LEGAL BRIEFING: Avoiding Due Process/Bias Problems When Making Quasi-Judicial Decisions Michele Beal Bagneris, City Attorney Theresa E. Fuentes, Assistant City Attorney September 25, 2017

What is a “quasi-judicial” decision? When city ordinance requires administrative hearing to take testimony and apply a standard or rule to an individual set of facts (sometimes also called “adjudicative” act). Decision makers act like judges applying rules to facts and evidence, rather than as legislators making policy decisions (“legislative” act). Most common example: land use permits

Avoiding due process problems Fair treatment of those similarly situated Reasonable advance notice Usually governed by ordinance or law Reasonable opportunity to be heard Opportunity to raise all issues (ok to limit time or reopen hearing) Impartial decision-makers Paying attention Reviewed evidence (including reviewing material if absent at a prior proceeding)

Receipt of Information Outside Hearing When decision makers (ie., city council members) receive information outside hearing, the communication should be publicly disclosed Receipt of correspondence by a member prior to or during the public hearing should be promptly given to the City Clerk Meeting with the applicant is not encouraged, but can occur; however, must disclose the general substance of such discussions on the record

Avoiding bias Distinguished from conflict of interest (financial) Impartiality, unaffected by personal embroilment Fair hearing Disclose “ex parte” (outside of hearing) contacts and facts in sufficient detail so all parties can respond and all decision-makers have the same information Avoid commitment during ex-parte contact Reach conclusion/make findings based on evidence in the record

Example: PPR process Predevelopment Plan Review (PMC 17.60.040) Inform Council and public of projects of communitywide significance Only purpose is information, and not to discuss the merits Tips: Pay attention and ask questions/raise issues Do not state opinion or position Disclose contacts (if any)

Avoid Due Process/Bias Problems In Quasi-Judicial Decisions Questions??