If American Idol’s Simon Cowell sat on your city council or county commission, would he be a help or a hindrance to ethical decision-making?

             As someone who seems to be swayed by no outside opinion or influence, my guess is that, from a consideration of ethics, he would be a help.

             In past posts I’ve discussed a board’s responsibility to be impartial when engaging in a quasi-judicial decision (as opposed to a legislative decision, where impartiality is not really the issue).  Impartiality is a hallmark of one’s constitutional right to an unbiased tribunal.  Thanks to N. C. General Statute sections 160A-388 and 153A-345, some of the conflicts that impair impartiality are codified.

              Let’s poke around the unexplored corners to see what some of these conflicts are and how they might be identified.  But first, let’s repeat here the statute in question:

                 (e1) A member of the board or any other body exercising the functions of a board of adjustment shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons’ constitutional rights to an impartial decision maker.       Impermissible conflicts include, but are not limited to, a member             having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter. If an objection is raised to a member’s participation and that member does not recuse himself or herself, the remaining members shall by majority vote rule on the objection.

 A fixed opinion

            Psychologists and jury selection experts refer to a dynamic often termed the “Rule of Primacy,” which goes something like this: when making a decision, a person tends to continue believing what he or she first believed. 

             Facts and evidence often have marginal significance as jurors’ and board members’ brains assemble and interpret (or ignore) facts to prove their original beliefs, rather than to form beliefs later based upon facts first acquired.  Cases in point: except in the very rarest of circumstances, there are no “facts” that will persuade a strong conservative to become a liberal and no facts that will persuade a strong liberal to become conservative.

             Thus, a board member having a fixed opinion not susceptible to change is a big no-no.  The problem is how to identify those fixed opinions and police them.

             Board members with strong (fixed) opinions will either disingenuously claim to have an open mind or, just as common, deceive themselves into thinking that they really can be objective.  Even board members who have staked themselves out with the media and constituents will claim at the beginning of a hearing that they will be objective.  Until, that is, it’s time to press the “yea” or “nay” buttons on certain findings of fact, and then, of course, they will have been “swayed” by the evidence they chose to find probative.

             The only thing an applicant or opponent with standing can do is to request that the board member recuse himself or herself.  If they refuse, the case is made to the entire board and it decides.

             The process sounds incredibly easy.  But the typical dynamic of local, lay boards, in reality, makes such requests for recusal sound like accusations of a capital crime.

 Undisclosed ex parte communications

             For reasons I’ve never known, modern-day lawyers have hung onto some Latin words and phrases while discarding others.  Ex parte has no English equal.  An ex parte communication is, broadly described, a private conversation between the decision maker and one of the litigants.  The problem with ex parte communications is that information is exchanged that is not subject to cross-examination.

             Cross-examination is a vehicle – often the sole vehicle – for exposing evidence as flimsy, sham, false or misleading when, upon first presentation, it might seem believable and convincing.

             The reason for requiring disclosure of ex parte communications is to provide other interested parties an opportunity to discover what was said so that those claims can be cross-examined or rebutted.

 A financial interest in the outcome of the matter

             The standards for recusal are lower on a mere policy-making board or an elected board where the decision is legislative. Once the decision is quasi-judicial the essential question is how much of a financial interest a decision-maker can have before his or her ability to be impartial is impaired.  There are no objectively determined legal presumptions of bias similar to using a breathalyzer to establish legal presumptions of impaired driving.

             The standard ought to be whether a reasonable person would be influenced by the financial interest in any manner. 

             Percentage of ownership in an affected company is unreliable.  A board member’s .0001% ownership of Exxon would be enough to retire on very comfortably.  A 100% interest in a small company in Chapter 7 bankruptcy might have no affect on the person at all.

             The problem is that, all else being equal, evidence in most quasi-judicial hearings could go either way.  What would it take to sway somebody?  Or, better asked, what would make a reasonable person wince?  If an applicant placed a $5 bill in front of each board member and said “you find facts in my favor and this money is yours” we would all scream about the corruption of the process.  So, would treating the board member to lunch at McDonald’s earlier that day be the same thing?

             The more difficult questions involve contingent financial interests.  For example, what if a board member believed that granting a special use permit to this applicant might possibly have a positive effect on land he owns nearby, such as allowing a new cell tower on tract A so that the board member’s proposed subdivision on tract B can be advertized as having wireless coverage.

             And what about someone who doesn’t have a strong fear that their boss’s opposition to a project would cause them to be fired if they voted the wrong way, but they do at least wonder if the wrong vote would affect a raise, a promotion, a chance to lead a project, or some other intangible perk?

             Cartoon artists have for decades used the clichéd dollar signs in place of pupils to signify that the drawn character was affected by financial interests.  Any time a dollar sign would or could appear in someone’s eyes for any reason, recusal is arguably appropriate.

             The remaining category that creates an impermissible conflict as a matter of law is “a close familial, business, or other associational relationship with an affected person.  I’ll save discussion of that category for Installment 4 in this series on legislating ethics.

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.