95-21556 Reso
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RESOLUTION NO. 95-21556
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA APPROVING
PROCEDURES FOR CONDUCfING QUASI-JUDICIAL
HEARINGS.
WHEREAS, the City of Miami Beach City Commission, Planning Board, Board of
Adjustment, Design Review Board, and Historic Preservation Board conduct quasi-judicial hearings
on site specific applications for development approval; and
WHEREAS, quasi-judicial hearings must be conducted in a manner that accords due process
to all parties; and
WHEREAS, judicial authorities detennined that off-the-record communications between
interested persons and members of quasi-judicial boards are improper; and
WHEREAS, the City Commission of the City of Miami Beach desires to adopt rules of
procedure to govern the conduct of quasi-judicial hearings.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA:
Section I:
The Quasi-Judicial Procedures which are attached as Appendix 1 are approved as the
procedures for the conduct of hearings before all boards of the City.
Section 2:
PASSED and ADOPTED this
This Resolution shall take effect immediately at
ArrEST:
1L~ ~.. \S.vr--
ITY CLERK
.::quuijud...
FORM APPROVED
Lepl Dept.
By -:r-c..;>
Date 'f. 1\. a.~-
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OFFICE OF THE CITY ATTORNEY
~~ tlJIdomi 1JelUA
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CITY ATTORNEY
POBOX 0
MIAMI BEACH, FLORIDA 331 '9-2032
TELEPHONE 1305} 673-7470
TELECOPY (305) 673-7002
LAURENCE FEINGOLD
COMMISSION MEMORANDUM No..3.l.La::9.-5
RE:
MAYOR SEYMOUR GELBER
MEMBERS OF THE CITY 2 OM SION
LAURENCE FEINGOLD
CITYATIO~EY ~
QUASI-JUDICIAL PROCEDURES
TO:
FROM:
DATE:
APRIL 19. 1995
Our office has prepared quasi-judicial procedures which we recommend that the City
Commission adopt for all City Boards. The Planing Board, Board of Adjustment, Design Review
Board, Historic Preservation Board and at times, the City Commission, sit in a quasi-judicial
capacity when hearing site-specific development applications. These hearings include both de novo
hearings and appeals heard on matters as provided in the Zoning Ordinance. It is essential that these
hearings are held in a fair and impartial manner on the merits of the application. To further this goal,
we have prepared the attached procedures to guide these Boards.
In addition, recent judicial authority bas held that ex-parte communication is presumptively
prejudicial to a party, as recently expressed in Jennin~s v. Dade County. 589 So. 2d 1337 (Fla 3d
DCA 1991). The attached procedures also provide guides to assure that improper ex-parte
communication does not occur.
RECOMMEND A nON
The office of the City Attorney recommends the adoption of these Quasi-Judicial Procedures
to be used in the review of all site-specific development applications.
LF:jm
Enclosure
l::m:quajud.CDIIl
AGENDA
ITEM
OATE
1700 CONVENTION CENTER DRIVE - FOURTH FLOOR - MIAMI BEACH. FLORIDA 33139
QUASI-JUDICIAL PROCEDURES
I. Purpose
It is the purpose of these roles to provide a fair, open and impartial procedure for the
consideration by members of the City Commission, the Board of Adjustment, Planning
Board, Design Review Board, and Historic Preservation Board of quasi-judicial matters in
the course of quasi-judicial proceedings.
II. Definitions
A. Applicant - an individual , corporation or other authorized legal entity filing an
application or an appeal which initiates a quasi-judicial proceeding, including City
staff and the City Commission and Boards.
B. Application (matter) - an application for a site-specific land use plan amendment,
rezoning, variance, conditional use permit, design review approval, or other request
for a quasi-judicial proceeding or appeal as authorized by the City's Zoning
Ordinance.
C. City Staff - an employee of the City of Miami Beach.
D. Ex-parte communication - any written or oral communication with members which
may directly or indirectly influence the disposition of an application, other than those
made on the record during a pubic hearing.
E. Member - a City Commissioner or a member of the Board of Adjustment, Planning
Board, Design Review Board or Historic Preservation Board.
m. Ex-Parte Communication
Members are prohibited from discussing matters with applicants. interested parties, lobbyists,
other members or any other third party.
A. Written communications - all written communications received by a member relevant
to a pending matter shall be turned over to the Secretary or Clerk of the Board, and
the Office of the City Attorney, entered into the official file and transmitted to the
applicant. The communication shall also be disclosed at the next public hearing on
the matter.
B. Oral Communications - when a member determines that an oral communication
relates to a pending matter, the member shall immediately tenninate the
communication. The member shall reduce any conversation to writing, identifying
the party, date, time, place and content of the conversation, and transmit the
APPENDIX 1
infonnation to the Secretary or Clerk of the Board, the Office of the City Attorney,
and the applicant. The communication sball also be'disclosed at the next public
hearing on the matter.
C. Communication with City staff-members may discuss matters with City staff for the
purpose of clarifying procedures relating to any hearing.
D. View of Property - members may visit sites which are the subject of a pending
matter. However, communications with applicants, owners, surrounding property
owners, or third parties are prohibited.
IV. Quasi-Judicial Proceedings
A. Legal Representation -
1. Applicants - Applicants may be represented by legal counsel.
2. Board _ the Board or City Commission shall be represented by the City
Attorney's Office.
3. Staff - staff may be represented by outside counsel when appearing before the
Board or City Commission during an appeal of any matter or when appe8rlng
as an applicant.
B. Participants at Hearings
All who testify on any matter must sign in and be sworn by the presiding
officer. All persons testifying subject themselves to cross-examination.
Each person, other than salaried members of City staff, who address the
Board shall give the following information.
(a) Name;
(b) Address;
(c) Whether they speak for themselves, a group of persons, or a
third party; if the person says that they represent an organization, they
shall also indicate whether the view expressed by the speaker
represents an established policy of the organization approved by the
board or governing counsel; and
(d) Whether there is compensation by the persons or persons on
2
whose behalf they speak; and
(e) Whether they or any member of their immediate family has
a personal financial interest in the pending matter.
C. Conduct of Hearini - the order of hearing shall be as follows:
1. The Chair shall read a preliminary statement once at the beginning of the
quasi-judicial public hearing agenda, announce the particular agenda item,
and open the public hearing. The Chair shall conduct the meeting and all
questions shall be through the Chair.
2. The applicant, witnesses, staff, and all participants asking to speak shall be
sworn excluding attorneys, unless they testify.
3. The Board shall decide any parliamentary objections and objections to
evidentiary matters with the advice of the City Attorney.
4. The staff shall present its report, offer it into evidence, and have it made part
of the record. .
5. The applicant shall present its case.
6. Participants in support of the application shall present their testimony and any
evidence.
7. Opposition shall have the right to cross-examine individual speakers.
8. The Board may ask questions of any speaker.
After the presentation in favor of the matter, the hearing shall proceed as follows:
9. Participants in opposition to the application shall present their testimony and
evidence.
10. The Applicant shall have the right to cross-examine individual speakers.
11. The Board may ask questions of any speaker.
12. Rebuttal by staff, if requested. Staff shall be subject to cross-examination.
13. Any other member of the public may testify and present evidence, and are
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subject to cross-examination.
14. Rebuttal by the Applicant, ifany.
IS. The Chair closes the public hearing. The Board shall discuss the matter and
render a decision (no further presentations or testimony shall be pennitted).
Following the final disposition of the application, all evidence admitted at the
hearing, the application file, all staff reports, and the adopted order
promulgating the decision of the Commission shall be maintained in a
separate file constituting the record of the application. The record shall be
kept in the custody of the appropriate staff at all times during the pendency
of the application. The record will be made available to the public for
inspection upon request at any time during nonnal business hours. All quasi-
judicial hearings shall be recorded. A court reporter may be retained and
paid for by any person to take down the proceedings. Any person may order
and pay for a transcript of the proceedings. Any such retained court reporter
shall identify himselflherself to the clerk.
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LA OPINIONS DIV.
TEL:904-922-3969
Oct 19.94
~;::l1 NU.UUl ;.,,~
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STATE OF FLORIDA
OPJ'JOS o. ~aJf.T 0..._10
ROBBBT A. BUTTBSWORTS
94-71
August: 19. 1994
Tbe Honorable Truman O. Scarborough, Jr.
Chairman, Brevard County Commission
400 South Street
First Floor, suite lA ..
Titusville. Florida 32780-7698
Dear.commi~sioner Scarborough:
On behalf of the Brevard County Board of County commissionere,
you ask .ubst~ntially the following questione:
1. If a county commissioner engages in ex parte
communication regarding a rezoning. must he or
she abstain fro~ participating ~n the rezoning
proceeding and/or disclose the communication on
t.he record?
2" Is viewing the property for which rezoning has
been requested an eX parte communication?
3. Maya board of county commissioners review a
request to rezone county-owned property in order
to bring the property into compliance with the
county's comprehensive plan. without violating a
legal or echical constraint?
4" If so, are conferences with planning and zoning
staff outside the review proceeding considered ex
parte communicat~on.?
5" Are conferenc~s wit.h staff of the city department
initiating the rezoning request considered ex parte
communicat.ions?
6. Does consideration of a county-initiated rezoning
request for county-owned property create a conflict
of interest under section 112.3143, Florida Statutes?
LA OPINIONS DIV.
TEL:904-922-3969
Oct 19.94
t:$:":J~ ~U.UV1 I........,
94- 71
The Honorable Truman G. scarborOugh. Jr.
._g. TwO
In 8UII\ t
1. Proof of an ex parte communication cre.te. a
re~utt.ble pre.umption that a decision 1a prejudiced"
However, nothing require8 _ county commi..ioner who ha.
engaged in an ex parte communication to abstain from
voting on a request for rezoning or to disclos. such
communication on the record.
2. Vi.wing the subject property would not be ex parte
communication, if there 1s no communication between one
of the parties anq the county commissioner. .
3. A county commission is not precluded from reviewing
rezoning requests for county-owned property in order to
bring euch property intO compliance with the county's .
comprehenslveplan. Such determinations with findings
of fact and a record of the proceedings, however.
would be subject to judicial review.
4. While discussions between the county commission and
t~e planning and zoning staff would not automatically
mandate reversal of the commission'S rezoning decision.
any allegation of prejudice resulting from ex parte .
communications in a quasi-judicial proceeding would be
groundS for judicial review. In order to assure
fairness to all parties. any communicatiOD with the
planning and zoning staff ahould be docUlllented and
placed oD the record in order for all partie. to have
an opportunity to respond.
5. In light of the involvement of staff me~rs of
a department .requesting a zoning change in the
proceedings. contact with the staff outside the quasi-
judicial proceeding could result in an allegation of
. ex parte communication. Such communication, therefore.
.hould. be d.ieclo.ed to all interested parties and .
placed on the record during the proceeding to allow
such parties to x:.espond.
6. The de~er1l\ination of whether consideration of a
county-initiated rezoning request for county-owned
property would constitute a conflict of intereat in
violation of section 112.3143, Florida Sta~utes. is
~ithin the jurisdiction of the Florida commission on
..d.
TEL:904-922-39&9
Oct 19.94
8:~j NO.UUl r.v"
_A OPINIONS DIV.
The Honorable Truman G. Scarborough, Jr.
page Three
94-71
Eth~c.. It would appear. however, that the prohibition
1n section 112.3143, Florida Statut.., relat.. to thoa.'
inetance. where the vote of a public officer would
r..ult in a. -special private gain- to .uch officer
and would not prohibit the consideration of rezoning
county-owned property.
QUAA~i..nn nn.e
In light of the decisions
nadl!!! C^unt:.y' and
a
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the que.tion has arisen whether a county commissioner who
participates in ex parte communication regarding the rezoning
of property must recuse himself from voting on the issue or make
the ex parte communication known on che record. In ~enn1n9.,
the Third pi.trict Court of Appeal decermined that proof of an
ex parte communication by a quasi-judicial officer"create. a
rebuttable presumption of prejudice unless proven otherwise
by competent evidence by the officer. Subeequently, the Fifth
District Court of Appeal. in s~yder. determined that considera-
tion of a rezoning request is quasi-judicial in nature and
require. appropriate due procesa to the party reque.ting the
rezoning.' Taken together, these cases en sur. that the landowner
will receive due. process in a proceeding for the rezoning of
private property.-
In J_nn1ngs, the court considered the effect of an ex parte
communication upon a decision by a county commiesion in a qua8i-
judicial proceeding upholding the granting of a zoning variance.
It was alleged that prior to the commission'S action, a lobbyist
for the peti~ioning party, registered a. required by a county
ordinance, engaged in ex parte communications with .orne or all
of the county commi8sioners. In rejecting the county's conten-
tion that an ex parte communication doe. not deny due process
where the substance of ~he communication wae di.coverable by
the complaining party in time to rebut it on. the record. the
court concluded that.~he allegation of prejudice resulting from'
ex parte con~act with the decision-makers in a quasi-judicial
proceeding state. a cause of action.
The court stated that upon proof that an ex parte communication
has occurred, there is a presumption of prejudice. The burden is
then placed upon the party ~ho initiated ~he ex parte communica-
tion to show that no prejudice resulted from the contact.- Thus,
the county commission should adhere to procedures tha~ guarantee
a -fair. open and impartial hearing.-
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.R OPINIONS OIV.
TEL:904-922-3969
Oct 19.94
tj:::>,) NO.VVl r ...,oJ
94-71
The Hono~able Truman G. scarborough, Jr.
Page Four
1 am not aware of, nor have you dlr~cted my attention to. any
statutory provision that requires a co~i8.ion meeber to recu..
himaelf or berself from .. proceeding in which the member has
engaged in ex parte coftllllunications. While there is no statute
that direct8 -a commie.ion ~mber to di8close an e~ part~com-
municatlon, it would be advisable to place the e~istence'.nd
content of such communication on the record. and to allow the
aggrieved party the opportunity for rebuttal.' such measure.
would appear to provide due process protection for any party who
bas been presumptivelY prejudiced by the ex parte communication.
Inherent in the prohibition against -ex parte- communlcation
i_ communication between the decision-maker in a judicial or
qua.i~judicial proceeding and one of the parties in tbe prO-
cee~ng.'While the independent viewing of subject property
by a commissioner may be outside tbe quasi-judicial proceeding,
it doe8 not appear that such action would constitute an ex parte
communication tbat would create a presumption of prejudice.
{)tIes!":" t)ft Two
The county commis.ion is the body posse..ing the authority to
review the rezoning of property within the county." AnY zoning
or rezoning by the county commi..ion, however, must conform witb
tbe county's c~prehen.ive plan.' This would appear to have
equal. application to county-owned property.' Thus. the county
commission would be bound to review the request for rezoning of
its own property in order to bring sucb property intO compliance
with the county'. comprehensive plan.
While generally a governmental unit'. proper~y i. no~ subject
to ite own zoning regulations when the governmental unit 1s
acting in a goVerntnental capaci~y," i~ has been rec09t\izec1 1Jy
the S\lpreme Court of Florida that
zoning variations to accommodate county or municipal
facility purpo8e~ should either bave been anticipated
in zoning ordinances before construction or operation
of such facilities i. commenced or, if this has
not been done, construct iQn should not be under-
taken thereof until after due modification or change
therefor is made in existing zoning ordinances."
Accordingly, it would appear that the county commission would
properlY review a request for the rezoning of county-owned
property in order to bring it into compliance with the county'.
comprehensive plan.
cn.t~At: i 01'\ Thre..&
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LA OPINIONS DIV.
TEL:904-922-39&9
Oct 19.94
8:54 NO.UUl
r.vU
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94-11
The Honorable Truman G. scarborough, Jr-
.ag- rive
A8 reflecte4 in the court'. discussion in ~"ningA, -(elx parte
communication. are inherently improper and are anathema to quaei-
judicial proceeding.. ,u Tbe ~..i "a. cour< fur<ber ..a<.d <lla<
_tq)ua.i-1udicial officers should avoid all sucb contacts wbere
tbey are Identifiable _.11
While discussions witb the planning and zoning etaff would not
automatically mandate reversal of a county commission'. rezoning
decision. any allegation of prejudice resulting from ex'parte
communications in ~be ~asi-judicial proceeding would state a
cau.e of action for ju4icial review of tbe commission'. action.
In order to assure fairnesS to all partie., any ex parte commu-
nication witb tbe planning and zoning staff should be documented
and placed on <be record in order for all par<ie. <0 have an
opportunity to respond.
Q1)~.t': "-^ft ~o~
Oiven tbat tbe staff members of a county department requesting
a zoning cbange for county-owned property w~uld most likely
be advocates for tbe requested change, contact witb tbe staff
outside. the quasi-judicial proceeding could be considered ex
part. communica<ion. TOe 30"01.a. cour< .e< for<b <be following
criteria that should be considered in determining whether such
communication is prejudicial:
(w)betber, a8 a result of improper ex parte
communications, the agency'. decisionmaking process
was irrevocably tainted 80 a8 to make tbe ultimate
j~dgment of the agency unfair, eitber as to an
innocent party or to tbe public intereat tbat the
agency was obliged to protect. In making this
determination, a number of considerations may be
relevants .the gravitY of the ex parte communications;
whether the con~.ctS may have influenced the agency's
ultimate decision' whether the party malting the
improper contacts benefited from tbe agency's ultimate
decision, whether the contents of the co~nication.
were unknown to opposing parties, who tberefore had no
opportunity to respond; and whether vacation of tbe
agenCY's decision and remand for new proceedings would
serve a useful purpoee. Since the principal concerns
of the court are the integrity of the process and the
fairneSS of the result, mechanical rules have little
nt,~.t: inn Vi v..a
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LA OPINIONS DIV.
TEL:904-922-3969
Oct 19.94
8:54 No.OOl P.07
The Honorable Truman o. ScarbOrough, Jr.
page Six
94-71
place in a judicial decision whether to vacat. a
voidable agency proceeding. Instead, ~y luch decision
must of necessitY be an exercise of equitable diecre-
tion."
Accordingly, should communication occur between the county
commission and staff of a county department requesting · rezoning
of county property, such communication should be disclosed to all
interested partie. and placed on the record during the proceeding
to allow the parties to respond. .
~teg~4nn ~ix
The determination of whether consideration of a rezoning request
for county-owned property would constitute a conflict of inter.st
in violation of 8ectiO~ 112.3143, Florida Statutes, ia within
the jurisdiction of the Florida commission on Ethics.1' It
would appear, however, that the prohibition in section 112.3143,
Florida Statutes, relates to those instances where the vote of a
public officer would result in a -special private gain- to such
officer. It would appear, therefore, that absent an allegation
or showing of private gain. to ~ county commiesioner.s a result
of voting for the rezoning of county-owned property for the
purpoae of bringing it into compliance with the county's ..
c ve plan, there would be no conflict of interest
pursuant to ction 112.3143, Florida Statutes.
J
aob.rt ~.
~ttorn.Y
~/tgk
I
Butterworth
General
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58' So. 2d 1337 (Fl.. 3d DCA 1991) .
595 So. 2d 65 (Fla. 5th DCA 19'1).
a
J Saa, ~enninQ. at 1343, acknowledging that the granting of
zoning variances and special exceptions or permits i8 a quaei-
judicia1 action, citing w~19reen Co v. pn'k Cnnnty, 524 So. 24
1119, 1120 (Fla. 2d DCA 1988).
.
Jenninq- at 1345.
.A OPINIONS DIV.
TEL:904-922-39G9
Oct 19.94
8:54 No.OOl P.OS
The Honorable Tr\lman G. scarborough, Jr.
Page Seven
91-71
,
ct...., eection 120.66(2), Fla. St.at. (Un).
. BAA, Black's LaW Dictionary (5th ed. 1979), p. 517, defining
-[o)x parteW a. -[al judicial proceeding, order, injunction,
etC., . . . when it is taken or granted at the instanCe and
for the benefit of one party only, and without notice to, or
contestation by, any person adversely int.erested.w
~ &cA. section 125.01(1) (h), F.S. (1993). authorizing counties
to -[elstablish, coordinate, and enforce zonfng and such bu.i-
ne.. regulations as are necessary for the protection of the
public. - ..
. BAa. section 163.3201, F.S. (1993). stating that t.he adopted
comprehensive plans .hall be implemented, in part. by the
adoption of and enforcement of appropriate local regulations.
R~A a1AO, Op. Att'Y Gen. Fla. 79-88 (1979). in which th1e office
concluded that all development undertaken after the adoption of
a comprehensive plan must be in accordance with that plan; local
governments should amend exieting zoning ordinancee to conform
with the land-use' element. of such a co~prehen.ive plan; and Op.
Att'y Gen. Fla. 79-40 (1979) (county adopting comprehensive plan
mu.t adopt zoning, eubdivlsion planning. or other code. or regu-
lations consiatent with such plan).
. sac. Whit~ v. MetropolitAn Dad~ County, 563 So. 2d 117. 128
(Fla. 3d DCA 1990). in which the district court recognizee that
the uee of county-owned property must comply with the master
plan. its elements. and objectives) .
" orange County v City of ~opka. 299 So. 2d 652, 654 (Fla.
4th ~ 19"") .
II pAr~way Tower- ~pndnm;nitlm A99o~ia~inn v. Metrnpn\i~an n.de
r...un~y. 295 So. 2d 295. 295-296 (Fla. 197.).
d
,T...nninas at 1341. .'
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685 F. 2d 5.7, 564-565 (D.C.
,. SAA, section 11.2.320. F.S. (19'3). creating the Commis8ion
on Ethic8 a8 the guardian of the seandards of conduct for the
off~cers and employees of the staee, and of a county. city. or
other polieical subdivision of the seate.
"
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MIMQIlANO\JM
'0
Honorable Natacha S. Killan
County Commml881oner
OAfl,
Karch 29, 1994
M/IC" Nev8paper Art.lcles
Pertaining to Quasi-
Judicial Hearings
Robert L. ~rawch.ck
Assist.ant County Attorney
'tOM,
You have asked us to advise what a county commi8sioner
should do when he or she has read one or more newspaper articl.s
pertaining to an upcoming quasi-judiiial hearing. Your concern
arises trom the rule in the Jennings case which prohibits
ex-parte communications in quasi-judicial hearings.
.;r~nninas held tha~ "ex-parte couunica~ions are inheren~ly
improper and are anathema to quasi-judicial proceedings [and
that} quasi-judicial officers should avoid all such contacts
vhere they are identifiable." The court, however, "recognize[d)
the reality that commlssipners are elected ofticia18 in which
capacity they may ~navoidablY be the recipient. of unsolicited
ex-parte communications regarding quasi-judicial matters they are
to decide." Nevertheless, the ruling was that "(u)pon the
aggrieved party's proof that an ex-parte contact occurred, its
effect is presumed to be prejudicialaunles8 the defendant proves
the contrary by competent evidence.1f
While Jenninq. addressed solely due process rights, First
Amendment rights, particularly freedom of the press, are of
equally high priority. The reading of nevspaper articles may be
the very kind of occurrence recognized by the court's reference
to cert.ain unavoidable communications. eecause a nevspaper
article, even though unsolicited, could fora the basis of a
Jenninas-type lawsuit, ve suggest the fOllowing procedure.
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l~ennings v. Dade County, 589 50.2d 1337 (Fla.3d DCA 1991),
on rehearing.
a~ at 1347. All emphasis is supplied.
Hon. Natacha s. Kill~.,
.County COmDlssloners
Page No. 2
Karch 29, 1994
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It a commissioner is in tact prejudiced by reading the
article so that he or she cannot make an impartial decision based
solely upon the record, the commissioner should not participate
in the proceeding. If the commissioner Is not so prejudiced, the
commissioner should attend the meeting, report the tact of the
ex-parte communication on the record, and state that he or she
can make an impartial decision based solely upon the evidence to
be presented.
As with other kinds at written ex-parte communications, we
suggest that newspaper articles be placed into the record and
that all parties be given an opportunity to address the material
by way ot evidence and oral argument. Although there is no
assurance that a hearing will not be subject to reversal by the
courts, we believe that this procedure offers the best chance to
negate any potential prejudice and minimizes the risk of a
reversal by the courts.
Pleas. advise if we can be of further assistance.
~~.-A'~
fi, art . Kra check
Assistant County Attorney
aLl<\eka
cc: County co~ission
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