[bouldercouncilhotline] Hotline: Reminder: Quasi-Judicial Procedures

[cmosupport at bouldercolorado.gov]

Sender: Gehr, David

Dear Council Members:

The CAC requested that I provide the council with a reminder about considerations associated with quasi-judicial decision making.   The council is about to embark upon three hearings on matters that it has called up from the Planning Board and the Landmarks Board.

For quasi-judicial hearings, the council acts as judges of an application.  This is different than its more typical legislative role  When sitting in a quasi-judicial capacity, Council sits like a judge or jury in a legal case.  Facts are presented and pre-existing principles of law are applied. As in a legal case, a quasi-judicial decision must be based upon evidence that is presented at the hearing.   You will be applying a set of facts and determining if it meets the requirements of existing laws.

In quasi-judicial hearings it is essential that everyone - those who agree with the outcome and those who don't - feel that the process has been fair and impartial.  For that reason, relatively standard recommendations are utilized by those making quasi-judicial decisions.  Those recommendations are described below.    The following are relatively standard guidelines that may be useful to Council members as they sit in the role of judges in quasi-judicial matters:

 1.  When members of the public express their desire to share substantive views with individual Council members with regard to upcoming hearings, it may be helpful to suggest that they attend the upcoming quasi-judicial hearing so that all of members of the Council can benefit from the citizen input.
 2.  To the extent that ex parte communications cannot be completely avoided, careful notes should be kept of the content of such communications so that the information can be shared with all members of the Council.   Additional material on ex parte contacts are described below.
 3.  Each Council member should be prepared to disclose the nature and extent of any ex parte communications that do occur.
 4.  Any written materials received by any Council member relevant to the upcoming hearing should be provided to City staff for inclusion in the materials that are forwarded to all Council members.  That procedure will ensure that such materials are formally made part of the record and can be considered by all decision makers and parties to the upcoming hearing.
 5.  At the upcoming hearing, it may be helpful to remind the public of the fact that the decisions that will be made by Council are constrained by the criteria that Council is mandated to utilize.
 6.  Council members should endeavor to evaluate each of the quasi-judicial decisions presented to them by the criteria that are relevant to that decision and not by their own personal desires for the site.  This can be difficult, but it is what our laws require.
Ex Parte Contacts

There are special rules relating to so-called "ex parte" communications in quasi-judicial hearings.  Our code explains this subject as follows:
"No ex parte material or representation of any kind or any other communication outside the hearing shall be considered by the agency or hearing officer conducting the hearing unless it is fully disclosed on the hearing record and an opportunity is given for comment thereon at the hearing."  Section 1-3-6, B.R.C. 1981.

Read strictly and narrowly, this language only requires disclosure of material or representations that will be "considered" by any Council member. However, because the avoidance of any appearance of impropriety is central to the credibility of the system, quasi-judicial decision makers typically try to disclose all significant outside information received with regard to a matter before them.

When disclosing any ex parte communications, Council members should disclose the full content of those communications. It is essential that all Council members know every fact, allegation, or contention that will be considered or weighed by any individual Council member with regard to the upcoming quasi-judicial hearing.

If you have any questions, please feel free to call Tom Carr or me.

David Gehr, Deputy City Attorney
Boulder City Attorney's Office
P.O. Box 791
1777 Broadway
Boulder, CO 80306
ph. 303 441-3020
fax. 303 441 3859
gehrd at bouldercolorado.gov