MRSC Inquiries

Appearance of Fairness Doctrine

1. What is the Appearance of Fairness Doctrine?
   The "appearance of fairness doctrine" governs the conduct of certain hearings. Basically, the rule requires that for justice to be done in hearings that affect individual or property rights ("quasi-judicial" proceedings), the hearings must not only be fair, they must also be free from even the appearance of unfairness. Although the appearance of fairness doctrine usually applies to land use hearings, it has been applied to civil service and other hearings as well.
   
   
2. 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.
   
   
3. 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.
   
   
4. 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.
   
   
5. 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.
   
   
6. 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.
   
   
7. 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).
   
   
8. Is an annexation subject to the appearance of fairness doctrine?
   No. An annexation is a legislative action and not a quasi-judicial action.
   
   
9. 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).
   
   
10. 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.
    
    
11. Does the doctrine apply to street vacations?
    No. Even though a hearing is held, this is a legislative policy decision, not an adjudicatory matter.
    
    
12. 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.
    
    
13. 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.
    
    
14. 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).
    
    
15. 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).
    
    
16. 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.
    
    
17. 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.
    
    
18. 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.
    
    
19. 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.
    
    
20. 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).
    
    
21. 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).
    
    
22. 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.
    
    
23. 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.
    
    
24. 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.
    
    
25. 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.
    
    
26. 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.
    
    
27. 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.
    
    
28. 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.
    
    
29. 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.]
    
    
30. 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.
    
    
31. 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.
    
    
32. 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.
    
    
33. 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.
    
    
34. 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.
    
    
35. 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.
    
    
36. 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.
    
    
37. 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.
    
    
38. 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).
    
    
39. 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.
    
    
40. 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.