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Legislating Ethics — Part 2 — Conflicts of Interest in Quasi-Judicial Proceedings


            Many sermons and discussions on ethics include a story from an episode of The Andy Griffith Show.  Today’s post is no different.

            In one of the later Andy Griffith episodes when Opie is older and the show was filmed in color, a man from “somewhere up north” robs a bank in Raleigh and is caught and jailed in Mayberry.  When his big-city lawyer comes down, Andy properly leaves the jail so they can confer privately.  Opie and his friend, Arnold, however, secretly tape the man’s confession on Arnold’s reel-to-reel recorder and try to give the evidence to Andy.  Andy erases the tape and won’t let Opie tell him what he learned, explaining in two separate scenes that in America we operate by due process of law and that we must trust the procedures we have and not circumvent them.  (The man confesses, but only after Opie and Arnold privately tell him they know where the money is hidden, that they have to give it to Andy, and he would be better off fessing up).

            Now, let me bridge that story with an update on laws related to conflicts of interest in land use decisions.

            On January 19th  I posted a blog entry on new legislation which requires city and county governing boards and boards of education and boards of sanitary districts to adopt a code of ethics.  I also mentioned in my most recent blog (American Government, American Pie) that 1) the only way to address unethical conduct in government is through aggressive education regarding ethical standards, and 2) some ethical standards, although general in nature, already have been codified for land use decisions made in a quasi-judicial context. 

What do the statutes say?

             Let’s visit General Statutes 160A-388(e1) (cities) and 153a-345(e1) (counties).  These statutes contain identical provisions within the Board of Adjustment enabling legislation that govern standards for recusal in all local boards when that board engages in a quasi-judicial proceeding:

             “(e1) A member of the board or any other body exercising the functions of a board of adjustment shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons’ constitutional rights to an impartial decision maker. Impermissible conflicts include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other  associational relationship with an affected person, or a financial interest in the  outcome of the matter. If an objection is raised to a member’s participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.”

             Today I will discuss just the first sentence only.  For background purposes, it’s a sentence of great importance.  Later this week I’ll discuss in detail the several “impermissible conflicts.”

            As a quick primer, “recusal” is a term denoting a board member’s nonparticipation in a decision-making process, typically because he or she is personally affected or otherwise has a conflict of interest.  When recusal is proper, the official must refrain from taking any action that would affect the ultimate outcome.  A “quasi-judicial proceeding” is a decision-making process that is guided by the rules of a courtroom to protect parties’ rights of due process.  A process becomes quasi-judicial when the board must “find facts” and apply laws or policies to those facts.

 What does due process have to do with ethics?

            Due process, whether practiced in Mayberry or Philadelphia, is a collection of procedural safeguards that ensure that a citizen’s constitutionally protected rights are protected when a government goes about doing whatever it is that a government does.  Typical safeguards include advance notice of action a government might take, an opportunity to appear at the hearing and a reasonable opportunity to speak, to see all information before the board, to present one’s own evidence and to cross-examine evidence provided by others.  Testimony must be under oath. 

 Competing loyalties or an impartial decision maker?

            In the statutory section above, the due process protection discussed is a citizen’s right to an impartial decision maker.

            Laypersons often think that the essential characteristic of impartiality is open mindedness. Although the ability to be open minded is critical, the more important focus is on freedom from competing loyalties (more often referred to as “conflicts of interest”).  A board member is elected or appointed to take care of the public’s business, not to use the powers bestowed by the people to look after him or herself (or the folks who happen to be related or connected in some other way).  In simplistic terms, a man cannot serve two masters.

            Some of the situations where impartiality would be compromised are codified (that is, written into law).   Each of these situations is painted with an exceptionally broad brush. A code of ethics goes beyond the broad brush of the statutes and provides guidelines for proper conduct. It should be the purpose of an ethics code and ethics education to break these situations down into their many component parts for deeper understanding and practical application. 

            Stay tuned for this detailed treatment in a later post.  In the meantime, I’ll keep my eyes glued to late-night TV for more illustrations from Andy Griffith re-runs.

            [To read previous blog posts, simply continue to scroll down or click on a category of interest in the right hand column.  To subscribe, simply click the “sign me up!” button above.  If you learned something, please forward this link to others who also might benefit.]

2 Comments leave one →
  1. marianne Royle permalink
    02/14/2010 4:01 pm

    Does this refer to ANY governmental body meeting, for example, a regular meeting of the County Commissioners? Or is it just referring to a “hearing”, and what would be an example of this?
    I am particularly interested in this because of the rule in my county which does not allow citizens to speak to an Agenda item except at a meeting BEFORE the item is scheduled – making it impossible or very difficult to speak.

  2. Tom Terrell permalink*
    02/15/2010 12:08 pm

    You ask a good question. First, elected boards are not required to allow citizens to speak on every item on their agenda. Your only option in that circumstance is to use the legally required open comment period.

    As to types of decisions, elected and appointed boards make four types of decisions. Legislative, advisory, administrative and quasi-judicial. The safeguards of due process only apply to quasi-judicial hearings where a board must make findings of fact and applies those facts to legal standards. In those hearings, due process gives you a right to speak whether it is a zoning case or not. However, if it is a zoning map amendment or zoning ordinance amendment, you have a right to speak during the hearing as a matter of law, even if it’s not quasi-judicial. You have this right by statute.

    Since I mentioned them, an advisory decision would be a recommendation (such as a planning board recommending a decision to the commissioners). An administrative decision is one where there is very little discretion and the only question is whether something complies with the law, such as whether a subdivision plat meets the specific requirements of setbacks, density, access, etc. A legislative decision is one where an elected body may exercise wide discretion.

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