Ex Parte Communications


Below is the legal opinion rendered by Village Attorney Dexter Lehtinen regarding Ex Parte Communications and how they apply to the Village Council as more specifically related to zoning matters.

MEMORANDUM

To:       Village Councilmembers and Village Manager, Village of Palmetto Bay

From:  Dexter Lehtinen, Village Attorney, Village of Palmetto Bay

Re:        Meetings with Landowners and/or Potential Developers          

Date:     June 26, 2017

SUMMARY

          (1)  As a legal matter, individual Councilmembers are permitted to meet with landowners and potential developers, such as the owner and/or potential developers of the Old Cutler Power Plant site owned by Florida Power and Light Company.

         (2)  Councilmembers should be prepared to disclose such meetings (and the date, participants, and contents of such meetings) if any later action by the Village Council is determined to be quasi-judicial in nature.

          (3)  In light of expressed desire of many Village residents for more transparency than strictly required by law, the wisdom of such meetings is not a subject of this memorandum.

DISCUSSION

          Individual Councilmembers are always free, as a legal matter, to meet with any individual or entity to discuss public business.  Of course, such a meeting must not include two or more Council- members at the same meetings.  In addition, Councilmembers must not discuss among themselves the contents or results of such a meeting (except, of course, in a publicly-noticed Council meeting).

          Whether members of the public view such “secret” meetings favorably or unfavorably is not a legal question.  Rather, the public perception of such meetings is a legitimate political question for resolution in the political forum, rather than the legal forum.

          If later Council action is classified as quasi-judicial in nature, Councilmembers should be prepared to disclose the meeting to the public (date, participants, and contents, along with any written material used in the meeting), pursuant to Florida Statute 286.0115 and Village Code section 2-106(c).  F.S. 286.0115 allows local government to adopt a disclosure ordinance, which eliminates the “presumption of bias” (a due process violation) which would otherwise attach to such meetings. For convenience, a more detailed discussion of Village Code section 2-106(c) is attached as a separate item for general reference.

Neutral Decision-makers
And Ex Parte Communications
In Quasi-Judicial Proceedings

Dexter Lehtinen/6-17

          Due process principles requires that the decision-makers on the body holding a quasi-judicial hearing be neutral and unbiased.  Such decision-makers should not have decided the issue in advance of the hearing and should not have announced their position in advance of the hearing.  Such action demonstrates an opinion or bias formed in advance of the hearing, (prior to hearing evidence in the hearing) and a substantial likelihood that the decision will not be based solely on the hearing record.  All decisions are supposed to be based exclusively on competent substantial evidence presented at the hearing.

          Ex parte communications regarding a quasi-judicial matter (communications by anyone, not just an applicant, which occur outside of the hearing) create a presumption of prejudice, according to court rulings.  Prejudice (and bias) can invalidate a quasi-judicial decision.  However, the Florida Legislature has allowed local governments to adopt a procedure which eliminates the presumption of prejudice from ex parte communications.  F.S. 286.0115. 

          Palmetto Bay has adopted an ex parte communications code provision, following F.S. 286.0115.  The Palmetto Bay Code, Section 2-106(c), provides that an ex parte communication on a quasi-judicial matter "shall not create a presumption of prejudice providing the following disclosure is made":

          "(1)  ....[T]he name of the communicator, and the time, place, and substance of the communication.  The disclosure shall be made part of the record before final action is taken on the matter."

          "(2) ...[A] written communication that relates to a quasi-judicial action pending before the official shall be made a part of the record before final action is taken on the matter."

          "(3)  A Village official may communicate with an expert witness, village staff member, or consultant, or conduct an investigation, make site visits, and receive expert opinions regarding quasi-judicial action pending before him or her, provided that the activities and the existence of the investigations, site visits, or expert opinions are disclosed and made part of the record before final action is taken on the matter."

          "(4)  Disclosure, either written or oral, made pursuant to subsections (c)(1), (2),  or (3) of this section must be made before or during the public meeting at which the vote is taken and must be made part of the record.  Persons who have opinions contrary to those expressed in the ex parte communication shall be given a reasonable opportunity to refute or respond to the communication." 

         Disclosures of ex parte communications pursuant to F.S. 286.0115 and Village Code Sec. 2-106(c), in order to rebut the presumption of prejudice, do not contribute to competent substantial evidence, because affected parties have the right to cross-examine witnesses.  Such disclosures are made part of the "record" only for the purposes of rebutting the presumption of prejudice. 

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