Ex Parte Contact, Recusal, and the Right to a Fair Hearing

Residents who want to influence a land use decision often reach for the obvious move: contact the decision-makers directly. Applicants do the same. Both are operating in an area with real rules, and the rules are not the same for every kind of decision.

Getting this wrong rarely produces a scandal. It produces something quieter and worse for whoever did it: a decision that has to be disclosed, explained, or in the extreme case redone.

Two kinds of decision, two sets of expectations

Local bodies do two different things. Sometimes they legislate, adopting policy of general application such as an ordinance or a general plan amendment. Sometimes they adjudicate, applying existing rules to one application on one parcel.

Lobbying is ordinary and expected on legislative matters. Elected and appointed officials are supposed to hear from the community about policy, and a resident writing to a council member about a proposed ordinance is participating exactly as intended.

Adjudicative matters are different. When a body decides one permit for one applicant, it is acting more like a tribunal, and the participants have a due process interest in a decision made on the record after a fair hearing rather than in private conversations beforehand.

What ex parte contact means

An ex parte contact is communication with a decision-maker about a pending matter outside the hearing, without the other participants present. A phone call, an email, a conversation at the market, a site visit arranged by one side.

The usual practice is disclosure rather than prohibition. A commissioner or council member who has had a contact discloses it at the hearing, describes what was communicated, and states that the decision will rest on the record. That disclosure puts the substance into the open where others can respond.

Failure to disclose is the real hazard. An undisclosed contact that surfaces later damages the credibility of a decision even when its substance was harmless.

Bias, and the appearance of it

A decision-maker who has publicly committed to an outcome before hearing the evidence has a problem on an adjudicative matter. So does one with a personal stake, a close relationship to a participant, or a financial interest.

California also has specific conflict of interest requirements addressing financial interests of public officials, including property interests near a project. Those rules are technical, they change, and they are enforced. An official with any question about them consults counsel rather than judging for themselves.

The practical upshot for residents is that a decision-maker who declines to discuss a pending application with you is usually following the rules, not brushing you off. Redirect the effort into the record, where it counts.

Recusal, and what it does

Recusal is a decision-maker stepping aside from a matter. Done properly, it is stated on the record with the reason, and the official leaves the discussion rather than sitting silently through it.

It changes the arithmetic. A smaller body loses a vote, and depending on quorum and majority requirements a recusal can make an approval harder to obtain than a denial, or occasionally prevent a decision entirely and force a continuance.

It is worth noting that recusal is not an admission of wrongdoing. It is the mechanism working. The problem case is the official who should have recused and did not.

What this means for how you participate

• Put substance in writing, to the record. Correspondence submitted to the file reaches every decision-maker and cannot be characterized later as a private conversation.
• Say the same thing publicly that you would say privately. If an argument only works in a hallway, it is not an argument the decision can rest on.
• Speak at the hearing. Testimony is part of the record. The steps are covered in the planning commission for beginners.
• Aim at the findings. A decision-maker can act on an argument that a required finding cannot be made. They cannot act on a private assurance.
• Do not treat a disclosure as evidence of bad faith. Disclosure is the system working correctly.

The applicant side of the same rules

Applicants face the mirror image. A developer with regular access to officials may feel that is an advantage, and on legislative matters it partly is. On an individual application it creates exposure, because a decision reached after extensive private contact with one side is exactly the decision an opponent will attack.

Experienced applicants therefore tend to route substance through staff and through the written record, and to treat pre-hearing meetings as informational rather than persuasive. It is slower and it produces a sturdier approval.

The same logic applies to community outreach. Meeting neighbors before a hearing is good practice and is often encouraged. Summarize those meetings in writing to the file so the content is visible to everyone rather than existing only in the memory of whoever attended.

Why it matters on appeal

Procedural fairness is one of the things a reviewing court will look at. A decision reached after undisclosed private contact, or made by a body including a member who should not have participated, is more vulnerable than the same decision reached cleanly.

That is a reason for everyone to prefer the open path, including the side that wants the project approved. A weakly protected approval is worth less than a well-protected one, and the difference shows up later, in the process described in appealing a planning decision.

The practical takeaway

On policy, advocate freely. On an individual application, put it in the record, say it in public, and expect officials to be careful about private contact. That caution is protecting the decision you are trying to influence.

Verify disclosure and conflict requirements against current state law and local rules, with counsel where a real question exists. General descriptions do not bind anyone; the statutes and the adopted procedures do.

Begin at our City Development hub for the wider system, then read how to read a public notice so you know a hearing is coming in time to participate.

Anthony Grynchal has been licensed in California since November 2009.