1 Draft Ex Parte Communication
Purpose
Principles of fundamental fairness and due process of law require that City decision- makers conduct quasi-judicial proceedings in an open, objective, and impartial manner, free from undue influence and the abuse of power and authority. Communications with parties outside of an official proceeding can lead to doubts about the fairness of the proceeding and the impartiality of the decision-makers. Establishing a policy that provides guidance and clear procedures regarding such communications promotes impartial, fair, and transparent decision-making.
Statement of Policy
1. This policy applies to quasi-judicial proceedings. A quasi-judicial proceeding is a proceeding in which the decision affects the specific rights or interests of an individual or entity based on the decision makers' application of the governing law to specific facts.
Quasi-judicial hearings are subject to federal and state due process, the fair hearing requirement of California Code of Civil Procedure section 1094.5, and additional requirements applicable to particular hearings. Quasi-judicial proceedings may involve land use permits, license revocations, nuisance abatements, and certain evidentiary proceedings.
2. This policy does not apply to legislative acts. A legislative act establishes a regulation or policy to be applied in all future cases and the ways and means of accomplishing it.
Legislative acts include the adoption of ordinances or land use plans, such as general plans or specific plans.
3. Parties appearing before the City of Chula Vista (City) for a quasi-judicial proceeding deserve to have their issues heard in an open, transparent, and fair process.
4. Ex parte communications are substantive oral or written communications between an interested party and the decision-maker regarding a quasi-judicial proceeding which take place outside of a noticed hearing on the matter and without all the parties to that
2 proceeding present. Ex parte communications can be written communications received by a decision-maker, conversations with a decision-maker, or independent factfinding by a decision-maker, including site visits.
5. Ex parte communications should be avoided because they can bring into question the impartiality and fairness of the hearing process. This is especially true of Ex parte communications that suggest a decision-maker has assisted project proponents or opponents in formulating and advocating their positions.
6. For quasi-judicial proceedings involving land use decisions, independent site visits by a decision-maker may be useful for the decision-making process. In such cases, the site visit must be disclosed at the public hearing and indicate who was present and what was discussed. Site visits should not occur while a project proponent, opponent, or any other interested party is present. When an Ex parte communication occurs, information regarding the communication should be fully disclosed so that all interested parties are aware of their communication and have an opportunity to explain or rebut the information as necessary.
Procedure
1. This policy shall apply to City decision-makers in any quasi-judicial proceeding including, without limitation, City Council Members and members of all boards and commissions.
2. The City Clerk in conjunction with the City Manager and the City Attorney will identify agenda items involving quasi-judicial decisions on the agenda by prominently marking the item as such. Failure to identify an item shall not be cause for a continuance.
3. The presiding officer at a public hearing involving a quasi-judicial decision will ask each member of the decision-making body to disclose any ex parte communications prior to the time for receipt of public comment.
4. Disclosure of ex parte communications may be made verbally and should include the following information as applicable:
a. The type of communication, including whether any written or other materials were provided to the decision-maker;
3 b. When and where the communication took place;
c. Who was involved in the communication with the decision-maker; and d. The substance of the information was disclosed to the decision-maker.
5. If a decision-maker received any written or other materials as part of an ex parte communication, those materials should be provided to the City Clerk's office and included in the record of the proceedings. If the materials are no longer available at the time of the hearing, the decision-maker should provide the City Clerk's office with a description of the materials received and an explanation of why they are no longer available to include in the record of the proceedings.
6. The record in a quasi-judicial proceeding may only include evidence presented during the hearing and on the record at the hearing. Ex parte contacts occurring after a public hearing is closed and before a final decision is rendered are prohibited because there is no opportunity for rebuttal.