Examining Planning Commissioner Conduct

Conclusions 18

• CL1 Page 1
  The Planning Department has not provided planning commissioners with any written training or educational materials concerning the due process requirements applicable to planning commissioners who are acting in a quasi-judicial role since April 2005. The Planning Commissioner's Handbook has not included any such materials since March 2000 and was not revised or updated to include such materials after April 2005. Since April 2005, at least three new planning commissioners have been appointed to the Planning commission. Public perception that planning commissioners are performing their quasi-judicial role in accordance with applicable due process requirements relating to fairness and an absence of actual bias or non-financial conflicts of interest would be improved if the public knew and understood that planning commissioners received education and training on these important issues from a Handbook or other materials which addressed them in detail.
• CL2 Page 1
  Ex parte contacts create a particularly difficult problem for planning commissioners because the potential consequences of ex parte contacts are significantly different depending on the role of the Planning Commission. When the Planning Commission functions in its quasi-legislative or policy role, ex parte contacts are not a problem. But, when the Planning Commission functions in its quasi-judicial role, ex parte contacts could create significant due process issues relating to bias and the right of an applicant to hear and respond to all evidence being considered by the Planning Commission in connection with his or her project. These due process issues have the potential to cause Planning Commission actions to be reversed by a reviewing court. Public perception of planning commissioner conduct would also be improved if the Planning Commission Rules of Procedure and its educational and training materials addressed in detail the due process concerns raised by ex parte contacts in the quasi-judicial role and provided planning commissioners with as much specific guidance as possible on methods for dealing with such concerns in a way that minimizes their potential adverse consequences.
• CL3 Page 1
  The planning commissioner whose conduct was the primary subject of this Grand Jury investigation came to the Planning Commission with substantial prior knowledge of and 2008-2009 San Luis Obispo County Grand Jury 13 significant involvement and experience in issues of land use planning and regulation, primarily from an environmental perspective. In the judgment of the Grand Jury, this knowledge, involvement and experience does not disqualify this individual from serving as a member of the Planning Commission. Such attributes are, in fact, desirable in any planning commissioner. These attributes would be expected to bring with them strongly held beliefs and positions on land use planning and regulation, but there is nothing illegal or improper about any planning commissioner bringing established beliefs or positions to bear on land use policy issues that are considered by the Planning Commission. Issues of land use policy are ultimately decided by the elected Board of Supervisors after an in depth review and recommendation by the Planning Commission. Supervisors are elected, at least in part, based on their established beliefs and positions concerning land use policy. It should come as no surprise that their appointees to the Planning Commission would generally have or reflect similar beliefs and positions. The difficulty created by appointing planning commissioners who have strong, established advocacy positions on land use planning and regulation from either an environmental or a development perspective is that these same planning commissioners must also function in a quasi-judicial role that requires them to be reasonably impartial, noninvolved reviewers when they hear and weigh evidence and make discretionary decisions on individual applications for land use permits. In the judgment of the Grand Jury, the stronger the established advocacy positions or beliefs of a planning commissioner from whatever perspective, the more difficult it is for the public to perceive that this same planning commissioner can make some discretionary land use decisions without an unacceptable probability of actual bias concerning the project. The Grand Jury believes that detailed and regular education and training of planning commissioners on the due process requirements described in this report is the best way to impress on planning commissioners the need for them to make a conscientious, good faith assessment of whether they have an actual bias concerning a project which is being considered by the Planning Commission in its quasi-judicial role. If a planning commissioner can fully and carefully assess all the facts and circumstances of his or her positions and beliefs as they relate to a project and can honestly conclude that there is no unacceptable probability of actual bias on his or her part about the project, that is all the public can expect. In the final analysis, this assessment can only be made by the individual planning commissioner and a definitive decision 2008-2009 San Luis Obispo County Grand Jury 14 as to whether or not the facts support that assessment can only be made by the courts. The Grand Jury concluded that the background and conduct of the planning commissioner discussed in this report raised a legitimate concern as to whether or not that planning commissioner had already decided to deny one or more applications for Conditional Use Permits before the public hearings on the applications. The Grand Jury cannot ever know if that was actually the case. FINDINGS4
• CL4 Page 1
  The Planning Commissioner's Handbook does not describe or explain that due process for quasi-judicial hearings includes a requirement that planning commissioners be reasonably impartial, noninvolved reviewers.
• CL5 Page 1
  The Planning Commissioner's Handbook does not describe or explain how ex parte contacts by planning commissioners may violate the due process requirements for quasi-judicial hearings. 4 In accordance with Section 933.05(d) of the Penal Code, the Grand Jury invited representatives of the two entities that are the subject of this report to come before the Grand Jury for the purpose of reading and discussing the findings and the narrative sections of this report relating to those entities in order to verify the factual accuracy of the findings and the narrative prior to their release. 2008-2009 San Luis Obispo County Grand Jury
• CL6 Page 1
  The Planning Commissioner's Handbook does not describe or explain the concept of a non- economic conflict of interest or how such a conflict of interest may violate due process requirements for quasi-judicial hearings.
• CL7 Page 1
  The 2005 revision to the Planning Commission Rules of Procedure deleted an explanation of how ex parte contacts by planning commissioners might violate due process requirements for quasi-judicial hearings and adversely affect the actions and decisions of the Planning Commission.
• CL8 Page 1
  Planning commissioners do not always include sufficient detail in their disclosures to provide adequate information as to the substance of their ex parte contacts as required by the Planning Commission Rules of Procedure.
• CL9 Page 1
  Ex parte contacts and a pre-hearing comment by one planning commissioner raised a legitimate concern that this planning commissioner had an unacceptable probability of actual bias by possibly deciding to deny one or more Conditional Use permit applications before the public hearings on the applications.
• CL10
  The Planning Department has not provided planning commissioners with any written training or educational materials concerning the due process requirements applicable to planning commissioners who are acting in a quasi-judicial role since April 2005. The Planning Commissioner's Handbook has not included any such materials since March 2000 and was not revised or updated to include such materials after April 2005. Since April 2005, at least three new planning commissioners have been appointed to the Planning commission. Public perception that planning commissioners are performing their quasi-judicial role in accordance with applicable due process requirements relating to fairness and an absence of actual bias or non-financial conflicts of interest would be improved if the public knew and understood that planning commissioners received education and training on these important issues from a Handbook or other materials which addressed them in detail.
• CL11
  Ex parte contacts create a particularly difficult problem for planning commissioners because the potential consequences of ex parte contacts are significantly different depending on the role of the Planning Commission. When the Planning Commission functions in its quasi-legislative or policy role, ex parte contacts are not a problem. But, when the Planning Commission functions in its quasi-judicial role, ex parte contacts could create significant due process issues relating to bias and the right of an applicant to hear and respond to all evidence being considered by the Planning Commission in connection with his or her project. These due process issues have the potential to cause Planning Commission actions to be reversed by a reviewing court. Public perception of planning commissioner conduct would also be improved if the Planning Commission Rules of Procedure and its educational and training materials addressed in detail the due process concerns raised by ex parte contacts in the quasi-judicial role and provided planning commissioners with as much specific guidance as possible on methods for dealing with such concerns in a way that minimizes their potential adverse consequences.
• CL12
  The planning commissioner whose conduct was the primary subject of this Grand Jury investigation came to the Planning Commission with substantial prior knowledge of and _____________________________________________________________________________ 2008-2009 San Luis Obispo County Grand Jury 13 significant involvement and experience in issues of land use planning and regulation, primarily from an environmental perspective. In the judgment of the Grand Jury, this knowledge, involvement and experience does not disqualify this individual from serving as a member of the Planning Commission. Such attributes are, in fact, desirable in any planning commissioner. These attributes would be expected to bring with them strongly held beliefs and positions on land use planning and regulation, but there is nothing illegal or improper about any planning commissioner bringing established beliefs or positions to bear on land use policy issues that are considered by the Planning Commission. Issues of land use policy are ultimately decided by the elected Board of Supervisors after an in depth review and recommendation by the Planning Commission. Supervisors are elected, at least in part, based on their established beliefs and positions concerning land use policy. It should come as no surprise that their appointees to the Planning Commission would generally have or reflect similar beliefs and positions. The difficulty created by appointing planning commissioners who have strong, established advocacy positions on land use planning and regulation from either an environmental or a development perspective is that these same planning commissioners must also function in a quasi-judicial role that requires them to be reasonably impartial, noninvolved reviewers when they hear and weigh evidence and make discretionary decisions on individual applications for land use permits. In the judgment of the Grand Jury, the stronger the established advocacy positions or beliefs of a planning commissioner from whatever perspective, the more difficult it is for the public to perceive that this same planning commissioner can make some discretionary land use decisions without an unacceptable probability of actual bias concerning the project. The Grand Jury believes that detailed and regular education and training of planning commissioners on the due process requirements described in this report is the best way to impress on planning commissioners the need for them to make a conscientious, good faith assessment of whether they have an actual bias concerning a project which is being considered by the Planning Commission in its quasi-judicial role. If a planning commissioner can fully and carefully assess all the facts and circumstances of his or her positions and beliefs as they relate to a project and can honestly conclude that there is no unacceptable probability of actual bias on his or her part about the project, that is all the public can expect. In the final analysis, this assessment can only be made by the individual planning commissioner and a definitive decision _____________________________________________________________________________ 2008-2009 San Luis Obispo County Grand Jury 14 as to whether or not the facts support that assessment can only be made by the courts. The Grand Jury concluded that the background and conduct of the planning commissioner discussed in this report raised a legitimate concern as to whether or not that planning commissioner had already decided to deny one or more applications for Conditional Use Permits before the public hearings on the applications. The Grand Jury cannot ever know if that was actually the case. FINDINGS4
• CL13
  The Planning Commissioner's Handbook does not describe or explain that due process for quasi-judicial hearings includes a requirement that planning commissioners be reasonably impartial, noninvolved reviewers.
• CL14
  The Planning Commissioner's Handbook does not describe or explain how ex parte contacts by planning commissioners may violate the due process requirements for quasi-judicial hearings. 4 In accordance with Section 933.05(d) of the Penal Code, the Grand Jury invited representatives of the two entities that are the subject of this report to come before the Grand Jury for the purpose of reading and discussing the findings and the narrative sections of this report relating to those entities in order to verify the factual accuracy of the findings and the narrative prior to their release. _____________________________________________________________________________ 2008-2009 San Luis Obispo County Grand Jury 15
• CL15
  The Planning Commissioner's Handbook does not describe or explain the concept of a non- economic conflict of interest or how such a conflict of interest may violate due process requirements for quasi-judicial hearings.
• CL16
  The 2005 revision to the Planning Commission Rules of Procedure deleted an explanation of how ex parte contacts by planning commissioners might violate due process requirements for quasi-judicial hearings and adversely affect the actions and decisions of the Planning Commission.
• CL17
  Planning commissioners do not always include sufficient detail in their disclosures to provide adequate information as to the substance of their ex parte contacts as required by the Planning Commission Rules of Procedure.
• CL18
  Ex parte contacts and a pre-hearing comment by one planning commissioner raised a legitimate concern that this planning commissioner had an unacceptable probability of actual bias by possibly deciding to deny one or more Conditional Use permit applications before the public hearings on the applications.

Agency Responses 1

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No Responses Found 2

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