HomeMy WebLinkAboutCC Policy No. 116 - Procedures for Disclosure of Ex Parte Contacts August 15 2023CITY COUNCIL POLICY
CITY OF NATIONAL CITY
AMENDED: August 15, 2023 ADOPTED: February 6, 2007
POLICY # 116 TITLE: Procedures for Disclosure of Ex Parte Contacts
Purpose
To establish a procedure, applicable to the City Council and all City Boards, Commissions,
and Committees, for the disclosure of ex parte contacts, and to require such disclosure as a
matter of City policy.
Background
An ex parte contact or communication occurs when, prior to considering a matter on a public
meeting agenda, a member or members of the City Council, or one of the City's Boards,
Commission, or Committees, receive information, whether oral, written, or otherwise,
pertaining to that matter outside the public meeting.
In making certain types of decisions, typically dealing with an individual or an applicant for a
permit, and applying rules or laws to a specific set of facts, the decision-making body is said
to be acting in a "quasi-judicial" capacity. e.g., similarly to a court. Examples of quasi-judicial
proceedings are applications for conditional use permits and variances, and personnel
disciplinary matters.
In quasi-judicial proceedings, due process requires that the decision-maker be impartial and
without bias. A personal interest or involvement in the outcome of such a matter or with any
participants, which is unrelated to the merits, requires disqualification of the decision-maker.
As examples, appellate courts have found impermissible bias on the part of City
Councilmembers in the following cases: Mennig v. City Council of the City of Culver City (City
Council became personally embroiled in controversy over Police Chief’s termination) and
Clark v. City of Hermosa Beach (Councilmember’s history of personal animosity to the
applicants made him "not a disinterested, unbiased decision- maker").
Considerations of due process in quasi-judicial proceedings also require that the decision not
be made based upon information received outside of the administrative hearing. This concept
is often referred to as the prohibition against ex parte contacts. For example, in Safeway
Stores v. City of Burlingame, the court held that opponents of a proposed parking district
did not receive a fair hearing where members of a City Council held conversations with
affected property owners outside the hearing and made trips to the area for the express
purpose of making determinations of disputed facts. Similarly, in Jeffrey v. City of Salinas,
a Councilman talked with property owners concerning the advantages of a parking district
and made a personal visit to the area. The court concluded that the Councilman’s vote should
not be counted.
In the event an ex parte contact occurs, disqualification of the official making the contact can
be avoided and cured by disclosure of the contact at the time of the Public Hearing. (Jeffrey
v. City of Salinas).
CITY COUNCIL POLICY
CITY OF NATIONAL CITY
AMENDED: August 15, 2023 ADOPTED: February 6, 2007
POLICY # 116 TITLE: Procedures for Disclosure of Ex Parte Contacts
Policy
1. Members of the City Council and of the City's Boards, Commissions, and Committees
shall keep a written record of all ex parte contacts, as that term is explained in this
Policy.
2. At the time an agenda item is called, and prior to any discussion of the item, any
member of the City Council or of a Board, Commission, or Committee who has
received an ex parte contact pertaining to that item shall disclose the occurrence of
that ex parte contact on the public record.
3. City staff shall endeavor to inform all persons intending to appear before the City
Council or any of the City's Boards, Commissions, or Committees of this Policy.
4. Under no circumstances shall a person make ex parte contacts with a majority of the
members of the City Council or of the City's Boards, Commissions, or Committees in
order to develop a consensus or a collective concurrence as to an item to be
considered and/or acted upon by the City Council, Board, Commission, or Committee.
Such conduct violates the Ralph M. Brown Act or SB 1439.
Related Policy References:
None.
Prior Policy Amendments:
February 6, 2007 (Resolution No. 2007-19) Established Policy
June 11, 2013 (Revised – No Resolution – Refer to Meeting Minutes)
October 8, 2013 (Resolution No. 2013-147)