Thursday, June 30, 2011

More Coal Politics: Appearance of Fairness, Local Land Use and Elections

The issue of appearance of fairness has generated some interest in regards to the proposed coal terminal at Cherry Point, Washington. Jared Paben at the Bellingham Herald asks, "Should candidates for County Council give their opinions on the proposed Gateway Pacific Terminal?" 

If one looks at only RCW (Revised Code of Washington) 42.36.040 one would readily conclude that candidates can give their opinions. RCW 42.36.040 states "Prior to declaring as a candidate for public office or while campaigning for public office as defined by *RCW 42.17.020 (5) and (25) no public discussion or expression of an opinion by a person subsequently elected to a public office, on any pending or proposed quasi-judicial actions, shall be a violation of the appearance of fairness doctrine"

However, RCW 42.36.110 states "Nothing in this chapter prohibits challenges to local land use decisions where actual violations of an individual's right to a fair hearing can be demonstrated". 

I posed this question regarding Section 110 to a reputable attorney who had previously cited Section 040 as a simple answer that council candidates can give their position. He noted that Section 110 has not been used in an appellate decision to invalidate a county land use decision. But he did go on to say "I believe it’s there to assure that in an egregious situation, the courts can act".

The Municipal Research Council (MRSC) says this about Section 110: 

"Even though some conduct might not violate the statutory provisions of the appearance of fairness doctrine, a challenge could still be made if an unfair hearing actually results. For instance, although RCW 42.36.040 permits candidates to express opinions on pending quasi-judicial matters, if opinion statements made during a campaign reflect an intractable attitude or bias that continues into the post-election hearing process, a court might determine that the right to a fair hearing has been impaired even if no statutes were violated. 
The safest approach: avoid any appearance of partiality or bias.
Because it is often difficult to sort out the many functions of local decision-making bodies, a clear line cannot always be drawn between judicial, legislative, and administrative functions. If the proceedings seem similar to judicial proceedings then they probably warrant the special protections called for by the appearance of fairness doctrine." 

So opinions offered by candidates may come down to how egregious statements are for or against the coal terminal. My attorney friend offered some statements that he felt might be viewed as leading to an appearance of fairness issue and some that might be acceptable. The example he gave of unfairness was a bit over the top, "I don't care about the law, I oppose or I am in favor no matter what". But then some candidates can say goofy stuff and that is likely why Section 040 was written. The acceptable examples probably would not be acceptable to people that really, really want to know candidates positions and sounded mealy mouthed.  

I am not sure anyone really knows where the line on appearance of fairness from campaign statements lies. Court decisions on non political statements have brought some clarity. Stuff like financial gain, or secret meetings outside the record or telling people participating in the hearings they are wasting their time. But thus far nothing on statements made during political campaigns.

I can think of three reasons for the lack of court cases.

1) Since the Appearance of Fairness doctrine was developed by the courts a number of new land use laws such as the Growth Management Act have gone into effect that reduces the politics on land use decisions. There is still plenty of room for politics on land use policy, but much more precise local codes and processes constrain local electeds when they have to make land use decisions. The good old days of arbitrary decisions are no more. The end result could well be that someone running for office would say "I fully support the coal terminal at Cherry Point" only to find that the county staff and Hearing Examiner recommend denial as the permit does not meet the code or even more likely conditions the permit so heavily that the terminal would never be built. That council member would then have to some how figure out how the Hearing Examiner and staff were wrong and convince at least 3 other council members to follow. My own experience with that process even when it turned out I was right went down 6-1 wa-supreme-court-rules-in-favor-of-fire.   

2) Most elected officials are routinely briefed on Appearance of Fairness matters and most believe in being fair anyway. During any quasi judicial process in which I took part, great pains were followed to appear fair and when bias of any sort is expressed ahead of time it is usually by accident or out of ignorance and usually the official in question would recuse themselves. I know that I stepped aside twice when I was on the Council because I knew too much about a particular quasi judicial issue and that information was not part of the record and I felt unable to not be influenced by that information. Council members will routinely give statements before hearings that despite some accidental conversation they can still decide in an unbiased manner.

3) It is likely very rare that a quasi judicial issue becomes a campaign issue so the opportunity to test the apparent forgiving language of RCW 42.36.040 may not have taken place in the past. While no appellant court has overturned a land use decision based on appearance of fairness issues related to statements made during a political campaign, my attorney friend did not indicate that a case has ever been brought forward on this issue.

The appearance of fairness doctrine was initially established in Washington State by the courts, not the State legislation. RCW 42.36.110 appears to recognize this. 

The MRSC makes a number of recommendations regarding appearance of fairness including, "Strive to preserve an atmosphere of fairness and impartiality—even if a given decision may seem to be a foregone conclusion," and " Make sure decisions are made solely on the basis of matters of record."

Not bad advice for any community leader. Particularly when a community faces a divisive issue. 

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