Ex Parte Communications and Land Use Boards

By Paul G. Sanderson, Esq.

Q. What is an “ex parte" communication?
This is a Latin term that means “by or for one party." In this instance, it refers to communication between a land use board member and a person interested in an application, without other interested persons, other board members or the public being present.

Q. Are these types of discussions a problem for land use boards?
Yes, if an ex parte contact occurs, several different problems could arise when that contact is eventually disclosed.

1. Since other interested persons were not part of the discussion, disclosure makes those persons feel that the land use board member involved has a personal stake in the outcome, or is now biased against their position, or can no longer be neutral in considering the application. There will be pressure for the board member to disqualify himself or herself from the remainder of the case in accordance with RSA 673:14.

2. If the board member refuses to disqualify himself or herself, the other interested persons will feel that the person making the ex parte contact has had an unfair advantage in the process. If the decision is adverse to that person, the ex parte contact creates an issue for appeal to the Superior Court, using the argument that “due process" has not been provided. Alternatively, these other parties could start making ex parte contacts of their own, causing the board to lose control of its own procedure.

3. If any board decision has been reached as a result of the ex parte contact, the decision may be subject to attack as a violation of the Right to Know Law, RSA 91-A, with the possibility of sanctions imposed under that law.

4. Such contacts could cause conflict within the land use board, and among its members. If one or more members are disqualified, alternates must be found to take their place, which might make it very difficult to process the application in a timely and efficient manner.

For these reasons, ex parte contacts about a case are generally not allowed, except for answering questions about hearing procedures.

Q. I understand that as a member I shouldn’t seek to talk to applicants about a pending application outside of the hearing. Are there other situations that could cause a problem?
. Yes. Here are a few examples of how other situations, and the behavior of other persons, can cause an issue.

1. An applicant or an abutter sends a letter, or an e-mail, to every member of the board dealing with the substance of a pending application. The communication is not shared with other parties or the public.

2. Another elected or appointed official in your municipality, or in a neighboring municipality, talks to board members over the telephone, or writes a letter, or sends an e-mail to members of the board about a pending application. The communication is not shared with other parties or the public.

3. A consulting professional engineer, soil scientist or other person assisting either the applicant or another interested party prepares a technical report and recommendation on an issue, and gives it to every member of the board, but doesn’t file the original at the municipal office, or let other persons involved in the case know that the document has been provided to the board members.

In all of these situations, the land use board members are not attempting to have an ex parte communication, but because of the behavior of someone else, they have information not available to everyone participating in the case.

Q. Does this mean that a land use board member can never talk to citizens about land use issues outside of a meeting?
No. This issue only arises during the consideration of applications for judicial types of decisions as opposed to legislative type decisions. For the planning board, this means subdivision or site review applications. The planning board makes legislative decisions when it drafts the zoning ordinance, or any amendments to the ordinance, when it drafts its own regulations, when it creates the master plan, or creates the capital improvement plan. The zoning board of adjustment makes judicial decisions on applications for a variance or special exception, and has very few opportunities to make legislative decisions. It is important for the members of the boards to protect their neutrality by avoiding discussions about actual cases when judicial type applications are pending before them.

Q. I am the chairperson of a land use board. What am I supposed to do to prevent ex parte communications, and the problems that can result?
There is little that a board member or chairperson can do to stop applicants, citizens and consulting professionals from attempting to make these types of contacts. These applications have important consequences for applicants and abutters, and it is natural for them to ask questions, and seek advice on how best to advocate for their positions. However, there are things that the boards can do for themselves and for any staff members or consultants that may be assisting the board.

1. Raise the issue within the board itself, and emphasize to the members the potential problems that could arise if they participate in these types of conversations.

2. Adopt written rules of procedure for the board, which is actually a statutory requirement for all boards imposed by RSA 676:1. Clear procedural rules reduce the number of contacts needed with board members, and assist persons who deal with the boards by telling them who to contact, how and where papers and other information should be filed with the board, and when information must be received in order to be considered at a public meeting.

3. Clear procedural rules can also instruct board members on how to respond to ex parte contacts, and the process that should be followed in the event an ex parte contact does occur. For example, if the contact is by telephone, board members shall politely but firmly refuse to discuss any issues regarding the pending case. If the contact is by e-mail, the message will be forwarded to the chair, and a decision made whether to share the information with all parties, or otherwise include the contact information in the record of the case.

4. If you are fortunate enough to have staff or consultant assistance, use these persons to field the questions that arise. These persons are not charged with making the actual judicial type decisions, and their assistance can be invaluable in the effort to keep the timely processing of applications on track.

5. Avoid the situation where a single member of the land use board meets with applicants or their representatives outside of a public meeting of the entire board. While it may be necessary for a planning board chairperson to accept applications and develop procedural schedules in municipalities without staff assistance, such contacts raise a risk of ex parte communications about the substance of an application. If the chairperson deals individually and privately with applicants on these substantive issues, all of the problems inherent in ex parte communications will likely arise.

Q. Although we tried to prevent an ex parte contact, an abutter just sent all of us on the board a long e-mailed message with lots of attached documents. Some of us have read it, and some of us have not. There is no indication that the applicant received a copy. What do I do now?
Every case must be evaluated on its own facts. Sometimes people simply will not stop trying to improperly influence board members in this manner. It may be necessary to completely strike their material from the record, or take other action to impose a consequence for this misbehavior. If you think that the information will have a large impact on the decision, you may wish to seek legal advice about how to handle the material. In general, however, these types of contacts can be cured by disclosing all of the material to all interested parties in the case, and affording the other parties an opportunity to react to them either by taking additional live testimony, or giving them time to create a written response. The key to curing the issue is to make the contact public, and provide a reasonable time for everyone else to react and have their say on the material. That is, provide “due process" by giving everyone notice of all aspects of the proceeding, and an opportunity to be heard and to confront all of the evidence that the board will consider in making its decision.

Q. We are a volunteer board, and we don’t have full time staff. Where can we get more information to help us with our procedures, or obtain training on these issues?
Help is available! Land use board members may review the materials provided online by the Office of Energy and Planning (OEP) at www.nh.gov/oep/resources.html. This site offers a wealth of publications and resource materials on these topics. OEP also sponsors two conferences, one in the spring and one in the fall, dedicated to board member training. The New Hampshire Association of Regional Planning Commissions (NHARPC) www.nharpc.org and each of the nine Regional Planning Commissions, maintains a site with training materials and other data that will help land use boards fulfill their mission. The Local Government Center’s annual publication Knowing the Territory discusses the Right to Know Law and Conflicts of Interest in detail, and will help land use board members and chairpersons as they deal with those issues. The annual Municipal Law Lecture Series in the fall usually has at least one session devoted to procedures and other basic information for land use board members.

With all of this available for members, where is the help for non-professional staff? After all, it is these persons who often field the day-to-day questions from applicants, abutters and consultants. They are the ones who help make decisions about notices to be published in the newspaper, they draft the certified letters, and they take the minutes at the public meetings of the boards. They deal with members, chairpersons, selectmen, building inspectors and others within the municipal office. The NHARPC has recognized that they need procedural training and information that is different from the substantive information and training that the board members receive, and is developing a course specifically designed to meet this need.

The first session will be held on Saturday, January 12, 2008. More information about the curriculum will be released soon, but now is the time to support requests in the annual budget to obtain this assistance for these persons. The hope is to improve the processing of applications, reduce appeals and litigation arising out of procedural issues, and reduce the stress on these important participants in the process.