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Thread: Ex parte contact?

  1. #1
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    Ex parte contact?

    Would it be considered ex parte contact to meet with someone who might in the future be planning to apply for a zoning variance, to discuss their plans for the property?

    I was contacted by someone today to do so, I assume because I am chairperson of our planning commission, although that reason was never mentioned in the invitation. "We just want to show you what we are doing and could use your brain." The thing that makes this small-townish is that this is from a neighbor and friend of mine, and involves an empty public school building to be used in a commercial manner in an area zoned residential. They have not brought it before the Planning Commission to be re-zoned.

    I'm not comfortable with meeting to discuss this as I feel it is improper to do so, but because such a situation has never come up in all the years I've been on the PC I'm not 100% sure what I should do.

    Any advice?

  2. #2
    Cyburbian otterpop's avatar
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    Quote Originally posted by dmalewski View post
    Would it be considered ex parte contact to meet with someone who might in the future be planning to apply for a zoning variance, to discuss their plans for the property?

    I was contacted by someone today to do so, I assume because I am chairperson of our planning commission, although that reason was never mentioned in the invitation. "We just want to show you what we are doing and could use your brain." The thing that makes this small-townish is that this is from a neighbor and friend of mine, and involves an empty public school building to be used in a commercial manner in an area zoned residential. They have not brought it before the Planning Commission to be re-zoned.

    I'm not comfortable with meeting to discuss this as I feel it is improper to do so, but because such a situation has never come up in all the years I've been on the PC I'm not 100% sure what I should do.

    Any advice?
    Is your planning commission the deciding body or an advisory body to the governing body? That matters in defining whether you would be acting in a quasi-judicial position in the future regarding this person's business.

    That said, if it doesn't feel right to you, then you should go with that feeling. While it is possible that the person is really trying to get your opinion, it is more than likely he is trying to create a friendlier relationship with you or make you an ally. You might have to recuse yourself when the matter comes before your board, or at the very least, explain your contact with the applicant at the hearing so it is all out in the open.

    If you want to split legal hairs, until he actually has an application in play your communication is not ex parte. For example, our county commissioners often speak with citizens who are interested in developing their land prior to actually turning in an application. Until then, these people are are citizens communicating with their elected officials. As soon as that application is in then the commissioners will not communicate with that person until after review has completed and a decision has been made. We have an appendix in our subdivision regs that lays out our ex parte policy.
    "I am very good at reading women, but I get into trouble for using the Braille method."

    ~ Otterpop ~

  3. #3
    Cyburbian Masswich's avatar
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    I agree- if you're not comfortable with it, don't do it. Its always safer. This doesn't on the surface sound like any violation of ex parte communications but every state is different. Even in bigger places it can be hard to separate your "wise neighbor" hat from your "planning commission" hat.

  4. #4
    Cyburbian The One's avatar
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    Nope....

    Quote Originally posted by otterpop View post

    If you want to split legal hairs, until he actually has an application in play your communication is not ex parte. For example, our county commissioners often speak with citizens who are interested in developing their land prior to actually turning in an application. Until then, these people are are citizens communicating with their elected officials. As soon as that application is in then the commissioners will not communicate with that person until after review has completed and a decision has been made. We have an appendix in our subdivision regs that lays out our ex parte policy.
    I don't think there are any hairs to split here. If there is no application, they are only talking about an idea...and the last time I checked, it wasn't un-ethical to discuss ideas with the public. I would however disclose that we had a discussion about the topic before there was an application to avoid the appearance of impropriety.

    While I was working with a developer, we'd meet with Council members before the application was submitted to get an idea of what was important to them. As a staff member for a local government, it drives me nuts to find out a developer met with an elected official without staff present to "discuss" some aspect of a future project.
    Skilled Adoxographer

  5. #5
    Cyburbian otterpop's avatar
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    Quote Originally posted by The One View post
    I don't think there are any hairs to split here. If there is no application, they are only talking about an idea...and the last time I checked, it wasn't un-ethical to discuss ideas with the public. I would however disclose that we had a discussion about the topic before there was an application to avoid the appearance of impropriety.

    While I was working with a developer, we'd meet with Council members before the application was submitted to get an idea of what was important to them. As a staff member for a local government, it drives me nuts to find out a developer met with an elected official without staff present to "discuss" some aspect of a future project.
    Nor was I talking about ethical or unethical behavior. I was pointing out that it is not ex parte, unless an application is in play and the commission member will be acting in a quasi-judicial role. Those are two factors that determine whether it is ex parte communication in my county. I also followed up my point with an example.

    In my county, planning staff, appointed volunter board members and the governing body cannot avoid conversations with future applicants about their projects. We run into these people outside of work or they come to us in the course of our jobs. So long as the application has not been turned in, board members and the governing body can speak to them. We encourage full disclosure of past communication between applicants and board members and the governing body just to stay on the straight and narrow.

    It is an unfortunate reality that those of us in government have to act in a timely manner, and we do not always have the luxury of time to be perfect in everything we say, write or do. But those who do not like the outcome of the governing body's actions can hire lawyers who will take months or even years to pick apart everything that was said, written, not said, not written, done or not done. This is but one reason why we should try to stay in the light and on the straight and narrow.
    "I am very good at reading women, but I get into trouble for using the Braille method."

    ~ Otterpop ~

  6. #6
    Cyburbian Plus Whose Yur Planner's avatar
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    The way I've always treated is once an application has been filed, there shouldn't be any conversationsbetween the pc/bza until after the decision has been made. As staff, we are free to discuss it, but the others are not. If it does happen, the member should disclose the contact when the case it called up. They don't have to recuse themselves, but need to acknowledge the contact. During the training session's I've conducted, I've advised them that meeting people at church, store, restaurant, etc is unvoidable. They should direct the person to staff if they have any questions/concerns.

    I've liked it to be involved in a law suit. If the other party tried to talk to the judge outside of the hearing and without you being there, you would pixxed. I've also warned about doing anything that might get the decision reviewed by a court.
    When did I go from Luke Skywalker to Obi-Wan Kenobi?

  7. #7
    Cyburbian Otis's avatar
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    In our fair state ex parte communications aren't banned. We are required to ask commissioners at the beginning of a hearing whether they have had any ex parte communications. They have to disclose them, describe the substance of the communication, and give people a chance to rebut the substance of the communication. Also at the beginning of the hearing we are required to ask if anyone objects to the participation of any commissioner. If there is an objection, based for instance on ex parte communication, the commissioner states whether he or she can make a fair decision. If there is doubt the commission gets to decide whether the commissioner can participate in the hearing. Often the wise choice for the commissioner and whoever he or she had the ex parte communication with is for the commissioner to step down. That removes an automatic appeal ground.

    What you describe sounds like it could well be within the coverage of ex parte communication. While there is no application pending it is about a specific site and a specific project that is likely to come before you. You always should err on the side of assuming it is an ex parte communication and disclose it.
    Seldom right, never in doubt

  8. #8
    Cyburbian mike gurnee's avatar
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    I recently read a Senville article on this in an older issue of Planning Commissioners Journal. He found that most commissioners like the ability to say "I can't talk about this outside of the hearing'. I agree that you cannot stop people from talking to each other; and I encourage full disclosure during the hearing. But this article got me thinking that a prohibition on ex parte talk is a way for commissioners to get out of sticky situations.

  9. #9
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    Thanks!

    Thanks for all the info and advice regarding my situation. I've spoken to our Mayor, and he feels it's ok for me to attend this meeting, so I probably will, especially with the info presented here to further substantiate that opinion.

    The meeting is to "schmooze" me, the mayor agreed. But the issue is still between the school system and the city, and until they bring it before the planning commission there is absolutely nothing I can do to help them. I do plan on paying for my own breakfast and to report the meeting at our next planning commission meeting.

    Thanks for all your help!

  10. #10
    Super Moderator luckless pedestrian's avatar
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    wait, aren't we supposed to be meeting with people on their property as professional planners? I meet with people all the itme to discuss potential for their properties - it helps them to know before they make up their full application to know what they are up against

    what'd I miss - is this person a commissioner?

  11. #11
    Cyburbian mike gurnee's avatar
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    ...because I am chairperson of our planning commission...

  12. #12
    Super Moderator luckless pedestrian's avatar
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    oh I get it - okay, yeah, you can't talk to them...

  13. #13
    NIMBY asshatterer Plus Richmond Jake's avatar
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    Quote Originally posted by luckless pedestrian View post
    ..... you can't talk to them...
    I disagree. The commissioner can talk to the developer especially since an application is not pending. If the commissioner feels uncomfortable at public hearing time, simply disclose the contact. Ex parte communication is not illegal or unethical if it's disclosed.
    RJ is the KING of . The One

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