Tuesday, May 24, 2011

Blind Justice

People in many professions face the occupational hazard of being asked for free advice, and lawyers are no exception. I’m usually asked about (1) wills and divorce (people in my demographic), or (2) landlord-tenant law (my college students).

Law question category (3) lately has been “appearance of fairness.” Maybe I just attend unusually dull parties, but it seems like quite a few people have suddenly acquired a burning interest in that topic. The Gateway Pacific Terminal/Cherry Point project is, of course, the reason.

For those who share this interest, one source of information is a publication called The Appearance of Fairness Doctrine in Washington State, published by the Municipal Research and Services Center of Washington (here’s the link). What follows is a summary of the positions on the law taken by that document. In other words, the following discussion does not provide legal advice or create an attorney client privilege.

What is “Appearance of Fairness”? It’s a legal doctrine, partly created in court cases and partly written down in a statute (chapter 42.36 RCW), that is intended to “instill and maintain confidence in the fairness of government proceedings.”* It is “intended to protect against actual bias, prejudice, improper influence, or favoritism. It is also aimed at curbing conditions that create suspicion, misinterpretation, prejudgment, partiality, and conflicts of interest.”

What does “Fairness” Mean? It means that hearings are supposed to be fair and that decision makers are supposed to be free of bias. Local land use decisions have been invalidated when “[h]earings appeared unfair or public officials with apparently improper motives failed to disqualify themselves from the decision-making process.”

What are “Improper Motives”? The state supreme court has identified three major categories of bias: personal interest, prejudgment of issues, and partiality.

  • “Personal interest” means that the decision-maker stands to gain or lose from the decision because of a monetary interest, property ownership, employment, or other sufficiently “entangling” interest.
  • “Prejudgment of issues” means that a decision-maker is close minded, and has reached an inalterable conclusion, before hearing testimony.
  • “Partiality” is the existence of hostility or favoritism.

What is an unfair hearing? If “biased” decision makers (with personal interest, prejudgment, or partiality) do not disqualify themselves, the hearing would not meet the “appearance of fairness.”

There is another aspect of “fairness.” By state statute, decision-makers are prohibited from “ex parte contacts” – in other words, “one-sided discussions” outside the formal hearing process – with project “proponents or opponents.” If they have such discussions, they are required to disclose the conversations, to place the substance of the communication on record, and to announce the substance of the communication at each hearing about the matter and to allow involved parties to rebut the substance. If these requirements are not met, the hearing would not meet the “appearance of fairness.”

When does “appearance of fairness” apply? This is a multipart answer.

(1) It applies only to “quasi-judicial” land use matters. That means that the decision-makers are applying general land use rules to a specific project. MRSC states:

  • “The following types of land use matters meet this definition: subdivisions, preliminary plat approvals, conditional use permits, SEPA appeals, rezones of specific parcels of property, variances, and other types of discretionary zoning permits if a hearing must be held.
  • The statutory doctrine does not apply to the following actions: adoption, amendment, or revision of comprehensive plans• adoption of area-wide zoning ordinances • adoption of area-wide zoning amendments • building permit denial.”

This means that there are stricter rules about, say, shoreline substantial development permits (quasi-judicial) than about amendment of a comprehensive plan (legislative).

(2) Appearance of fairness applies to council members, planning commissioners, hearing examiners, and other local decision-making bodies. It does not apply to planning staff, department heads, or other officials who are not part of decision-making bodies.

(3) There is an exception for elections, although the scope of that exception hasn’t been tested. Candidates for office may talk about quasi-judicial matters and may accept campaign contributions. As the MRSC report notes, however:

“For instance, although RCW 42.36.040 permits candidates to express opinions on pending quasi-judicial matters, if opinion statements made during a campaign reflect an intractable attitude or bias that continues into the post-election hearing process, a court might determine that the right to a fair hearing has been impaired, even if no statutes were violated.”

(4) The statutory part of the doctrine – the prohibition against ex parte contacts – only applies once an application has been submitted. The more general prohibition against bias, however, would not be subject to the same time constraints.

So, hypothetically speaking:

Say a candidate for office talked to public officials about a quasi-judicial matter during the campaign. If the candidate is elected and becomes a decision-maker on the matter, campaign speech would not violate the appearance of fairness statute. The open question would be whether those discussions reflected an “intractable attitude or bias” in favor of or against the project. If so, the right to a fair hearing might have been violated.

Say that an elected official proposes a resolution in support of a project before a hearing has been held on the project. That action could show “prejudgment” or “partiality,” and the official may need to disqualify himself from the vote in order to avoid an appearance of fairness violation.

Say that no application has been submitted yet, but there is a significant land use issue that the whole community knows about and has started to debate. Because no application has been submitted, can’t decision-makers talk to anybody they want to and attend any information sessions that they want to?

Until the application has been submitted, there would be no violation of the prohibition against “ex parte contacts.” So decision-makers would not have to disclose their discussions, or their attendance at meetings, under the “ex parte contacts” part of the law.

The larger issue, though, is whether decision-makers will be accused of having made up their minds under the “bias” tests. When information relating to all sides of a project is presented, perhaps prejudgment or partiality would not be a problem. On the other hand, what if one side did a better job than the other? What if the decision-maker asks a question, or is overheard making a statement, that is perceived as showing bias?

Under these circumstances, I don’t envy decision-makers who are weighing their desire to interact with constituents against the state law mandate that they must not decide about projects before formal hearings are held.

*All quotes are from the MRSC Report.


  1. Good and important information. Thanks

  2. Jean - Apparently County Council members have been advised by Karen Frakes in the COunty Prosecutor's office that they should make NO comment at all about the proposed SSA Marine project, by virtue of rcw 42.36.060, which concerns ex-parte communications. This seems to me to be a misreading of the statute to the detriment of democratic process.

    I'm a cpa, not a lawyer, so I'd really appreciate a chat with you on this topic.

  3. It is quite thorny, isn't it? On the one hand, candidates, while campaigning, should communicate enough to voters so we know if they share our values. Yet, those "values" can later be called "bias" or "prejudgment."

  4. I have spoken over the passt three years with a number of attorneys familiar with state law in this area. Like many, I am frustrated by the apparent favoring of ignorance over information; that is, the Council members cannot even hear information with an open mind, to help them make a better-informed decision on this critical issue.

    Every attorney I spoke with felt that the Prosecutor's Office is going very overboard in its interpretation of what is or is not permissible. It certainly makes life easier for the Prosecutors Office if no-one says or hears anything, as that precludes any liability whatsoever, unless intentional ignorance is found liable. However, it means that our public servants are not able to serve the public interest in holding conversations--with both sides, though proponents seem somehow magically able to circumvent what is an ironclad rule for opponents. When I specifically asked if it would hold any risk of disqualification, were a Council member to voice the opinion that "Given the information I have heard to date, this project seems like a bad (or good) idea," the answer has been, no, every time. It is okay to state your current understanding when you make clear that you are open to new information which could change your opinion. And it is okay to listen to concerns about the project, as long as there is a reasonable parity of access offered to both sides.

    THis is one of the most critical issues to ever confront our Council and our comunity; it is frustrating beyond belief that Council members are being unnecessarily constrained from doing their jobs by decisions that seem based more on what is expedient for the Prosecutor, rather than what is the legally-appropriate counsel for the situation.