The Appearance of Fairness Doctrine Publication

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The Appearance of Fairness Doctrine in Washington State

January 1995 - Report No. 32

Copyright © 1995 by the Municipal Research & Services Center of Washington. All rights reserved. Except as permitted under the Copyright Act of 1976, no part of this publication may be reproduced or distributed in any form or by any means or stored in a data base or retrieval system without the prior permission of the publisher, however, government entities in the State of Washington are granted permission to reproduce and distribute this publication for official use

Introduction to the Appearance of Fairness Doctrine
History of the Doctrine in Washington State
- Court-Developed Doctrine
- The Importance of Impartial Decision-Makers
The Statutory Doctrine
- Types of Proceedings To Which it Applies
- Basic Requirements of the Statute
  - Applies Only to Quasi-judicial Proceedings
  - Does Not Apply to Policy Making or Legislative Actions
  - Special Rules Apply During Elections
  - Ex Parte Contacts Are Prohibited
  - No Disqualification for Prior Participation
  - Challenges Must Be Timely
  - Rule of Necessity
  - Fair Hearings Have Precedence
Guidelines for Avoiding Fairness Violations
- The Test for Fairness
- City Officials Who Are Subject to the Doctrine
- City Officials and Employees Who Are Not Subject to the Doctrine
- City Actions That Are Exempt from the Doctrine
- Remedy for Violation of the Doctrine
Commonly Asked Questions
Appendix A - Full Text of Statute, Ch. 42.36 RCW 26
Appendix C - Sample Council Procedures

Preface

This publication is designed to provide an overview of the appearance of fairness doctrine as it is applied in Washington State.

All municipal officials in Washington face concerns about making sure that meetings and hearings are conducted in a fair manner. This publication is intended to serve as a resource and convenient handbook for elected and appointed municipal officials, including planning commission and board members.

It reviews how the appearance of fairness doctrine developed in Washington State—first by court-made law, and later by state legislation—and provides a number of suggestions for assuring compliance with the law. It also contains a section on commonly asked questions, and includes sample checklists for conducting hearings. The appendix contains the full text of the appearance of fairness statutes, samples of meeting procedures for quasi-judicial hearings, and an outline of cases that illustrate how the doctrine has been applied in Washington.

Special acknowledgement is given to Pamela James, Legal Consultant, for her work in preparing this publication. Appreciation is also given to Holly Martin for her excellent work in designing the format and preparing the document for publication. Special thanks to Bob Meinig, Legal Consultant, and Ron Bartels, Public Policy Consultant, who reviewed the draft and provided helpful advice.

Richard Yukubousky, Director
Municipal Research & Services Center of Washington

Introduction to the Appearance of Fairness Doctrine

The appearance of fairness doctrine is a rule of law that requires government decision-makers to conduct non-court hearings and proceedings in a way that is fair and unbiased in both appearance and fact. It was developed as a method of assuring that due process protections, which normally apply in courtroom settings, extend to certain types of administrative decision-making hearings, such as rezones of specific property. The doctrine attempts to bolster public confidence in fair and unbiased decision-making by making certain that in both appearance and fact parties to an argument receive equal treatment.

Judicially established in Washington state in 1969, the doctrine requires that public hearings that are adjudicatory or quasi-judicial in nature meet two requirements: hearings must be procedurally fair, and must appear to be conducted by impartial decision-makers.

In 1982 the Washington State Legislature codified the portion of the appearance of fairness doctrine that applies to land use proceedings. The next sections will address how Washington courts have defined the doctrine, the statutory provisions of the doctrine, types of proceedings to which the doctrine applies, recognized violations of the doctrine, and suggestions for compliance.

The appearance of fairness doctrine is designed to guarantee that strict procedural requirements are followed so that land use hearings are not only fair, but also appear to be fair. The goal of the doctrine is to instill and maintain confidence in the fairness of government proceedings.

History of the Doctrine in Washington State

The appearance of fairness doctrine is not applied in all states. Washington, Oregon and Idaho are among the minority of states that impose heightened procedural protections on land use matters.

Court-Developed Doctrine

The appearance of fairness doctrine developed in Washington in the context of zoning hearings. In several 1969 cases, the Washington State Supreme Court invalidated local land use regulatory actions because either the hearings appeared unfair or public officials with apparently improper motives or biases failed to disqualify themselves from the decision-making process. The court decided that the strict fairness requirements of impartiality and procedural fairness mandated in judicial hearings should be applied when administrative bodies hold quasi-judicial hearings that affect individual or property rights.

This application reflected the court's belief in the importance of maintaining public confidence in land use regulatory processes. As stated in Chrobuck v. Snohomish County:

Washington courts have consistently contrasted the differences between the political process, which is designed to be responsive to public opinion, and the judicial process, which is designed to ensure that disputes are resolved according to sound legal principles. The Chrobuck court stated the doctrine in this manner:

Our courts have not imposed the appearance of fairness doctrine on legislative or political proceedings. This is probably due to the recognition that legislators most often act in policy making roles and are often influenced by their personal predilections and biases as well as those of the people they represent. Because legislators are expected to respond to variations in public opinion, frequent informal contact between elected officials and the public is recognized as necessary for the on-going business of democratic government. The elaborate procedural safeguards imposed by courts are not necessary for legislative proceedings because, ultimately, it is the voters who protect the process of legislation.

The Importance of Impartial Decision-Makers

As developed in case law, the appearance of fairness doctrine is intended to protect against actual bias, prejudice, improper influence, or favoritism. It is also aimed at curbing conditions that create suspicion, misinterpretation, prejudgment, partiality, and conflicts of interest. If an action is subject to the appearance of fairness doctrine, then all legally required public hearings, as well as the participating public officials, will be scrutinized for apparent fairness.From the earliest Washington cases, our courts have demanded that decision-makers who determine rights between specific parties must act and make decisions in a manner that is free of the suspicion of unfairness. The courts have been concerned with "entangling influences" and "personal interest" which demonstrate bias, and have invalidated local land use decisions because either the hearings appeared unfair or public officials with apparently improper motives failed to disqualify themselves from the decision-making process.

In Buell v. Bremerton the state supreme court identified three major categories of bias that it recognized as grounds for the disqualification of decision-makers who perform quasi-judicial functions: personal interest, prejudgment of issues, and partiality.

Personal Interest

Personal interest exists when someone stands to gain or lose because of a governmental decision. Our courts have found personal interest to exist in the following situations:

Financial Gain—See Swift v. Island County, where the condemned conflict arose from the fact that the chairperson of the board of county commissioners was also a stockholder and chairperson of the board of the mortgagee of the affected development.
Property Ownership—Where property values are directly affected by government action. See for example the Buell v. Bremerton (Appendix B) case where a planning commission member was disqualified because the value of his land increased due to rezone of property next to his land. (But where property is too far away to be directly benefitted by rezone, no violation occurs.)
Employment by Interested Person—A planning commissioner employed by a bank that held security interest in land (which doubled in value due to rezone.) (But past employment of an official by a rezone applicant was not a violation.)
Prospective Employment by Interested Person—Prospective employment for city councilmember which might appear to be based on his decision (retained as attorney for successful land use applicant).
Associational or Membership Ties—Or other "entangling influences impairing the ability to be or remain impartial."
Family or Social Relationships—Between a decision-maker and parties to hearing or non-parties who have an interest in the outcome of the proceeding, should be disclosed and made part of the record.

Prejudgment of Issues

Although public officials are not prohibited from expressing their opinions about general policy, it is inappropriate for decision-makers to be close-minded before they even hear testimony on a contested matter. Decision-makers need to reserve judgment until after all the evidence has been presented.

Impartiality in a proceeding may be undermined by a decision-maker's bias or prejudgment toward a pending application. In Anderson v. Island County, the state supreme court overturned a decision because a councilmember had prejudged a particular issue. He had made an unalterable decision before the hearing was held, evidenced by telling the applicant during the hearing that he was "just wasting his time" talking. (By statute, candidates can express opinions on proposed or pending quasi-judicial matters; but once elected to office they are expected to be able to draw the line between general policy and situations in which general policy is applied to specific factual situations.)

Partiality

Partiality is anathema to fair hearings and deliberations. The existence of hostility or favoritism can turn an otherwise carefully conducted hearing into an unfair proceeding. Partiality can also cost a city incalculable hours of wasted staff time and energy.

For example, in Hayden v. Pt. Townsend, 28 Wn. App. 192 (1981), the planning commission chairperson, who advocated a particular rezone for his business, relinquished his position as chair of the hearing, and did not vote or otherwise participate in his official capacity. Nevertheless, an appearance of fairness violation occurred because the planning commission chairperson acted as an advocate of the rezone by joining the hearing audience, acting as an agent of the rezone applicant, questioning witnesses and advising the acting chairman on procedural matters.

In Buell v. Bremerton an appearance of fairness violation occurred because a planning commission member continued to participate even though the rezone would have been approved without his vote and the planning commission approval was merely a recommendation to council. In reviewing the continuing participation of the disqualified member, the court found that the "bias of one member infects the actions of other members." "The importance of the appearance of fairness has resulted in the recognition that it is necessary only to show an interest that might have influenced a member of the commission and not that it actually so affected him."

Because each fact-situation requires a subjective evaluation, a great deal of confusion is caused by the different applications of the doctrine. No doubt the unpredictable nature of court application of the doctrine helped encourage the legislature to standardize the doctrine's application in land-use matters.

While most of the early appearance of fairness cases involved zoning matters, our courts have also applied the doctrine to civil service and other types of administrative proceedings that involve quasi-judicial hearings. See attached summary of Washington appearance of fairness cases, Appendix B.

Test for bias:

Has the decision been made solely on the basis of matters of record?
Would a fair-minded person, observing the proceedings, be able to conclude that everyone had been heard who should have been heard?
Did decision-makers give reasonable faith and credit to all matters presented, according to the weight and force they were reasonably entitled to receive?

The Statutory Doctrine

Types of Proceedings To Which it Applies

In 1982, the state legislature enacted what is now chapter 42.36 RCW, codifying the appearance of fairness doctrine. The statutory doctrine applies only to local quasi-judicial land use actions, as defined in RCW 42.36.010:

The primary characteristics of a quasi-judicial matter are that:

The decision has a greater impact on a limited number of persons or property owners, and has limited impact on the community at large.
The proceedings are aimed at reaching a fact-based decision by choosing between two distinct alternatives.
The decision involves policy application rather than policy setting.

The following types of land use matters meet this definition: subdivisions, preliminary plat approvals, conditional use permits, SEPA appeals, rezones of specific parcels of property, variances, and other types of discretionary zoning permits if a hearing must be held.

The doctrine does not apply to the following actions:

Adoption, amendment, or revision of comprehensive plans.
Adoption of area-wide zoning ordinances.
Adoption of area-wide zoning amendments.
Building permit denial.

As a practical matter, if both legislative and adjudicative functions are combined in one proceeding, and any showing of bias is present, the appearance of fairness rules should be followed.

Basic Requirements of the Statute

Applies Only to Quasi-judicial Proceedings

RCW 42.36.010: Application of the appearance of fairness doctrine to local

land use decisions shall be limited to the quasi-judicial actions of local decision-

making bodies....

The appearance of fairness doctrine applies only to quasi-judicial actions of local decision-making bodies when a hearing is required by statute or local ordinance.

Public officials act more like judges than administrators or legislators when they participate in quasi-judicial hearings. This means that they must listen to and evaluate testimony and evidence presented at a hearing; they must determine the existence of facts; they must draw conclusions from facts presented and then decide whether the law allows the requested action. A quasi-judicial proceeding involves policy application, rather than policy making.

"Quasi-judicial actions" are defined to include:

The principle characteristics of quasi-judicial proceedings:

Quasi-judicial proceedings generally have a greater impact on specific individuals then on the entire community.
The proceedings are aimed at arriving at a fact-based decision between two distinct alternatives, i.e., pro or con.
The decision involves policy application rather than policy setting.

The following matters have been determined by the courts to be quasi-judicial if a public hearing must be held: conditional uses, variances, subdivisions, rezoning a specific site, PUD approval, preliminary plat approval, discretionary zoning permits, appeal of a rezone application, other types of zoning changes which involve fact-finding and the application of general policy to a discrete situation.

Before proceeding with a hearing: Determine whether the intended action will produce a general rule or policy that applies to an open class of individuals, interests or situations (and is thus legislative), or whether it will apply a general rule of policy to specific individuals, interests, or situations (and is therefore quasi-judicial).

Does Not Apply to Policy Making or Legislative Actions

RCW 42.36.010: Quasi-judicial actions do not include the legislative actions

adopting, amending, or revising comprehensive, community, or neighborhood

plans or other land use planning documents or the adoption of area-wide zoning

ordinances or the adoption of a zoning amendment that is of area-wide

significance.

Policy making is clearly the work of legislative bodies and doesn't resemble the ordinary business of the courts. The doctrine does not apply to local legislative, policy making actions of the type which adopt, amend, or revise comprehensive, community, or neighborhood plans or other land use planning documents. It also does not apply to the passage of area-wide zoning ordinances, or to the adoption of zoning amendments which are of area-wide significance.

Even though a zoning amendment might affect specific individuals, if it applies to an entire zoning district, it will be considered legislative, not quasi-judicial. As the court noted in Raynes v. Leavenworth:

The courts have also determined the following matters to be legislative (e.g., political or policy decisions) and therefore not subject to the appearance of fairness doctrine: comprehensive plans, initial zoning decisions, amendments to the text of zoning ordinances, street vacations, revision of a community plan viewed by the court to be "in the nature of a blueprint and policy statement for the future," determining where to place a highway interchange.

Special Rules Apply During Elections

RCW 42.36.050: A candidate for public office who complies with all provisions

of applicable public disclosure and ethics laws shall not be limited from

accepting campaign contributions to finance the campaign, including

outstanding debts; nor shall it be a violation of the appearance of fairness

doctrine to accept such campaign contributions.

During campaigns, candidates for public office are allowed to express their opinions about pending or proposed quasi-judicial actions, even though they may be involved in later hearings on these same actions. Candidates are also allowed to accept campaign contributions from constituents who have quasi-judicial matters pending before the decision-making body as long as candidates comply with applicable public disclosure and ethics laws.

Ex Parte Contacts Are Prohibited*

RCW 42.36.060: During the pendency of any quasi-judicial proceeding, no

member of a decision-making body may engage in ex parte communications

with opponents or proponents with respect to the proposal which is the subject

of the proceeding unless that person:

(1) Places on the record the substance of any written or oral ex parte communications concerning the decision or action; and
(2) Provides that a public announcement of the content of the communication and of the parties' rights to rebut the substance of the communication shall be made at each hearing where action is considered or taken on the subject to which the communication is related. This prohibition does not preclude a member of a decision-making body from seeking in a public hearing specific information or data from such parties relative to the decision if both the request and the results are a part of the record. Nor does such prohibition preclude correspondence between a citizen and his or her elected official if any such correspondence is made a part of the record when it pertains to the subject matter of a quasi-judicial proceeding.

*Ex parte literally means "one sided." Ex parte contact involves a one-sided discussion without providing the other side with an opportunity to respond and state their case.

A basic principle of fair hearings is that decisions are made entirely on the basis of evidence presented at the proceedings. All parties to a conflict should be allowed to respond and state their case. Consequently, while a quasi-judicial proceeding is pending, no member of a decision-making body is allowed to engage in ex parte (one-sided or outside the record of the hearing) communications with either proponents or opponents of a pending proceeding.

However, a decision-maker is allowed to cure a violation caused by an ex parte communication by:

Placing the substance of any oral or written communications or contact on the record; and
At each hearing where action is taken or considered on the subject, (1) making a public announcement of the content of the communication, and (2) allowing involved parties to rebut the substance of the communication.

This rule does not prohibit written correspondence between a citizen and an elected official on the subject matter of a pending quasi-judicial matter if the correspondence is made a part of the record of the proceedings.

No Disqualification for Prior Participation

RCW 42.36.070: Participation by a member of a decision-making body in

earlier proceedings that result in an advisory recommendation to a decision-

making body shall not disqualify that person from participating in any

subsequent quasi-judicial proceeding.

A decision-maker (such as a councilmember who was formerly a planning commission member) who participated in earlier proceedings on the same matter that resulted in an advisory recommendation to another decision-making body (e.g., the city council), is not disqualified from participating in the subsequent quasi-judicial proceedings.

Challenges Must Be Timely

RCW 42.36.080: Anyone seeking to rely on the appearance of fairness doctrine

to disqualify a member of a decision-making body from participating in a

decision must raise the challenge as soon as the basis for disqualification is made

known to the individual. Where the basis is known or should reasonably have

been known prior to the issuance of a decision and is not raised, it may not be

relied on to invalidate the decision.

If information is disclosed indicating violation of the doctrine, opponents or proponents can decide whether to request disqualification or waive their right to challenge the alleged violation. Challenges based on a suspected violation of the appearance of fairness doctrine have to be raised as soon as the basis for disqualification is made known or reasonably should have been known prior to the issuance of the decision, otherwise they cannot be used to invalidate the decision.

Rule of Necessity

RCW 42.36.090: In the event of a challenge to a member or members of a

decision-making body which would cause a lack of a quorum or would result in

a failure to obtain a majority vote as required by law, any such challenged

member(s) shall be permitted to fully participate in the proceeding and vote as

though the challenge had not occurred, if the member or members publicly

disclose the basis for disqualification prior to rendering a decision. Such

participation shall not subject the decision to a challenge by reason of violation

of the appearance of fairness doctrine.

If members of a decision-making body are challenged as being in violation of the doctrine so that there are not enough members to legally make a decision, the "rule of necessity" allows challenged members to participate and vote. Before voting, though, the challenged officials must publicly state why they would or might have been disqualified.

Fair Hearings Have Precedence

RCW 42.36.110: Nothing in this chapter prohibits challenges to local land use

decisions where actual violations of an individual's right to a fair hearing can

be demonstrated.

Even though some conduct might not violate the statutory provisions of the appearance of fairness doctrine, a challenge could still be made if an unfair hearing actually results. For instance, although RCW 42.36.040 permits candidates to express opinions on pending quasi-judicial matters, if opinion statements made during a campaign reflect an intractable attitude or bias that continues into the post-election hearing process, a court might determine that the right to a fair hearing has been impaired even if no statutes were violated.

The safest approach: avoid any appearance of partiality or bias.

Because it is often difficult to sort out the many functions of local decision-making bodies, a clear line cannot always be drawn between judicial, legislative, and administrative functions. If the proceedings seem similar to judicial proceedings then they probably warrant the special protections called for by the appearance of fairness doctrine.

Guidelines for Avoiding Fairness Violations

City officials who participate in quasi-judicial hearings need to:

Become familiar with fair-hearing procedures.
Be aware of personal and employment situations which might form the basis for a challenge.
Strive to preserve an atmosphere of fairness and impartiality—even if a given decision may seem to be a foregone conclusion.
Evaluate whether a financial interest or bias would limit ability to function as an impartial decision-maker.
Make sure decisions are made solely on the basis of matters of record.
Make sure that ex parte contacts are avoided.
If ex parte contacts occur, make sure the information about the contact is placed on the record.

One method of ensuring fair hearings is to adopt policies and rules for quasi-judicial matters. Some cities have adopted rules which require that decision makers respond to questions prior to commencement of a quasi-judicial hearing. (Sample policies are contained in Appendix C.)

The Test for Fairness

Would a fair minded person in attendance at this hearing say (1) that everyone was heard who should have been heard, and (2) that the decision-maker was impartial and free from outside influences?

City Officials Who Are Subject to the Doctrine

The doctrine applies to all local decision-making bodies including:

Members of city council.
Hearing examiners.
Planning commissions.
Boards of adjustment.
Civil service boards.
Any other body which determines the legal rights, duties or privileges of specific parties in a hearing or other contested case proceeding.

City Officials and Employees Who Are Not Subject to the Doctrine

Department heads, planning department staff, and other city officials who don't conduct hearings or engage in quasi-judicial decision-making functions are not subject to the doctrine. (Although exempt from the doctrine's ex parte contact prohibition, they might still be subject to its other requirements to make sure that all hearings are fair. RCW 42.36.110.)

City Actions That Are Exempt from the Doctrine

Purely legislative matters, such as:

The adoption, amendment, or revision of a comprehensive, community, or neighborhood plan.
Adoption of area-wide zoning ordinances.
Adoption of zoning amendments of area-wide significance.

Remedy for Violation of the Doctrine

A decision-maker who has had ex parte contacts is allowed by statute to cure the violation by publicly stating the nature and substance of the contact on the record of the hearing, and by advising theparties of any ex parte contact and giving each party a chance to respond at each subsequent hearing at which the matter is considered.

The statutory doctrine requires a suspected violation to be raised at the time of the hearing, otherwise any objection will be considered waived. However, if there is no opportunity for the parties to respond to the disclosure of the contact, then the violation can't be cured and the decision-maker should disqualify him or herself from the rest of the proceedings.

A disqualified decision maker may not vote and, perhaps more importantly, may not participate in the hearing and deliberation process, even if not voting.

If a violation is proved, the challenged decision will be invalidated. A new hearing must be conducted without the participation of the disqualified decision-maker. Because the result of conducting a new hearing is often eventual reinstatement of the original decision, the practical result of an invalidation is often tremendous delay and duplicative work for all the parties.

Frequently Asked Questions on
Appearance of Fairness

Questions

How does a city council decide whether a matter is quasi-judicial?
Which land use matters are legislative actions?
What is an ex parte communication?
How is it determined whether a matter is pending?
Is a council hearing on the adoption of an area-wide zoning ordinance subject to the appearance of fairness doctrine?
Is a rezone hearing subject to the doctrine?
Is an annexation subject to the appearance of fairness doctrine?
Does the appearance of fairness doctrine apply to preliminary plat approval?
Does the appearance of fairness doctrine apply to a final plat approval?
Does the doctrine apply to street vacations?
Which city officials are subject to the doctrine?
Are any city officials or employees exempt from the appearance of fairness rule?
If a councilmember announces before the hearing has even been held that her/his mind is already made up on a matter, what should be done?
May a councilmember meet with a constituent on matters of interest to the constituent?
May the council and planning commission meet jointly to consider a presentation by a developer?
May councilmembers meet with a developer prior to an application for a project?
May councilmembers discuss a quasi-judicial matter outside of council chambers?
Is there an appearance of fairness problem if a planning commission member owns property within an area proposed for rezone?
May a planning commission member who has disqualified himself on a rezone action, discuss the application with other planning commission members?
If a councilmember has disqualified herself from participation in a council hearing because she is an applicant in a land use matter, may she argue her own application in writing before the council?
May a relative of a councilmember who is also a developer act as an agent for that councilmember in presenting the proposal to council?
May the spouse of a disqualified councilmember testify at a hearing before the council?
May a councilmember vote on a legislative issue if her husband is a planner for the county and the issue could indirectly affect his work?
May a city staff person present a development proposal to the planning commission and city council on behalf of a developer who is also a city councilmember?
In a situation in which the chairman of the planning commission is a realtor and represents a client wishing to purchase property in an area of the city that is being considered for a rezone, may the chairman participate in the hearing and vote on the rezone application?
Will a violation of the appearance of fairness doctrine invalidate a decision even if the vote of the "offender" was not necessary to the decision?
Are contacts between a decision-maker and city staff members considered to be ex parte contacts prohibited by the appearance of fairness doctrine?
May a councilmember participate in a vote on leasing city property to an acquaintance?
May a councilmember who is running for mayor state opinions during the campaign regarding quasi-judicial matters that are pending before the council and that will be decided before the election?
A councilmember who is also chair of the local housing authority would like to participate in a hearing at which the council is asked to review a proposed low-income housing project. If she can't participate as a councilmember, can she make her views known as a private citizen?
If a councilmember is disqualified from participation on appearance of fairness grounds and discusses the issue with another councilmember, may the second councilmember still participate and vote?
May a councilmember attend a planning commission hearing on a quasi-judicial matter?
Can a candidate for municipal office accept campaign contributions from someone who has a matter pending before the council?
Aren't elected officials supposed to be able to interact with their constituents?
Can a quorum be lost through disqualification of members under the appearance of fairness doctrine?
What should a decision-maker do if an appearance of fairness challenge is raised?
Are there any limitations on raising an appearance of fairness challenge?
If a violation is proved, what is the remedy?
Does the appearance of fairness doctrine prohibit a decision-maker from reviewing and considering written correspondence regarding matters to be decided in a quasi-judicial proceeding?
What city department oversees application of the appearance of fairness doctrine?

How does a city council decide whether a matter is quasi-judicial?

Quasi-judicial actions are defined by state statute to be: "...those actions of the legislative body, planning commission, hearing examiner, zoning adjuster, board of adjustment, or boards which determine the legal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding." RCW 42.36.010.
Which land use matters are legislative actions?

Legislative actions include adoption, amendment, or revision of comprehensive, community, or neighborhood plans or other land use planning documents, or adoption of zoning ordinances or amendments which are of area-wide significance. See RCW 42.36.010.
What is an ex parte communication?

An ex parte communication is a one-sided discussion between a decision-maker and the proponent or opponent of a particular proposal which takes place outside of the formal hearing process on a quasi-judicial matter. No member of a decision-making body is allowed to engage in ex parte communication when quasi-judicial matters are pending.
How is it determined whether a matter is pending?

"Pending" means after the time the initial application is filed or after the time an appeal is filed with the city council. Thus, if a matter would come before the council only by appeal from a decision by the hearing examiner or planning commission, it is not considered pending with respect to city councilmembers until an appeal is filed. It would, however, be pending with respect to the hearing examiner or planning commissioners.
Is a council hearing on the adoption of an area-wide zoning ordinance subject to the appearance of fairness doctrine?

No. Even though it requires a public hearing and affects individual landowners, this type of proceeding is legislative rather than adjudicatory or quasi-judicial.
Is a rezone hearing subject to the doctrine?

Yes. The decision to change the zoning of particular parcels of property is adjudicatory and the appearance of fairness doctrine applies. (See Leonard v. City of Bothell, 87 Wn. 2d 847, 557 P.2d 1306 (1976).
Is an annexation subject to the appearance of fairness doctrine?

No. An annexation is a legislative action and not a quasi-judicial action.
Does the appearance of fairness doctrine apply to preliminary plat approval?

Yes, preliminary plat approval is quasi-judicial in nature and must be preceded by a public hearing. Therefore, it is subject to the doctrine of appearance of fairness. See Swift v. Island County, 87 Wn.2d 348, 552 P.2d 175 (1976).
Does the appearance of fairness doctrine apply to a final plat approval?

A public hearing is not required for final plat approval. The doctrine only applies to quasi-judicial land use matters for which a hearing is required by law.
Does the doctrine apply to street vacations?

No. Even though a hearing is held, this is a legislative policy decision, not an adjudicatory matter.
Which city officials are subject to the doctrine?

According to RCW 42.36.010, council members, planning commission members, board of adjustment members, hearing examiners, zoning adjusters, or members of boards participating in quasi-judicial hearings which determine the legal rights, duties or privileges of specific parties in a hearing or other contested case proceeding," are all subject to the doctrine.
Are any city officials or employees exempt from the appearance of fairness rule?

Even though required to make decisions on the merits of a particular case, department heads and city staff persons are not subject to the appearance of fairness rules.
If a councilmember announces before the hearing has even been held that her/his mind is already made up on a matter, what should be done?

The member should disqualify her/himself. (See Chrobuck v. Snohomish County, 78 Wn.2d 858, 480 P.2d 489 (1971).
May a councilmember meet with a constituent on matters of interest to the constituent?

Yes, as long as there is no discussion of quasi-judicial matters pending before the council. See RCW 42.36.020; West Main Associates v. City of Bellevue, 49 Wn.App 513, 742 P.2d 1266 (1987).
May the council and planning commission meet jointly to consider a presentation by a developer?

If no specific application has been filed by the developer, the council probably may meet jointly with the planning commission to consider a proposal by a developer. The appearance of fairness doctrine has been held by the courts to apply only to situations arising during the pendency of an action. If no application has been filed, no action is pending before the city. But if a formal application for a rezone has been filed, a joint meeting would probably violate the doctrine.
May councilmembers meet with a developer prior to an application for a project?

Yes, if no application has been filed. A member of a decision-making body is not allowed to engage in ex parte communications with opponents or proponents of a proposal during the pendency of a quasi-judicial proceeding unless certain statutory conditions are met. In West Main Associates v. Bellevue, 49 Wn. App. 513, 742 P.2d 1266 (1987), the court indicated that ex parte communications were not prohibited until an actual appeal has been filed with the city council relating to a quasi-judicial matter.
May councilmembers discuss a quasi-judicial matter outside of council chambers?

If a situation occurs in which communication with a councilmember occurs outside of the city's hearing process, the councilmember should place the substance of the written or oral communication on the record, make a public announcement of the content of the communication, and allow persons to rebut the substance of the communication. Failure to follow these steps could result in an overturning of the council's decision, should it ever be challenged in court.
Is there an appearance of fairness problem if a planning commission member owns property within an area proposed for rezone?

It would violate the appearance of fairness doctrine if a planning commission member who owns property in the area to be rezoned participates in the hearing and/or votes. In the leading case on this issue, Buell v. Bremerton, 80 Wn.2d 518, 495 P.2d 1358 (1972), a planning commissioner owned property adjacent to an area to be rezoned. The court determined that the commissioner's self-interest was sufficient to invalidate the entire proceeding.
May a planning commission member who has disqualified himself on a rezone action, discuss the application with other planning commission members?

A planning commission member who has disqualified himself on a specific action should not attempt to discuss the application with other planning commission members either inside or outside of the hearing process. See Hayden v. Port Townsend, 28 Wn. App. 192, 622 P.2d 1291 (1981).
If a councilmember has disqualified herself from participation in a council hearing because she is an applicant in a land use matter, may she argue her own application in writing before the council?

Our courts have ruled that once a member relinquishes his or her position for purposes of the doctrine, he or she should not participate in the hearing. A disqualified decision maker should not join the hearing audience, act on behalf of an applicant, or interact in any manner with the other members. See Hayden v. Port Townsend, 28 Wn. App. 192, 622 P.2d 1291 (1981).
May a relative of a councilmember who is also a developer act as an agent for that councilmember in presenting the proposal to council?

Yes, a relative would be allowed to act as the agent in these circumstances.
May the spouse of a disqualified councilmember testify at a hearing before the council?

If the councilmember disqualifies him or herself on a quasi-judicial issue coming before the council, his/her spouse may testify as long as the councilmember leaves the room and does not attempt to vote or participate in the deliberations.
May a councilmember vote on a legislative issue if her husband is a planner for the county and the issue could indirectly affect his work?

Yes. If the vote is on a legislative matter, then the appearance of fairness doctrine does not apply.
May a city staff person present a development proposal to the planning commission and city council on behalf of a developer who is also a city councilmember?

The staff member can present a report and recommendation to the council or planning commission on behalf of the city. It is not appropriate for city staff to present both the city and the developer's position.
In a situation in which the chairman of the planning commission is a realtor and represents a client wishing to purchase property in an area of the city that is being considered for a rezone, may the chairman participate in the hearing and vote on the rezone application?

The fact that the chairman is a realtor does not in itself disqualify him from participation in rezone hearings. However, his representation of a client wanting to purchase property in the area being considered for a rezone constitutes sufficient reason for disqualification from participation.
Will a violation of the appearance of fairness doctrine invalidate a decision even if the vote of the "offender" was not necessary to the decision?

Yes. Our courts have held that it is immaterial whether the vote of the offender was or was not necessary to the decision.
Are contacts between a decision-maker and city staff members considered to be ex parte contacts prohibited by the appearance of fairness doctrine?

The role of a city department is to create a neutral report on a proposal and issue a recommendation to grant or deny a proposal that is subject to further appeal or approval. Contacts with city staff would only be prohibited if the city department involved is a party to quasi-judicial action before the council.
May a councilmember participate in a vote on leasing city property to an acquaintance?

Because the lease of city property is not a quasi-judicial matter and does not involve a public hearing, the appearance of fairness doctrine does not apply. [Note: There could be a potential conflict of interest question if the councilmember is likely to reap financial gain from the lease arrangements.]
May a councilmember who is running for mayor state opinions during the campaign regarding quasi-judicial matters that are pending before the council and that will be decided before the election?

RCW 42.36.040 provides that "expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions" is not a violation of the appearance of fairness doctrine. However, this statute has never been interpreted by any appellate court, and it is unclear how it applies to an incumbent councilmember who might speak during his or her campaign (for mayor in this case) concerning a quasi-judicial matter that will be decided by the current council before the upcoming election. It would be best for the councilmember running for mayor not to speak on the pending matter. To do so could compromise the fairness of the hearing on the matter. RCW 42.36.110 operates to protect the right to a fair hearing despite compliance with other requirements of chapter 42.36 RCW. Although RCW 42.36.040 clearly allows non-incumbents running for office to speak on such a matter, the rights of the parties to a fair hearing might outweigh the right of an incumbent to speak out.
A councilmember who is also chair of the local housing authority would like to participate in a hearing at which the council is asked to review a proposed low-income housing project. If she can't participate as a councilmember, can she make her views known as a private citizen?
Because the council will be meeting as a quasi-judicial body, the appearance of fairness doctrine is implicated. Consequently, the councilmember should not only refrain from participation and voting on the issue but should also physically leave the room when the remaining councilmembers discuss the matter. This removes any potential claim that the councilmember has attempted to exert undue influence over the other councilmembers.
If a councilmember is disqualified from participation on appearance of fairness grounds and discusses the issue with another councilmember, may the second councilmember still participate and vote?

If the first councilmember is disqualified then any discussion between the disqualified member and the other councilmember could be construed as an ex parte communication. If the content of the conversation is placed on the record according to the requirements of RCW 42.36.060, the other member could probably participate.
May a councilmember attend a planning commission hearing on a quasi-judicial matter?

Although RCW 42.36.070 provides that participation by a member of a decision-making body in an earlier proceeding that results in an advisory recommendation to a decision-making body does not disqualify that person from participating in any subsequent quasi-judicial proceeding, such participation could potentially affect the applicant's right to a fair hearing. RCW 42.36.110 provides:

Nothing in this chapter prohibits challenges to local land use decisions where actual violation of an individuals' right to a fair hearing can be demonstrated.

Out of perhaps an excess of caution, this office generally recommends that city councilmembers not attend planning commission hearings on quasi-judicial matters because it is possible that their attendance might give rise to a challenge based on the appearance of fairness doctrine. We are not aware of any court decisions in which such a challenge has been adjudicated.
Can a candidate for municipal office accept campaign contributions from someone who has a matter pending before the council?

Yes. Candidates may receive campaign contributions without violating the doctrine. RCW 42.36.050; Improvement Alliance v. Snohomish Co., 61 Wn.App. 64, 808 P.2d 781 (1991). However, contributions must be reported as required by public disclosure law. Chapter 42.17 RCW.
Aren't elected officials supposed to be able to interact with their constituents?

Absolutely. Accountability is a fundamental value in our representative democracy and requires public officials to be available to interact with their constituents. The statute addresses this by limiting the doctrine to quasi-judicial actions and excluding legislative actions.
Can a quorum be lost through disqualification of members under the appearance of fairness doctrine?

No. If a challenge to a member or members of a decision-making body would prevent a vote from occurring, then the challenged member or members may participate and vote in the proceedings provided that they first disclose the basis for what would have been their disqualification. This is known as the "doctrine of necessity" and is codified in RCW 42.36.090.
What should a decision-maker do if an appearance of fairness challenge is raised?

The challenged decision-maker should either refrain from participation or explain why the basis for the challenge does not require him or her to refrain.
Are there any limitations on raising an appearance of fairness challenge?

Yes. Any claim of a violation must be made "as soon as the basis for disqualification is made known to the individual." If the violation is not raised when it becomes known, or when it reasonably should have been known, the doctrine cannot be used to invalidate the decision. RCW 42.36.080.
If a violation is proved, what is the remedy?

The remedy for an appearance of fairness violation is to invalidate the local land use regulatory action. The result is that the matter will need to be reheard. Damages, however, cannot be imposed for a violation of the doctrine. See Alger v. City of Mukilteo, 107 Wn. 2d 541, 730 P.2d 1333 (1987).
Does the appearance of fairness doctrine prohibit a decision-maker from reviewing and considering written correspondence regarding matters to be decided in a quasi-judicial proceeding?

No. Decision-makers can accept written correspondence from anyone provided that the correspondence is disclosed and made part of the record of the quasi-judicial proceeding. RCW 42.36.060.
What city department oversees application of the appearance of fairness doctrine?

No person or body has the authority to oversee application of the appearance of fairness doctrine to members of a city council. It is up to the individual councilmembers to determine whether the doctrine applies to them in a particular situation, and to disqualify themselves if it does. Some city councils have established rules that allow the votes of the council to disqualify a member in the event of an appearance of fairness challenge. A city council probably has the authority to establish such a rule based upon its statutory authority to establish rules of conduct.

Appendix A

Laws/Statutes Designed to Promote Fairness and Openness in Government

Chapter 42.17 RCW—Public Disclosure Act
Chapter 42.30 RCW—Open Public Meetings Act
Chapter 42.36 RCW—Appearance of Fairness Doctrine - Limitations (see full text below)

Chapter 42.36 RCW —Appearance of Fairness Doctrine - Limitations

Application of the appearance of fairness doctrine to local land use decisions shall be limited to the quasi-judicial actions of local decision-making bodies as defined in this section. Quasi-judicial actions of local decision-making bodies are those actions of the legislative body, planning commission, hearing examiner, zoning adjuster, board of adjustment, or boards which determine the legal rights, duties, or privileges of specific parties in a hearing or other contested case proceeding. Quasi-judicial actions do not include the legislative actions adopting, amending, or revising comprehensive, community, or neighborhood plans or other land use planning documents or the adoption of area-wide zoning ordinances or the adoption of a zoning amendment that is of area-wide significance.

RCW 42.36.020 —Members of Local Decision-making Bodies

No member of a local decision-making body may be disqualified by the appearance of fairness doctrine for conducting the business of his or her office with any constituent on any matter other than a quasi-judicial action then pending before the local legislative body.

RCW 42.36.030—Legislative Action of Local Executive or Legislative Officials

No legislative action taken by a local legislative body, its members, or local executive officials shall be invalidated by an application of the appearance of fairness doctrine.

RCW 42.36.040 —Public Discussion by Candidate for Public Office

Prior to declaring as a candidate for public office or while campaigning for public office as defined by RCW 42.17.020(5) and (25) no public discussion or expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall be a violation of the appearance of fairness doctrine.

RCW 42.36.050 —Campaign Contributions

A candidate for public office who complies with all provisions of applicable public disclosure and ethics laws shall not be limited from accepting campaign contributions to finance the campaign, including outstanding debts; nor shall it be a violation of the appearance of fairness doctrine to accept such campaign contributions.

RCW 42.36.060 —Quasi-judicial Proceedings - Ex parte Communications Prohibited, Exceptions

During the pendency of any quasi-judicial proceeding, no member of a decision-making body may engage in ex parte communications with opponents or proponents with respect to the proposal which is the subject of the proceeding unless that person:

Places on the record the substance of any written or oral ex parte communications concerning the decision of action; and
Provides that a public announcement of the content of the communication and of the parties' rights to rebut the substance of the communication shall be made at each hearing where action is considered or taken on the subject to which the communication related. This prohibition does not preclude a member of a decision-making body from seeking in a public hearing specific information or data from such parties relative to the decision if both the request and the results are a part of the record. Nor does such prohibition preclude correspondence between a citizen and his or her elected official if any such correspondence is made a part of the record when it pertains to the subject matter of a quasi-judicial proceeding.

RCW 42.36.070 —Quasi-judicial Proceedings - Prior Advisory Proceedings

Participation by a member of a decision-making body in earlier proceedings that result in an advisory recommendation to a decision-making body shall not disqualify that person from participating in any subsequent quasi-judicial proceeding.

RCW 42.36.080 —Disqualification Based on Doctrine - Time Limitation for Raising Challenge

Anyone seeking to rely on the appearance of fairness doctrine to disqualify a member of a decision-making body from participating in a decision must raise the challenge as soon as the basis for disqualification is made known to the individual. Where the basis is known or should reasonably have been known prior to the issuance of a decision and is not raised, it may not be relied on to invalidate the decision.

RCW 42.36.090 —Participation of Challenged Member of Decision-making Body

In the event of a challenge to a member or members of a decision-making body which would cause a lack of a quorum or would result in a failure to obtain a majority vote as required by law, any such challenged member(s) shall be permitted to fully participate in the proceeding and vote as though the challenge had not occurred, if the member or members publicly disclose the basis for disqualification prior to rendering a decision. Such participation shall not subject the decision to a challenge by reason of violation of the appearance of fairness doctrine.

RCW 42.36.100 —Judicial Restriction of Doctrine Not Prohibited - Construction of Chapter

Nothing in this chapter prohibits the restriction or elimination of the appearance of fairness doctrine by the appellate courts. Nothing in this chapter may be construed to expand the appearance of fairness doctrine.

RCW 42.36.110 —Right to Fair Hearing Not Impaired

Nothing in this chapter prohibits challenges to local land use decisions where actual violations of an individual's right to a fair hearing can be demonstrated.

Appendix B

This is not available in electronic format. It is available in the paper copy of our publication.

Appendix C

Sample Council Meeting Procedures for Quasi-Judicial Meetings

Public Hearing Procedure, City of Marysville (1990)

The public hearing for ___________________ is now open.

This public hearing will proceed in an orderly fashion and I would like to ask your cooperation in the following procedure:

At this point (Councilmember, Commissioner) __________________ will be excusing (himself/herself) from the meeting. (Ask (Councilmember, Commissioner) to state his/her reasons for being excused.)

The concern is that this hearing be fair in form and substance as well as appearance. Therefore, I would like to ask if there is anyone in the audience who objects to my participation as (Mayor, Chairperson) or any other (Councilmember's, Commissioners) participation in these proceedings? (If objections, give reasons.)

Do any of the (Councilmembers, Commissioners) have an interest in this property or issue? Do any of you stand to gain or lose any financial benefit as a result of the outcome of this hearing? Can you hear and consider this in a fair and objective manner?

Has any member of the (Council, Commission) engaged in communication outside this hearing with opponents or proponents on the issue to be heard? If so, that member must place on the record the substance of any such communication so that other interested parties may have the right at this hearing to rebut the substance of the communication.

The purpose of this hearing is for the (Council, Commission) to hear and consider the pertinent facts relating to the _____________ and to (approve or deny, recommend) with conditions.

Before hearing from the audience, I am going to introduce _________________, City Administrator, who will present the staff report. City Administrator gives report.

Proponent speaks.

At this time, the floor is open for comments from the audience. In fairness to all in attendance, each person will be given an opportunity to address the (Council, Commission) for an initial period not to exceed five minutes. If more time is needed, it will be made available after everyone has had a chance to speak. I am requesting the (Councilmembers, Commissioners) to hold their questions of the public until everyone is done.City of Pullman (9-8-92)

At the outset, each Councilmember should be asked by the Mayor whether:

Does any member of this Council have knowledge of having conducted business with either the proponents or the opponents of this zone change?
Does any member of this Council have either a pecuniary or a non-pecuniary interest in the outcome of this proceeding?
Does any member of this Council know whether or not their employer has a financial interest in the area for which this zone change is requested, or has an interest in the outcome of this proceeding?
Does any member of this Council live or own property within 300 feet of the area for which the zone change is requested?
Does any member of this Council have any special knowledge about the substance or the merits of this proceeding which would or could cause the Council to prejudge the outcome of this proceeding?
Is there a member of this Council who believes that he or she cannot sit and hear this matter fairly and impartially, both as to the respective positions of the proponents and the opponents of the requested zone change?
Is there any member of the audience who because of the "Appearance of Fairness Doctrine" wishes to disqualify any member of this Council from hearing this matter? If so, please state the name of the Councilmember and the reason or reasons why you believe that Councilmember should be disqualified because of the "Appearance of Fairness Doctrine."

After the Councilmembers have been qualified the Mayor should read the following:

City of Redmond

A City of Redmond ordinance makes it council policy that members (1) should not attend meetings of other city boards and commissions concerning quasi-judicial matters which are pending before the city and which ultimately will be decided by council; and (2) council members may make site visits on matters pending before city council, but at the hearing the council members should disclose what information was observed at the site visit.