Ex Parte Contact: Back Room Lobbying Shouldn't Be Permitted

One of the more perplexing mysteries over the years I have practiced has been the debate about lobbying administrative bodies. I have always argued that such practices were unethical and should not be tolerated. However, it is true that there is precious little guidance in the context of local administrative decision-
making. At the state level, there is a statute that forbids ex parte contact with administrative law judges or agency members. Tenn. Code Ann. § 4-5-304(c). There is no similar prohibition at the local level, unless the local government adopts one itself, something I have never seen in my practice.

A little over a year ago, the Attorney General was posed a question concerning this issue. The opinion does not involve zoning or planning but a similar administrative proceeding, in this instance, one which would be considered by the local legislative body (as in a PUD). The AG concludes that to permit ex parte contact with persons involved in an administrative proceeding would be a violation of procedural due process and strongly recommends against such contact. The AG opinion, #09-02, dated January 9, 2009 may be found here.

Because the city council would be acting in a quasi-judicial capacity at such a hearing, it would be required to comply with procedural due process requirements including the right to a fair hearing before an impartial tribunal. If city council members speak to a party to the proceeding or to affected representatives of an industry or an affected individual about the fee increase, while a challenge to the fee increase is pending, these communications will likely be considered ex parte communications by a court reviewing the decision of the city council. An ex parte communication is defined as a “generally prohibited communication between counsel and the court when the opposing counsel is not present.” Although this definition refers to communications to a court, reliance on ex parte communications by members of a decision-making body in quasi-judicial administrative hearing are also generally prohibited. The reason for this is that ex parte communications interfere with a party’s due process rights “to hear and comment on all of the evidence considered in a case.” Id. Courts have noted that ex parte communications can “shadow the impartiality, or at least the appearance of impartiality,” during a hearing and “may, in some circumstances, constitute a deprivation of due process of law.” [citations omitted]

Not all such communications of course are so prejudicial that the decision of the tribunal would be overturned. But surely this AG opinion, recognizing the impropriety of such conduct, is a fair warning to all hearing officials and boards that discussions with parties without the presence of other affected persons may serve to invalidate the proceedings. Ethically, I believe that attorneys simply should not be involved in such conversations. In the past, sheer fear of the tactics of opposing parties has driven some to make such contact, on the theory that the other side was doing it too. From my perspective, that's no excuse. It's not right. It shouldn't be done.

Before concluding, let me note that lobbying the local city council on a zoning change is entirely different. That's a legislative decision and those decisions can be lobbied. That just good old politics. But when the decision is akin to a court proceeding, such as for example, planned unit developments before a city council, no lobbying should be tolerated.

Nashville's Downtown Code

The Metro Council passed the Downtown Development Code last night. There is a page on the Planning Commission website with links to the Ordinance and the basic document. Click here.

Overall, the DTC is a step in the right direction: the emphasis is on regulation of form, and less on actual use. In the downtown area, surely a multiplicity of uses can be accomodated: it is more important to control the form while managing use compatitibility rather than the focus which usually has been almost entirely on use issues in the past.

There are a couple of interesting sidelights from a legal standpoint. First, the DTC is evidently excepted from the application of the non-conforming provisions of MetZo (§ 17.40). Since most of the property downtown is commercial or even industrial, the Tennessee Non-Conforming Property Act (Tenn. Code Ann. § 13-7-208) will undoubtedly apply, so the exception likely doesn't mean a whole lot, at least when a non-conforming building is being expanded under subsection (c). In the case of demolition and reconstruction, under subsection (d), the statute may require that the bulk standards be met and the new Downtown Code may apply. Those sections of the statue (Tenn. Code Ann. § 13-7-208(d) and (i)) have always been somewhat confusing; it has never been clear to me exactly how they intersect. Undoubtedly, the Courts will at some point, provide an answer to that question. On the other hand, there may be advantages to compliance with developmental bonuses.

The other interesting legal question is brought up by the section on "modifications," at page 14 of the DTC. The DTC establishes a Design Reveiw Committee (separate from and independent of the zoning board) which may grant modifications where "the intent of the standard is being met, the modifi cation results in better urban design for the neighborhood as a whole, and the modifi cation does not impede or burden existing or future development of adjacent properties."

That all sounds fine but I'd suggest there are several difficulties. First and foremost, these "modifications" sound like zoning variances. Under existing Tennessee law, that's the job of the zoning board, and perhaps more importantly, there are specific standards that must be met. There is a very real question as to whether the DRC can assume the function of the zoning board, and if so, whether it must comply with existing Tennessee law.

In addition, the selection process is very unusual: nomination by 4 private organizations and appointment by the Mayor, Vice-Mayor, Historic and Planning Commissions. If a private developer loses an application for a modification, an attack on the structure of the DRC seems very likely. It is worth remembering that the Planning Commission itslef is only an appointed body: it is not elected and the members are not required to be confirmed by Council. So to have an appointed commission appointing more folks with powers over private property, there seems to be a wide gulf between this system and the Tennessee enabling legislation. Alfred Bettman's idea was that the Planning Commission itself was mostly an advisory body: any decision routed through it was usually finally made by Council, an elected body. The one exception is subdivisions where the MPC makes its own decision: but those cases are much less controversial. It will be interesting to see how the new DRC fares given Tennessee law.

Finally, p. 15 of the DTC has 5 levels of compliance. The first 4 levels seem to be covered by the Tennessee Non-Conforming Property Act, discussed above. As long as the use of the property remains the same, it is not clear to me that an owner needs DRC's permission regarding construction. For example, under levels 3 and 4, where redevlopment takes place after demolition of less than 100% of the existing building, the statue surely allows expansion as of right. Perhaps an owner cannot demolish 95% of his building and still come within the terms of section 208(c), but no one knows where that line may be. If the owner takes down 75% of the existing structure, intends to overall expand the existing use of the property,does that come under 208(c), not requiring compliance with existing bulk regs, or 208(d), which may require such compliance? This will be an interesting area to watch.