THE QUASI-JUDICIAL PROCESS AND CITIZEN ACCESS TO THE CITY COUNCIL
One of the most misunderstood aspects of local government is the Quasi-Judicial process, and the limits that process imposes on citizen access to their elected representatives. Residents are accustomed to contacting City Council members to discuss local affairs and find it hard to understand why they cannot communicate with those same officials about certain types of public matters.
DEFINING QUASI-JUDICIAL MATTERS AND HOW THEY DIFFER FROM LEGISLATIVE MATTERS
The primary role of the City Council is legislative. With legislative actions anyone can comment on the merits of the proposed law. City Council members may receive evidence from many sources including citizen input in person, by phone, or email and may consider any or all of that evidence in making their decision.
On occasion, however, the City Council is confronted with a quasi-judicial matter, and is required to operate as a panel of “judges” rather than as legislators. In contrast to legislative actions, in quasi-judicial matters, all of the evidence that may be considered by the Council must be presented in the public meeting. In these cases the Council is not making new law rather they are applying existing law to specific facts.
WHY THE “JUDGES” CANNOT DISCUSS QUASI-JUDICIAL MATTERS
Just as a judge in a civil or criminal case cannot speak to the one party without the other party or parties present, the “judges” on the City Council are prohibited from obtaining evidence from either side of the dispute outside of the public meeting. This rule, referred to in legal terms as “ex-parte” communication, has been developed over the years to ensure that everyone with an interest in the case, and all members of the decision making body, hear the same evidence at the same time, from the same sources.
As frustrating as this process may seem to be to the citizenry it is important to remember that this rule is designed to protect the rights of all involved, applicants, opponents, and other interested parties, thus affording the opportunity for a fair hearing before unbiased decision makers.
The Idaho Supreme Court has squarely addressed this issue ruling that ex parte contacts by city council members considering a quasi-judicial matter violated the constitutional right to due process. Thus City Council members should neither initiate nor consider ex parte communications concerning a pending action.
If and when a Council member does receive information about a case outside the public meeting, whether solicited or not, the member is expected to disclose the communication, in as much detail as possible, to the entire Council at the beginning of the public meeting. If the Council member sincerely believes that the ex parte communication did not affect their ability to decide the case fairly the member can participate in the hearing after making the disclosure, otherwise the member must “recuse” or remove themselves from the discussion and the vote.