An ex parte communication occurs when a board member in a quasi-judicial proceeding communicates, directly or indirectly, with any person or party in connection with a matter before the board, absent of notice and opportunity for all parties to participate. The term ex parte literally means “one-sided.”
A critical element of due process is providing every party involved in a case the same opportunity to present facts to the decision-making body. Boards and commissions are supposed to base their decisions on what was said at public meetings, hearings, "the record." This way all parties are fully apprised of the facts and no one gains an advantage through private conversations. This can be considered basic fair play. All members of a planning commission or board of adjustment have the right to hear everything that is said about the case. Everyone, including the applicant, and those who support or are opposed in a particular case also have the right to hear everything that is said about the case, and have the opportunity to rebut what was said, or endorse what was said. Private conversations outside of public meetings undermine this open exchange and fair play.
Nothing is more frustrating for the losing party than to have the impression that the other side prevailed through the use of “back door” politics.
Having said that, the law recognizes that it is simply impossible to avoid all contacts on all questions coming before the decision-making body. Board and commission members are appointed precisely because of their involvement in the community and understanding of the issues. It would be an unrealistic standard to meet if every ex parte contact resulted in disqualification of the board member or nullification of the action.
If such contact has taken place three steps should be taken by the board member to avoid giving rise to a legally-actionable claim:
1. End the communication. Explain to the individual that you cannot talk about matters currently before the board outside the public meeting.
2. At the hearing, disclose on the record the fact that the communication took place and share any substantive information that you may have received during the course of the contact.
3. The board member should indicate on the record whether or not the communication left him or her unable to base the decision solely on the evidence to be presented at the hearing, no longer unbiased. If he or she is unable to do so the board member must recuse himself from the proceedings. It is not sufficient to participate in the discussions and merely abstain from voting; nor is it appropriate to keep silent and abstain but remain seated at the board table.
Remember, the prejudicial effect of an ex parte contact is in the fact that the other side is not given an opportunity to respond or is unaware of the contact altogether. Ex parte contacts, unless they lead to an incurable bias in the decision-maker, are not detrimental to the proceedings if they are disclosed and the other side is given an opportunity to respond.
Gary D. Taylor, Iowa State University