Could a Bartow planning commissioner speak privately with residents before a quasi-judicial land-use hearing?

Plain-English summary

A Bartow planning and zoning commissioner asked whether a member deciding a land-use matter in a quasi-judicial capacity could speak privately with area residents before a hearing and, if so, whether the contact had to be disclosed before voting. The Attorney General's office offered informal comments because a majority of the commission had not requested a formal opinion. It did not know whether Bartow had adopted an ordinance or resolution under section 286.0115, so it did not give a definitive answer for Bartow.

The letter explained two different settings. Under Jennings v. Dade County, proof of an ex parte communication created a rebuttable presumption of prejudice, with a new hearing for an adversely affected person unless competent evidence showed the contact was not prejudicial. Section 286.0115 allowed a local government to adopt procedures removing that presumption. The letter said the presumption would appear to remain absent appropriate statutory procedures or an alternative process. For the quasi-judicial land-use procedures in subsection (2), the local ordinance or resolution had to be “identical to this subsection.” The letter emphasized that subsection (2)(c) said nondisclosure of an individual contact “shall not be presumed prejudicial” if those procedures applied. It also quoted the requirement that decisions rest on substantial, competent evidence in the hearing record regardless of such contacts.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later
AG opinions may have changed the analysis. Treat this page as historical context, not current
legal advice. Verify current law before relying on any specific rule, deadline, or remedy
mentioned here.

Common questions

Did the 2007 letter ban private conversations with residents?
It did not announce a blanket ban. It described the possible prejudice presumption and the effect of qualifying local procedures, without knowing whether Bartow had adopted them.

Did a commissioner always have to disclose a private contact before voting?
The letter noted that section 286.0115(2)(c), when the municipality had adopted the required identical procedures, did not require disclosure of an individual ex parte contact and did not presume nondisclosure prejudicial. The letter said the Jennings problem would appear to remain absent appropriate statutory procedures or an alternative process.

Could an affected applicant get another hearing?
Under the Jennings rule described in the letter, an adversely affected person was entitled to a new and complete hearing after proof of an ex parte contact unless the party opposing a new hearing showed it was not prejudicial. The letter did not decide the result of any particular contact.

What evidence had to support the land-use decision?
The letter quoted section 286.0115(2)(c): decisions in quasi-judicial local land-use proceedings had to be supported by substantial, competent evidence in the record, irrespective of ex parte communications.

Background and statutory framework

Section 286.0115(1) authorized, but did not require, local governments to adopt a disclosure process removing the presumption of prejudice. Subsection (2) addressed quasi-judicial local land-use proceedings and required identical procedures for an ordinance or resolution affecting ex parte communications there. The letter also mentioned an alternative process for addressing the Jennings problem. It had not been told whether Bartow had adopted a qualifying ordinance or resolution.

Citations and references

• Section 286.0115, Florida Statutes: local procedures and ex parte contacts.
• Jennings v. Dade County, 589 So. 2d 1337 (Fla. 3rd DCA 1991): rebuttable presumption discussed by the letter.

Source

• Landing page: https://www.myfloridalegal.com/ag-opinions/planning-zoning-board-ex-parte-communications
• Official print view: https://www.myfloridalegal.com/print/pdf/node/1880

Original opinion text

Mr. Bo Raulerson

482 Washington Court

Bartow, Florida 33830

Dear Mr. Raulerson:

As a member of the Bartow Planning and Zoning Commission, you ask whether a member of the commission, sitting in a quasi-judicial capacity on a land use matter, may have ex parte communications with residents of the area prior to the hearing. If so, must the member disclose such communications prior to voting on the matter?

It is the policy of this office to respond to questions involving the authority or actions of a board or commission at the request of a majority of its members. While this office will not provide a formal opinion in this instance, the following general comments are provided to provide some guidance.

In an informal opinion dated March 12, 2007, this office was asked whether a municipal ordinance which requires disclosure of ex parte communications that occur as to pending applications that have been filed is adequate to eliminate the presumption of prejudice pursuant to section 286.0115, Florida Statutes.

Section 286.0115(1), Florida Statutes, authorizes a county or municipality to adopt an ordinance or resolution removing the presumption of prejudice from ex parte communications with local public officials, by establishing a process to disclose ex parte communications with such officials pursuant to the subsection. The statute recognizes that counties or municipalities are not required to adopt such an ordinance. Subsection (2) of the statute allows for an ordinance or resolution to establish procedures for quasi-judicial proceedings on local government land use matters. However, an ordinance or resolution affecting ex parte communications in quasi-judicial matters "shall provide procedures and provisions identical to this subsection."[1] Thus the provisions in section 286.0115, Florida Statutes, operate to remove the presumption of prejudice for ex parte communications, should a local government adopt the appropriate procedures. It would appear that absent the adoption of such procedures, the presumption of prejudice for ex parte communications would remain intact. You do not indicate whether the City of Bartow has adopted a resolution or ordinance for quasi-judicial proceedings.

In Jennings v. Dade County,[2] the Third District Court of Appeal concluded that proof of an ex parte communication by a quasi-judicial officer creates a rebuttable presumption of prejudice unless proven otherwise by competent evidence by the officer. The person affected adversely by the decision, therefore, is entitled to a new and complete hearing, unless the party defending against a new hearing can show that the communication was not, in fact, prejudicial.

Section 286.0115, Florida Statutes, was enacted to address the problems presented by the Jennings case. Absent the adoption of the appropriate procedures either pursuant to section 286.0115, Florida Statutes, or by an alternative process, problems such as in Jennings would arise when ex parte communications occur with an officer sitting in a quasi-judicial capacity. I would note, that section 286.0115(2)(c), Florida Statutes, acknowledges that disclosure of an ex parte communication between an individual and a member of the decisionmaking body is not required and such nondisclosure "shall not be presumed prejudicial to the decision of the decisionmaking body." The subsection further states that "[a]ll decisions of the decisionmaking body in a quasi-judicial proceeding on local government land use matters must be supported by substantial, competent evidence in the record pertinent to the proceeding, irrespective of such communications." However, as noted above, the application of these provisions is dependent upon the municipality's adoption of the procedures identical to the ones set forth in section 286.0115(2), Florida Statutes.

I trust that these informal comments will be of assistance to you.

Sincerely,

Lagran Saunders

Assistant Attorney General

ALS/tsh

--------------------------------------------------------------------------------------

[1] Section 286.0115(2)(a), Fla. Stat.

[2] 589 So. 2d 1337 (Fla. 3rd DCA 1991).