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Ethics & the Planning Commission

Revisiting Ex Parte Contacts

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Over the last fifteen years, I have continued to conduct numerous planning commission training sessions at the local, state, and national level. I always discuss ex parte contacts with commissioners and it is striking how almost universal their reaction is against allowing them. Perhaps I am just preaching to the choir at planning commissioner workshops, but there appears to be a very broad recognition that ex parte contacts are potentially damaging to the process.

... Public interest in planning and development decisions has increased as development pressures in many places have continued to mount. At the same time, local governments have become more sophisticated in planning for and regulating growth. As many of us realize, development decisions are being made under increasingly intense scrutiny. This often includes a focus on the fairness of the process.

Quite simply, in my opinion, ex parte contacts are a bad idea and ought to be avoided.

secret conversation illustration

I say this not so much for legal reasons as for "good government" reasons. Let me be clear: some lawyers will argue that ex parte contacts do not create legal problems. Some will even argue that when planning commissions are providing advice to elected officials on matters such as zoning map amendments, they are acting in a "legislative" and not a "quasi-judicial" capacity, and that ex parte prohibitions do not necessarily apply.

My concern is not so much with the legality of ex parte contacts in this situation -- that is for your legal counsel to address -- but with how the public is likely to perceive such contacts even if they are legally permissible.

My concern is not so much with the legality of ex parte contacts in this situation -- that is for your legal counsel to address -- but with how the public is likely to perceive such contacts even if they are legally permissible.

I urge you to apply what I refer to as the "reasonable person" test. Imagine a person attending a planning commission meeting who has not already made up their mind about a project on the agenda, who is not connected to local government, and who is not part of either an applicant or an opponent group. Then imagine that person learning that private discussions had been held between individual members of the planning commission and either those promoting or opposing the proposed development. Very simply, is the reaction of that hypothetical, reasonable person likely to be positive or negative?

When I ask this question at planning commission workshops around the country, the response is always the same -- ex parte contacts are likely to create suspicion in the minds of the average citizen.

End of Excerpt

photo of Greg DaleC. Gregory Dale, FAICP, is a founding Principal with McBride Dale Clarion, the Cincinnati affiliate office of Clarion Associates. He has managed planning projects throughout the country, and is also a frequent speaker at planning and zoning workshops and conferences.

Between 1991 and 2009, Dale authored 31 articles for the Planning Commissioners Journal, including 21 for our Ethics & the Planning Commission series, and others on a variety of transportation and zoning topics. Dale is also a co-author of The Planning Commissioners Guide (American Planning Association, 2013).

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