Advising Quasi-judges: Bias, Conflicts of Interest, Prejudgment, and Ex Parte Contacts

• Publication year: 2004
• Pages: 69

33 Colo.Law. 69 Colorado Lawyer 2004.

2004, March, Pg. 69. Advising Quasi-Judges: Bias, Conflicts of Interest, Prejudgment, And Ex Parte Contacts

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69

Vol. 33, No. 3, Pg. 69

The Colorado Lawyer
March 2004
Vol. 33, No. 3 [Page 69]

Specialty Law Columns
Government and Administrative Law News
Advising Quasi-Judges: Bias, Conflicts of Interest Prejudgment, And Ex Parte Contacts
by Gerald E. Dahl

This column provides information to attorneys dealing with various state and federal administrative agencies, as well as attorneys representing public or private clients in the areas of municipal, county, and school or special district law

Column Editors

Carolynne C. White of the Colorado Municipal League - (303) 831-6411, cwhite@cml.org; Brad Bailey, Assistant City Attorney, City of Littleton - (303) 795-3725, bbailey@littletongov.org; Tiffanie Bleau, Denver, an attorney with Light, Harrington & Dawes, P.C. - (303) 298-1601, tbleau@lhdlaw.com.

Gerald E. Dahl

About The Author:

This month's article was written by Gerald E. Dahl, a partner with Gorsuch Kirgis LLP - (303) 376-5000, gdahl@ gorsuch.com.

This article identifies the nature of certain due process pitfalls facing quasi-judicial decision-making bodies, including bias, conflicts of interest, prejudgment, and ex parte contacts. Suggestions are made to deal effectively with these problems to ensure a fair, impartial, and defendable decision.

Local government attorneys often face the challenge of guiding elected and appointed decision-making bodies when they act in a "quasi-judicial" capacity. These bodies typically comprise town and city councils, boards of county commissioners, planning commissions, and boards of adjustment. Their members ("quasi-judges") are usually unpaid volunteers (for planning commissions and boards of adjustment), or elected officials (for town or city councils and boards of county commissioners). Quasi-judges are also referred to in this article as "board members."

Quasi-judges generally have no judicial background and little government experience. Nonetheless, they are expected to act with much of the same formality and dignity as judges when deciding quasi-judicial matters.

This article addresses some of the practical aspects of advising quasi-judges. It discusses how bias, conflict of interest, prejudgment, and ex parte contact problems should be resolved prior to the hearing. Also covered are situations where board members engaging in those contacts must recuse themselves.

Explanation of
Quasi-Judicial Actions

The first task of the local government attorney is to determine whether the matter to be considered is quasi-judicial, rather than administrative or legislative. The due process and deliberative protections discussed in this article apply only if the matter is quasi-judicial.

Administrative matters involve day-to-day decisions, such as approving contracts, hiring staff, and setting utility rates. Legislative matters affect large areas (such as multiple parcels of property) or set broad policy directives. Examples of legislative matters include adoption of an entire or general amendment to a land use code, comprehensive plan, leash law, or general parking ordinance.

By contrast, quasi-judicial actions apply general rules to a specific interest, such as a zoning change affecting a single piece of property, a variance, or a conditional or special use permit. Rezonings in Colorado are quasi-judicial.1 They constitute one of the largest categories of such actions considered by local government decision-making bodies. Other quasi-judicial matters include historic preservation district permits, conditional and special use permits, and variances.2

Quasi-judicial actions have three characteristics. They involve a state or local law that: (1) requires that notice be given before the action is taken; (2) requires that a hearing be conducted before the action is taken; and (3) directs that the action results from application of prescribed criteria (such as criteria for rezoning found in local zoning regulations) to the individual facts of the case.3

Throughout the quasi-judicial process, counsel must ensure that all due process requirements are properly met. Notice required by any state statute and applicable local regulations must be given. Further, an adequate right to present evidence and cross-examine witnesses must be provided to the applicant or landowner whose interest is the subject of the hearing.

Bias and Conflict
Of Interest

Colorado law contains a presumption that quasi-judicial hearings are conducted impartially.4 This presumption can be overcome by evidence of actual bias or conflict of interest that creates an appearance of impropriety.5

At the local level, particularly in small communities, it is common for members of the decision-making body to personally know the applicant and opponent and, perhaps, have pre-existing relationships with them. However, by itself, this does not create a bias, prejudgment, or conflict of interest sufficient to exclude members from the decision. It is necessary to review any local charter, ordinance, or land use regulation governing conflicts of interest. The attorney must look to state law for guidance on conflict-of-interest matters.

Standards of Conduct

In 1988, the General Assembly enacted a comprehensive code of ethics for both state and local government officials, entitled "Standards of Conduct" (hereafter, "Standards").6 The Standards establish recommended guidelines, as well as mandatory rules of conduct. The Standards also prohibit public officials or employees from performing

an official act directly [such as voting to approve] and substantially affecting to its economic benefit a business or other undertaking in which he either has a substantial financial interest or is engaged as counsel, consultant, representative, or agent.7

The Standards address circumstances where a member of a governing body of a local government has a "personal or private interest" in any matter proposed or pending before the governing body. Such board members must: (1) disclose the interest; (2) not vote on the matter; and (3) refrain from attempting to influence the...