Ex parte contact occurs,“when a board member communicates, directly or indirectly, in connection with a matter before the board, with any person or party, except upon notice and opportunity for all parties to participate.” LDMG Corp. v. Webster County Board of Adjustment, 674 N.W.2d 684 (Iowa Court of Appeals 2003).
Due process requires every party involved in a case the same opportunity to present facts to the decision-making body. Boards and commissions are supposed to base their decisions on information presented in public meetings and hearings. This way all parties are fully aware of the facts and no one gains an advantage through private conversations.
All members of a planning commission, board of adjustment, city council, or county board of supervisors have the right to hear everything that is said about the case. Everyone, including the applicant, and those who support or oppose a particular application also have the right to hear everything that is said about the case. Private conversations outside of public meetings undermine this open exchange and fair play. Nothing is more frustrating for the losing party than to have the impression that the other side prevailed through the use of “back door” politics.
Avoiding ex party communication is good practice for all local government officials, but it is especially important officials engaged in quasi-judicial decision making. Members of quasi-judicial governmental bodies, like the board of adjustment, are always prohibited from having ex parte communication with interested parties. In Iowa, courts have also found that city council members are sometimes held to that standard in rezoning cases.
However, the law recognizes that it is simply impossible to avoid all contacts on all questions coming before the decision-making body. Board and commission members are appointed precisely because of their involvement in the community and understanding of the issues. It would be an unrealistic standard to meet if every ex parte contact resulted in disqualification of the board member or nullification of the action.
If such contact has taken place three steps should be taken by the board member to avoid giving rise to a legally-actionable claim:
- End the communication. Explain to the individual that you cannot talk about matters currently before the board outside the public meeting.
- At the hearing, disclose on the record the fact that the communication took place and share any substantive information that you may have received during the course of the contact.
- Indicate on the record whether or not the communication has left you unable to base the decision solely on the evidence to be presented at the hearing.
If you are unable to do so, you must recuse yourself from the proceedings. It is not sufficient to participate in the discussions and merely abstain from voting; nor is it appropriate to keep silent and abstain but remain seated at the board table.
Remember, the prejudicial effect of an ex parte contact is in the fact that the other side is not given an opportunity to respond or is unaware of the contact altogether. Ex parte contacts, unless they lead to an incurable bias in the decision-maker, are not detrimental to the proceedings if they are disclosed and the other side is given an opportunity to respond.