Imagine you’re in your town’s grocery store trying to select some cheeses for your dinner party later that day. You hear a familiar voice approaching you from behind, and you turn to see a fellow commissioner. You exchange pleasantries. Then she starts talking about a matter that’s pending before your commission, trying to convince you to vote against the application.

The hearing on the case is over, and your commission just needs to make a decision at its next meeting. You start to get uncomfortable with the conversation. Politely, you tell her you really have to go, taking both cheeses with you.

Over dinner that evening where another commissioner is your guest, you talk about your cheese-counter conversation in hypothetical terms, and your commissioner-guest relates non-hypothetically that he’s been approached by the other commissioner, and that she’s tried to convince him to deny the application too.

Is it wrong to “lobby” a fellow commissioner?

Is it wrong to “lobby” a fellow commissioner? I got to thinking about this issue while reading a colleague’s blog about how appellate court judges communicate with each other. They typically decide cases as a group rather than as the individuals who preside over trials, so in some ways they’re like a planning commission — multiple people with different perspectives deciding upon a single matter. My friend’s blog talked about a scholarly article on this question, and about the merits of judges lobbying one another out of the public eye. ¹

There’s nothing wrong with this practice as it applies to appellate courts, at least from an ethical standpoint. It’s not a violation of the Judicial Code of Conduct, and books about the U.S. Supreme Court recount stories of the justices trading draft opinions or calling on each other in chambers in an effort to gain votes on their side.

But planning commissions are not exactly like appellate court panels, so how does this apply to you as a commissioner? A couple things come to mind. First, my state’s right-to-know law says that it’s a violation for a quorum of a board to meet without prior notice, except for “chance social encounters” (like the cheese-counter incident). Yet once you start deliberately talking about pending cases, even an impromptu gathering of a quorum likely would be considered a meeting of the commission. But unless you have a three-member planning board, two members chatting about a case wouldn’t constitute a quorum requiring prior public notice.

There’s a difference between what happens inside the public meeting room and outside of it.

The harder question concerns the influence that commissioners may have on one another. Certainly, in a public meeting the purpose of deliberations is to influence each other and to hash things out. Sometimes you can reach consensus and render a unanimous decision, and sometimes you can’t and have dissenting views. That’s the way it’s supposed to work. But there’s a difference between what happens inside the public meeting room and outside of it.

And that brings us to the prohibition against ex parte communications. From a commissioner’s perspective, ex parte communications typically involve contacts between a commissioner and a party with an interest in a matter, outside of the public arena. Among other reasons, ex parte communications are improper because one commissioner is receiving information that the others and the public won’t also have. So it would be if at the cheese counter you were approached by an abutter in the case, as opposed to a fellow commissioner. But commissioners aren’t interested parties — you’re supposed to be disinterested in the case before you, meaning that you don’t have a personal stake in the matter.

And that gets to the heart of the question. As a commissioner, you’re much more like a juror than a judge. In fact, my state’s law specifically says that the impartiality of planning board and zoning board members is to be based on the juror standard (though this is interpreted a bit loosely). Outside of the public forum, you really shouldn’t be having conversations with others — including fellow commissioners — about matters before the commission, where the commission is reviewing something in its regulatory capacity. ²

In the commission’s other roles, as a planning or legislative body, it’s generally acceptable for you as a commissioner to engage in outside discussions; in fact, it may be an important means of educating yourself about the opinions and values of those in your community. But where you’re dealing with an application for a permit, you’ve entered a different realm. There, you’re dealing directly with important principles of constitutional law. To the extent possible, you must keep yourself free of outside influences that are not openly applied to everyone. To conduct yourself otherwise may infringe on an interested party’s right to due process of law, a question of fundamental fairness.

So don’t just walk away with the cheese. Calmly tell your fellow commissioner that as much as you’d like to, you just can’t have the conversation about the pending case and explain to her the vital constitutional principles at stake.

Ben Frost is the Director of Public Affairs at New Hampshire Housing, where he coordinates federal and state legislative initiatives and provides direct technical assistance to municipalities to help them develop regulations promoting affordable housing and sustainable development. He frequently lectures on issues of affordable and workforce housing, planning and zoning law, and ethics.

Ben has over 25 years of experience as a land use planner, and over 15 years as an attorney. Previously, he was a Senior Planner with the NH Office of Energy and Planning, he was the executive director of the Upper Valley Lake Sunapee Regional Planning Commission, and he was also a planner and administrator in local and regional government in New Hampshire and elsewhere.

Ben is also past chairman of the Municipal Section of the New Hampshire Bar Association and is a founding director of the NH Municipal Lawyers Association. He serves as the Treasurer of the NH Planners Association and as the Professional Development Officer of the Northern New England Chapter of the American Planning Association. Ben holds B.A. and M.A. degrees in Geography from Colgate University and Syracuse University, respectively and a law degree from Cornell Law School. He lives in Warner, NH, where he serves on the planning board.