 does not, however, guarantee that an ex parte communication will never be deemed prejudicial; in fact, only the presumption of prejudice is removed, provided the board member discloses the ex parte communication prior to the board's decision. Therefore, there may be instances when an adversely affected party could prove that an ex parte communication has prejudiced a board's decision - even if the communication is properly disclosed. Consequently, Section 286.0115 does not eliminate the possibility that a board's decision could be over -turned because of the occurrence of an ex parte communication. If a City adopts such an ordinance or resolution, the following actions by quasi-judicial board members will not be presumed to be prejudicial: 1. Ex parte communications between board members and interested parties which relate to quasi-judicial actions pending before the board, if the subject of the communication and the identity of the person, group or entity with whom the communication took place is disclosed and made part of the record before a final decision is made; 2. Reading Written communications received from interested parties before the quasi- judicial hearing (e.g. memos, mail, studies, and reports), if the written communication is made part of the record before the final decision is made by the board; 3. Investigations and site visits conducted by board members prior to the quasi-judicial hearing, if the existence of the investigation and site visit is made part of the record before the final decision of the board; and 4. Consulting with Experts prior to the quasi-judicial hearing, if the existence of the consultation is made part of the record before the final decision is made by the board. Section 286.0115 requires that disclosure must be made before or during the quasi-judicial meeting at which the vote is taken by the quasi-judicial board. The disclosure must be made in such a fashion as to provide an interested party a reasonable opportunity to refute or respond to any ex parte communication. Mayor Partyka and City Commission February 25, 2000 Page 4 If a City opts into Section 286.0115, I can imagine instances where a quasi-judicial board will have to delay a final decision on an application, to a subsequent meeting, in order to provide an interested party the opportunity to study and respond to an ex pane communication, which was disclosed by a board member at the quasi-judicial hearing. For instance, an applicant requests a rezoning from a City and a major issue of concern regarding the rezoning involves the potential adverse effects on wetlands and the environment. The applicant provides evidence that the rezoning (and the underlying permitted land uses) will not adversely affect the wetlands or the environment. On the other hand, a board member, who conducted a private investigation prior to the hearing because of public dissent regarding the request, discloses a 25 page environmental study he received from a citizen opposing the rezoning (an ex parte communication). The citizen's study is completely contrary to the applicant's study and states the rezoning will adversely effect the wetlands and the environment. Further, the other board members seem to be influenced by the citizen's study and appear ready to deny the applicant's rezoning request because of it. Under this scenario, shouldn't the applicant be given sufficient time to read the study and rebut any of its findings, if possible, before the board makes its final decision? Would due process be best served if the board delayed making a decision until a subsequent meeting? I suggest the answer to both these questions is "yes." CONCERNS Any City that chooses to adopt an ordinance or resolution to opt into Section 286.0115 must be cautious and should be aware of the following concerns: I. Guidelines for insuring due process must be formalized to: (i) disclose ex parte communications and provide a reasonable opportunity for interested parties to refute or respond to ex parte communications; and (ii) provide interested parties an opportunity to be heard, present evidence, cross-examine or confront adverse witnesses; 2. Quasi-judicial board members must still abide by other provisions of the "Sunshine Law". For instance, although a board member could participate in ex parte communications if their City opts into Section 286.0115, the following rules would still be applicable: a. The board shall not delegate decision making authority to a certain board member, who, then, would participate in ex parte communications with interested parties for the sake of deciding a particular matter to come before the board; b. Board members shall not utilize ex parte communications as a means of communicating with other fellow board member - especially to determine how Mayor Partyka and City Commission February 25, 2000 Page 5 other board members will vote on a particular issue; c. Board members shall not conduct ex parte communications with, or in the presence of, other fellow board members; and d. Each board members must serve as an impartial and unbiased decision maker (remember, every quasi-judicial board member is suppose to be like a judge); therefore, board members should not make a final decision on any application until he or she has weighed all the evidence presented at the quasi-judicial hearing. 3. Section 286.0115 may be unconstitutional, and therefore, if unconstitutional, ex parte communications would still be presumed prejudicial, improper and an anathema to quasi-judicial proceedings, even if a City opts into its provisions. As such, an ex parte communication could be presumed to be a violation of due process. The unconstitutional argument goes generally like this: the ex parte rule is a constitutional rule supported by the Due Process Clause of the Florida and United States Constitutions, and the Florida legislature does not have the authority to amend or abolish a constitutional rule by adopting a statute. ISSUE TO BE DECIDED BY COMMISSION When Section 286.0115 was adopted by the Florida Legislature, it left each city and county commission with this choice: Whether the city wants to opt into Section 286.0115 and allow quasi-judicial board members to participate in ex parte communications under the parameters of the statute, or whether the city desires to continue under the Jennings Rule which states a quasi-judicial board member should avoid participating in ex parte communications. If a City chooses to opt into Section 286.0115, that City will need to adopt an ordinance or resolution declaring its intent to do so; plus, the City will need to develop and adopt comprehensive rules to implement Section 286.0115 to insure interested parties receive minimal due process at quasi-judicial hearings. Further, Section 286.0115 provides that local boards or committees are not restricted from establishing rules or procedures governing public hearings or contacts with local public officials. This wording implies that it is possible that some City quasi-judicial boards could operate under Section 286.0115 and others under the Jennines Rule. Mayor Partyka and City Commission February 25, 2000 Page 6 FINAL THOUGHT Underneath the legal jargon, the fundamental reason why ex parte communications are relevant to a quasi-judicial proceeding is rather simple: a quasi-judicial hearing should afford all interested parties a right to a fair and impartial hearing. Decisions must be made based upon competent substantial evidence presented at the hearing. Board of County Commissioners v. Snyder, 627 So. 2d 469 (Fla. 1993). Would a person receive a fair and impartial quasi-judicial hearing if adverse parties are permitted to politic, present evidence to, and influence decision makers prior to, and outside of, the public hearing? In a court of law, parties are prohibited from speaking to, and influencing, the judge, prior to, and outside of, a hearing or trial. Why should the rules be different for quasi-judicial decision makers if they are suppose to act like judges and afford due process when making decisions? If you have any questions concerning the foregoing, please do not hesitate to contact me. ;ity Attorney AAG Enclosure (s. 286.0115, F.S.) cc: Ron McLemore, City Manager FL ST s 286.0115 West's F.S.A. § 286.0115 Page 1 WEST'S FLORIDA STATUTES ANNOTATED TITLE XIX. PUBLIC BUSINESS CHAPTER 286. PUBLIC BUSINESS; MISCELLANEOUS PROVISIONS Copr. © West Group 1999. All rights reserved. Current through End of 1999 1st Reg. Sess. 286.0115. Access to local public officials; quasi-judicial proceedings on local government land use matters (1)(a) A county or municipality may adopt an ordinance or resolution removing the presumption of prejudice from ex parte communications with local public officials by establishing a process to disclose ex parte communications with such officials pursuant to this subsection or by adopting an alternative process for such disclosure. However, this subsection does not require a county or municipality to adopt any ordinance or resolution establishing a disclosure process. (b) As used in this subsection, the term "local public official" means any elected or appointed public official holding a county or municipal office who recommends or takes quasi-judicial action as a member of a board or commission. The term does not include a member of the board or commission of any state agency or authority. (c) Any person not otherwise prohibited by statute, charter provision, or ordinance may discuss with any local public official the merits of any matter on which action may be taken by any board or commission on which the local public official is a member. If adopted by county or municipal ordinance or resolution, adherence to the following procedures shall remove the presumption of prejudice arising from ex parte communications with local public officials. 1. The substance of any ex parte communication with a local public official which relates to quasi-judicial action pending before the official is not presumed prejudicial to the action if the subject of the communication and the identity of the person, group, or entity with whom the communication took place is disclosed and made a part of the record before final action on the matter. 2. A local public official may read a written communication from any person. However, a written communication that relates to quasi-judicial action pending before a local public official shall not be presumed prejudicial to the action, and such written communication shall be made a part of the record before final action on the matter. 3. Local public officials may conduct investigations and site visits and may receive expert opinions regarding quasi-judicial action pending before them. Such activities shall not be presumed prejudicial to the action if the existence of the investigation, site visit, or expert opinion is made a part of the record before final action on the matter. 4. Disclosure made pursuant to subparagraphs 1., 2., and 3. must be made before or during the public meeting at which a vote is taken on such matters, so that persons who have opinions contrary to those expressed in the ex parte communication are given a reasonable opportunity to refute or respond to the communication. This subsection does not subject local public officials to part III of chapter 112 for not complying with this paragraph. (2)(a) Notwithstanding the provisions of subsection (1), a county or municipality may adopt an ordinance or resolution establishing the procedures and provisions of this subsection for quasi-judicial proceedings on local government land use matters. The ordinance or resolution shall provide procedures and provisions identical to this subsection. However, this subsection does not require a county or municipality to adopt such an ordinance or resolution. Copr. © West 2000 No Claim to Orig. U.S. Govt. Works FL ST s 286.0115 Page 2 (b) In a quasi-judicial proceeding on local government land use matters, a person who appears before the decisionmaking body who is not a party or party- intervenor shall be allowed to testify before the decisionmaking body, subject to control by the decisionmaking body, and may be requested to respond to questions from the decisionmaking body, but need not be sworn as a witness, is not required to be subject to cross-examination, and is not required to be qualified as an expert witness. The decisionmaking body shall assign weight and credibility to such testimony as it deems appropriate. A party or party- intervenor in a quasi-judicial proceeding on local government land use matters, upon request by another party or party -intervenor, shall be sworn as a witness, shall be subject to cross-examination by other parties or party -intervenors, and shall be required to be qualified as an expert witness, as appropriate. (c) In a quasi-judicial proceeding on local government land use matters, a person may not be precluded from communicating directly with a member of the decisionmaking body by application of ex parte communication prohibitions. Disclosure of such communications by a member of the decisionmaking body is not required, and such nondisclosure shall not be presumed prejudicial to the decision of the decisionmaking body. All decisions of the decisionmaking body in a quasi-judicial proceeding on local government land use matters must be supported by substantial, competent evidence in the record pertinent to the proceeding, irrespective of such communications. (3) This section does not restrict the authority of any board or commission to establish rules or procedures governing public hearings or contacts with local public officials. CREDIT(S) 1999 Main Volume Added by Laws 1995, c. 95-352. § 1, eff. June 17, 1995. Amended by Laws 1996, c. 96-324 31, eff. Oct. 1, 1996. <General Materials (GM) - References, Annotations, or Tables > HISTORICAL AND STATUTORY NOTES 1999 Main Volume Laws 1996, c. 96-324, § 31, eff. Oct. 1, 1996, in the section heading, added a reference to quasi-judicial proceedings on local government land use matters; deleted the former subsection headings; in subsec. (1), substituted references to this subsection for references to this section throughout, and redesignated the former subsection as par. (a); redesignated former subsec. (2) as par. (b) of subsec. (1); redesignated former subsec. (3) as par. (c) of subsec. (1), changed the former paragraph designations to subparagraph designations, and made corresponding internal citation changes in subpar. 4.; inserted subsec. (2), relating to quasi-judicial proceedings on local government land use matters; and renumbered former subsec. (4) as subsec. (3). Preamble (Laws 1995, c. 95-352): "WHEREAS, government in Florida is conducted in the sunshine pursuant to chapter 286, Florida Statutes, and "WHEREAS, the public should be able to voice its opinions to local elected public officials, and "WHEREAS, elected and public officials are presumed to perform their duties in a lawful and proper manner, and "WHEREAS, quasi-judicial decisionmaking must be based on competent, substantial evidence of record, and "WHEREAS, local elected public officials have been obstructed or impeded from the fair and effective discharge Copr. © West 2000 No Claim to Orig. U.S. Govt. Works y FL ST s 286.0115 Page 3 of their sworn duties and responsibilities due to expansive interpretations of Jennings v. Dade County, a decision rendered by the Third District Court of Appeal, and "WHEREAS, Section 5, Article I of the State Constitution gives the people the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances, NOW, THEREFORE." LIBRARY REFERENCES 1999 Main Volume Counties «21.5. Eminent Domain t=2(1.2). Health and Environment 25.5(4). Municipal Corporations «57. Officers and Public Employees <9;= 103. Zoning and Planning G= 1. WESTLAW Topic Nos. 104, 148, 199, 268, 283, 414. "MV < < C.J.S. Counties § 40. C.J.S. Health and Environment §§ 91, 130, 132. C.J.S. Municipal Corporations § 106. C.J.S. Officers and Public Employees §§ 190-196. C.J.S. Zoning and Land Planning §§ 2, 5-7, 17-18, 24. West's F. S. A. § 286.0115 FL ST § 286.0115 END OF DOCUMENT Copr. © West 2000 No Claim to Orig. U.S. Govt. Works