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On land-use issues in their districts, councilmembers stay on the sidelines for fear of violating fair-process protections.
City Councilwoman Sherri Lightner appeared recently before about 400 fired-up constituents who were meeting to discuss the controversial One Paseo development. On stage, Lightner made a peculiar announcement: She had nothing to announce.
“Now as most of you know, I cannot take a position on this issue prior to the presentation and hearing at City Council,” she said. “If I were to do so, I would have to recuse myself and would be unable to vote on this project. That means I would not be able to represent the wishes of my community at City Council, and I definitely do not want that to happen.”
It wasn’t the first time Lightner declined to weigh in on One Paseo.
Councilman David Alvarez took a similar non-stand on a land-use dispute among his constituents. I asked Alvarez to comment on the competing visions offered for the Barrio Logan Community Plan update, but Alvarez said he couldn’t state a preference.
“First of all, I’m precluded from taking a position, since it’s a land-use decision eventually facing council,” he said.
In both cases, the council members said staking out a position would force them to surrender their vote when the matter eventually made its way to the council docket.
Council Members as Judges
Alvarez and Lightner’s reticence to opine on closely watched issues in their communities relates to legal requirements for elected officials when they’re acting in a judge-like role. In legal jargon, these decisions are known as either “quasi-judicial” or “adjudicative.”
These decisions are different from the more basic, wide-ranging ones that usually cross legislators’ desks, wherein they determine policies that apply to everyone in the community, or at least a broad segment of it. Instead, officials are being asked to apply existing policy to a specific situation.
In these cases, the state has established requirements to ensure individuals receive a fair hearing on their request.
Another quirk when the council acts in this interpretative capacity: The mayor can’t appeal the decisions. The City Attorney recently affirmed this after Mayor Bob Filner spoke out against the One Paseo project.
For the council members, announcing how they planned to vote on an issue would be a clear violation of fair process requirements. But that’s not the only issue that could force a recusal from a member.
A party involved in the decision could appeal to a court if he or she believes there’s an unacceptable probability that a member cannot be fair. Officials cannot, for instance, have a strong personal interest, financial or otherwise, in a decision’s outcome.
The “personal interest” factor also comes in to play for Alvarez and Barrio Logan’s community plan update.
The community has long been plagued by the cohabitation of homes and industrial businesses that produce potential harmful air pollution. Alvarez grew up next door to a company that stripped metal from cars. A fundamental component of the community update is creating a system that separates residences from industrially zoned land going forward.
According to this primer on fair process requirements on quasi-judicial decisions provided by the City Attorney’s Office, Alvarez wouldn’t be restricted from voting based on his personal history with the issue, but he could be if he was still living in such a situation.
Donors Don’t Count
The California Supreme Court has also said officials are presumed impartial, unless they have a financial interest at stake.
Officials could also be barred from voting in such situations based on ties to one of the involved parties. Critically, courts have ruled campaign contributions don’t trigger personal-bias issues.
That means Lightner needn’t worry about the almost $3,000 she received from employees of Kilroy Realty — the developer behind One Paseo — during her re-election bid, or the $1,200 she received from Donahue Schriber, owner of the neighboring commercial development and one of the project’s opponents.
Officials might also be disqualified from the decision-making process if there’s evidence they came to a conclusion about the facts of an issue before the public hearing, even if they don’t indicate how they plan to vote.
That’s why Alvarez and Lightner have opted not to express explicit opinions in public. Many of their opinions might be inconsequential to questions of fair process, but they’re erring on the side of caution.
I’m Andrew Keatts, a reporter for Voice of San Diego. Please contact me if you’d like at email@example.com or 619.325.0529 and follow me on Twitter:
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