The quasi-judicial process and citizen access to the City Council
One of the most misunderstood aspects of local government is the quasi-judicial process, and the limits that process imposes on citizen access to elected representatives. Residents who are active in their community and who are accustomed to contacting City Council members to discuss local affairs, often find it hard to understand why they cannot communicate with officials about certain public matters. This article is designed to provide answers to some of the most frequently asked questions about the quasi-judicial process.
The definition of quasi-judicial
Colorado courts have defined quasi-judicial actions as those which: generally involve a determination of the rights, duties or obligations of specific individuals on the basis of the application of presently existing legal standards or policy considerations to past or present facts which are developed at a hearing and conducted for the purpose of resolving the particular interests in question. In simpler terms, a quasi-judicial case is one in which the Council members are acting as judges, rather than legislators; the Council is not making new laws, but applying existing laws to specific facts concerning one person-or a small number of people-rather than the entire City, at a public hearing.
The most common quasi-judicial cases are rezoning decisions affecting an individual property or a small number of properties. Subdivision applications, special-use reviews and variances (heard by the Board of Adjustment) are other examples of quasi-judicial processes.
How quasi-judicial matters differ from legislative matters
The primary role of the City Council is legislative; i.e., the development and implementation of laws and policies that apply citywide. Examples of legislative action include the adoption of new zoning regulations or amendments to Municipal Code provisions concerning parking restrictions on public streets. With legislative actions, a public hearing is frequently held, during which anyone can comment on the merits of the proposed law; however, the “legislators” on City Council may also obtain evidence from other sources, including citizen input received in person, by phone or email. Members may consider any of that evidence, as well as their own personal beliefs and biases, in deciding whether to adopt the legislation. On occasion, the City Council is confronted with a quasi-judicial matter, and members are required to operate as a panel of “judges,” rather than as legislators. In quasi-judicial matters, all the evidence that may be considered by the Council must be presented at the public hearing. This procedure is required to afford due process to those individuals who may be affected by the decision.
Why the “judges” cannot discuss quasi-judicial matters
Just as a judge in a civil or criminal case cannot speak to one party without the other party, or parties, present, the “judges” on the City Council are prohibited from hearing evidence outside the public hearing. This rule, referred to in legal terms as regulating “ex parte” communication, has been developed to ensure that everyone with an interest in the case, and all members of the decision-making body, hear the same evidence at the same time, from the same sources. Ex parte communication includes oral communication, along with written, electronic and graphic communication. The rule prohibiting “ex parte” communication can be frustrating to citizens who assume they always have access to their elected officials. But, it is important to remember that this rule is designed to protect the rights of all involved – applicants, opponents and other interested parties – affording the opportunity for a fair hearing before unbiased decision makers. If, and when, a Council member receives information about a case outside the public hearing, the member is expected to disclose the communication, in as much detail as possible, to the entire Council at the beginning of the public hearing. If the Council member sincerely believes that the “ex parte” communication did not affect his or her ability to decide the case fairly, impartially and based solely on the evidence presented at the hearing, the member can participate in the hearing after the disclosure; otherwise, the member must “recuse,” or remove, him or herself from the discussion and the vote.
How citizens can communicate their concerns to the City Council in quasi-judicial cases
The public hearing is an opportunity for anyone to express his or her views to the City Council on a quasi-judicial matter. The City posts the time, date and place of every public hearing in the designated location at the Lakewood Civic Center. The information is also provided on this website. If you are unable to attend the public hearing, you may submit your comments in writing, preferably seven days before the hearing. All written comments are conveyed to the City Council members and become part of the record of the case, along with the testimony and other evidence presented at the public hearing.
The consequences of improper ex parte communication
Adhering to the rules governing quasi-judicial proceedings is not simply a matter of the city honoring long-standing legal traditions. When a decision-maker engages in ex parte discussions about a case and then proceeds to participate and vote on the matter without making the necessary disclosure, anyone adversely affected by the decision has the right to appeal the decision to district court. Appeals from quasi-judicial decisions can be difficult to win because the court gives deference to the local government’s interpretation and application of its own laws. Nevertheless, if the appealing party can produce evidence showing that the governing body failed to provide due process, the likelihood of the decision being vacated and the matter being sent back to City Council increases. Holding a second hearing on a single matter would obviously result in significant expense and delay, to say nothing of the negative press the City would inevitably receive from local media outlets.