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We all like to be “in the know.” There are few things quite as aggravating as feeling like you’re the last person to know what’s going on and being “on the outside looking in.” That’s especially true when as a citizen you’re trying to find out what’s happening on a proposed development project that may affect your community, or possibly even your own home or business.

Yet, that’s what can happen when our government’s decision-making processes give the appearance, real or imagined, of being either one-sided or impartial, and full due process is not provided for.

Ex parte is Latin meaning “from or on one side only, with the other side absent or unrepresented.”  In a democratic society, open, fair decision making is critical to whether the public trusts what the government is doing. In planning circles, ex parte, or one-sided communications, are usually problematic, either legally, ethically, or both, particularly when it involves a quasi-judicial action such as is often the case with variances or special use permits.

For example, imagine a defendant in court, prior to the start of his trial, finding out the opposing attorney had dinner with the presiding judge and discussed your case with him. Oh, and by the way, your close friend, who by happenstance was sitting at the table next to them, overheard the judge say “yep, and I think he’s guilty, too.”  How about that for a fair trial?  Get the jail cell and orange jumpsuit ready … Most people (particularly the defendant) would be outraged at such a breach of fairness and ethics, not to mention the law.

Now think about the applicability of this principle in the world of planning. A variance or special use permit is typically considered a quasi-judicial action, where a planning commission, zoning board, and/or city council often sit as judges ruling on a specific case and the applicability of facts to it. To help ensure proper due process is given to all parties, they need to hear all the facts equally and openly, as do those who may be opponents, proponents, or just interested by-standers of the matter at hand.

The best advice is for commissioners to avoid ex-parte communications or information completely. In the event some new information is given to you on a case, it must be disclosed openly during the process as soon as possible. It is also best practice for planning commissions and city councils to have a policy in place that addresses how ex-parte communications are to be handled.

Now there is a difference between quasi-judicial and legislative decision-making, which typically has a broader tolerance for how information is obtained.  On especially hot topics, planning commissioners or city council members are often bombarded with phone calls, letters, people catching them at the grocery store or hitting them up at their grandkids baseball game, each giving good reasons why a project should be approved or rejected. However, even though there may be more allowance given to how information is gathered in legislative actions as opposed to quasi-judicial ones, there still exists this whole idea of fairness that is essential to not only making good decisions but also giving the appearance of it. An action doesn’t have to be illegal to be ill-advised.

Here’s an example, and probably not a too far-fetched one, involving a planning commissioner and an upcoming vote on a project:

“You arrive at a regular planning commission meeting and are approached by a fellow PC member. He tells you that due to new information he has recently received from a neighborhood group opposing the special use permit for a nightclub near their homes, he is going to vote no on the project that evening. He admits that although the public hearing hasn’t been held yet, he has already made his decision, and he thinks you should vote no on the project, too.”

As a planning commission member, what should you do?  How would you respond to your colleague? What ethical problems exist in this case, if any? …

End of excerpt

Ted Shekell is the long-time Community Development Director for the City of O’Fallon, Illinois. Ted regularly participates in training sessions on a range of topics, including ethical concerns.

Editor’s note: I had the pleasure of spending some time with Ted in 2007 during my cross-country trip on U.S. Route 50. I reported on O’Fallon in the following posts: A Small Town State of Mind; The Creekside Development; and Introductions.

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