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HomeMy WebLinkAbout7.1 Ex Parte Amend G~~~ OF DpB`~y y`,~-;~~~ STAFF REPORT CITY CLERK CITY COUNCIL File #610-20 ~~GlFOR~~~ DATE: October 4, 2011 TO: Honorable Mayor and City Councilmembers FROM: Joni Pattilto, City Manager ``~~-.J ~~1 SUBJECT: Adoption of Amended and Restated Ex Parte Contacts Policy Prepared by Stephen Muzio, Assistant City Attorney - EXECUTIVE SUMMARY: Ex parte contacts are communications of information relevant to aquasi-judicial governmental decision to a decision maker outside of the formal quasi-judicial proceeding. On December 20, 2005, the City Council adopted a policy prohibiting City Council members and Planning Commissioners, among others, from the intentionally making or receiving ex parte contacts related to quasi-judicial proceedings such as site development review approvals, conditional use permits, and variances. The policy does not apply to quasi-legislative decisions such as general plan amendments and zoning ordinance amendments. At the April 5, 2011 City Council meeting, Councilmember Swalwell requested that the policy be placed on a future Council agenda that would allow the policy to be reviewed. At the September 6, 2011 City Council meeting, the City Council directed the City Attorney to prepare an amendment to the policy that would permit the members of the City Council to make or receive ex parte contacts except when a matter is actually scheduled. to be heard by the City Council itself. Staff has prepared a resolution that would permit contacts unless and until the City Council is notified that it will be sitting as the quasi-judicial hearing body on a specific matter. FINANCIAL IMPACT: None RECOMMENDATION: Staff recommends that the City Council either: (a) take no action and thereby leave the existing ex parte contacts policy in place or (b) adopt the proposed resolution permitting only the members of the City Council to make or receive ex parte unless and until the Councilmembers are notified by City Staff that a specific matter will be heard by the City Council itself. Submitted By Reviewed By City Attorney Assistant City Manager Page 1 of 2 ITEM NO. 7.1 DESCRIPTION: Ex pane contacts are communications or other information received outside of the formal hearing process that are relevant in an adjudicatory matter before city officials. Ex pane contacts can include visits to sites that are the subject of an adjudicatory matter made by city officials outside the hearing process. No state statutes regulate ex pane contacts in administrative proceedings of local governing bodies. However, as the December 20, 2005 staff report explained in more detail, ex pane contacts can result in constitutional due process issues and create the appearance of unfairness in city administrative proceedings. At its December 20, 2005 City Council meeting, the City Council adopted Resolution No. 234- 05, establishing an ex pane policy that prohibits City officials from intentionally receiving ex pane contacts and requires their disclosure on the records if contacts are nonetheless received. At the April 5, 2011 City Council meeting, Councilmember Swalwell requested that staff provide the City Council with a report on the ex pane contacts policy reflected in Resolution No. 234-05. At the September 6, 2011 City Council meeting, staff provided that report and received direction from the City Council to prepare an amendment that would permit the City Council to make and receive ex pane contacts except with respect to any quasi-judicial proceeding at which the City Council would be sitting as the decision making body. The City Attorney's Office has prepared a Resolution adopting a revised ex pane policy (Attachment 1) that maintains the current prohibition on ex pane contacts with respect to all City Officials except for the City Council. City Councilmembers would be permitted to make and receive ex pane contacts unless and until the City Council is notified by City Staff that the City Council itself will be sitting as the decision making body fora particular quasi-judicial proceeding. This would, for example, allow City Councilmembers to make and receive contacts related to a site development review approval request being heard by the Planning Commission, but once the City Council is notified that the Planning Commission decision has been appealed, the City Council would be prohibited from intentionally receiving ex pane contacts related to that matter. All City Officials, including members of the City Council, who act as decisionmakers in quasi-judicial proceedings will continue to be required to disclose, on the record, any contacts they have had with respect to those proceedings. The current practice is for the City Manager to provide notice to the City Council when it will be acting as a decision maker in aquasi-judicial proceeding, such as appeals of certain Planning Commission decisions. If the amended policy is adopted, these notices will include a notation that the policy applies and that Councilmembers should refrain from making or receiving ex pane contacts with respect to the proceeding. If the proposed resolution is adopted, it would supersede Resolution No. 234-05. NOTICING REQUIREMENTS/PUBLIC OUTREACH: No public notification required. ATTACHMENTS: 1. Resolution Amending and Restating the Policy Regarding Ex Parte Contacts in Quasi-Judicial Proceedings 2. December 20, 2005 Staff Report 3. September 6, 2011 Staff Report Page 2 of 2 RESOLUTION NO. XX-11 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN AMENDING AND RESTATING THE POLICY REGARDING EX PARTE CONTACTS IN QUASI-JUDICIAL PROCEEDINGS WHEREAS, the City Council, the Planning Commission, the Zoning Administrator, the City Manager or designee, and other City officers conduct a number of quasi-judicial hearings in the course of performing their duties; WHEREAS, the due process clauses of the United States and California Constitutions impose certain requirements on local agencies that conduct such hearings, including a requirement that decision makers consider only that evidence that is presented at the hearing; WHEREAS, members of the City Council, the Planning Commission, the Zoning Administrator, and the City Manager or the City Manager's designee could potentially receive information pertinent to quasi-judicial hearings outside of the formal hearing, which information is known generally as an "ex pane contact"; and WHEREAS, the City Council by adopting Resolution No. 234-05 previously determined that it would be prudent to have a policy concerning ex pane contacts in quasi-judicial proceedings that applies to the City Council, the Planning Commission, the Zoning Administrator, the City Manager or designee, and other City Officials that make decisions in quasi-judicial proceedings, and now desires to amend and restate that policy thereby superseding Resolution No. 234-05; NOW, THEREFORE, the City Council of the City of Dublin does RESOLVE as follows: 1. Purpose. The purpose of this policy is to ensure that decisions of the City of Dublin in quasi- judicial administrative proceedings are conducted in an impartial manner and comply with the requirements of Due Process under the Constitutions of the United States and the State of California. 2. Policy. With the exception of the members of the City Council, City Officials shall not intentionally make or receive Contacts related to quasi-judicial proceedings. Members of the City Council are not prohibited from making or receiving Contacts related to quasi-judicial proceedings, except that members of the City Council shall not intentionally make or receive Contracts relating to a quasi- judicial proceeding after receiving notification from City staff that the City Council will be acting as the decision maker for said proceeding. 3. Disclosure. City Officials shall disclose any such Contacts, whether prohibited or not, on the record of the quasi-judicial proceeding, thereby affording interested persons the opportunity to hear and respond to the Contact. In preparing agendas for quasi-judicial hearings, City staff shall include an item for disclosure of ex pane Contacts prior to the opening of the public hearing. 4. Application. The Ex Pane Contacts Policy shall apply only to quasi-judicial proceedings and shall not apply to quasi-legislative or mixed quasi-judicial/quasi-legislative proceedings. Page 1 of 3 5. Effect of Violation. A violation of the Ex Pane Contacts Policy shall not constitute independent grounds to invalidate any decision by City Officials. 6. Definitions. The following definitions shall apply to this policy: "Contacts" means the receipt of any information outside aquasi-judicial proceeding that is relevant in aquasi-judicial proceeding before City Officials. Contacts may include, but are not limited to, conversations, written communications, electronic mails, telephone calls, and visits to sites that are the subject of aquasi-judicial proceeding. "City Officials" means the City Council, the Planning Commission, the Zoning Administrator, the City Manager or the City Manager's designee, and any other city employee or officer that acts as a decision maker in aquasi-judicial proceeding. "Disclosure" means, at a minimum, disclosure of: the persons involved in the ex pane contact, the content of the ex pane contact (e.g., what information was provided, what was discussed, what was said), when the ex pane contact occurred and where the ex pane contact occurred. "Quasi-judicial proceeding" means a City proceeding in which a City Official applies existing legal standards to a particular set of facts that affects an individual or individuals. "Quasi-legislative proceeding" means a City proceeding in which City Officials create a rule of general applicability for future guidance. Quasi-legislative proceedings in the City of Dublin include, but are not limited to, actions on general plan amendments, specific plan amendments, and zoning decisions. "Mixed quasi-judicial/quasi-legislative proceeding" means a City proceeding involving both adjudicative and legislative elements. Mixed quasi-judicial/quasi-legislative proceedings in the City of Dublin include, but are not limited to, site development permit approval that is contingent upon a zoning ordinance amendment. 7. Effective Date. This Resolution shall take effect immediately and upon becoming effective shall supersede Resolution No. 234-05. 8. Severability Clause. The provisions of this Resolution are severable and if any provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or circumstances. Page 2 of 3 PASSED, APPROVED, AND ADOPTED this 4th day of October 2011, by the following vote: AYES: NOES: ABSENT: ABSTAIN: Mayor ATTEST: City Clerk 1718939.1 Page 3 of 3 CITY CLER1~ III ~jj 11 File # AGENDA STATEMENT CITY CDUNCI~, MEETING DATE: December 20, 2005 Si]~JECT; Prnposed Ex purte Contacts Policy Report Prepared by Elizabeth H. S'iZver, City Attnrney ATTACHMENTS: 1. Prapased Resolution Permitting Ex pane Contacts in ~uasi- Judicial Proceedings Option 1) 2. Prapased Resolution Prohibiting E.x pane Contacts in ~uasi- Tudicial Proceedings [Option 2) 3. List of quasi-Judicial Proceedings RECOMMENDATION: 1. Receive Staff presentation. 2. Receive public cornrnents. 3. Dcliberatc 4. Adapt Resalutian tar 2, or provide direction. FINANCIAL STATEMENT: Nonc. DESCRIPTION: Ex pane cantac:ts are communications or other information received. outside the hearing process that are relevant in an adjudicatory matter before city officials. Ex parts contacts can also include site visits made by city officials outside the hearing process. Na state statutes regulate ex parte contacts in administrative proceedings of local governing bodies. Additionally, the Municipal Code az~d City policies are silent as to ex pcarte contacts. Yet, as is discussed below, ex parts ca~ntacts can result in constitutional due process issues and create the appearance of unfairness in City administrative proceedings. In order to avoid confusion and the appearance of impropriety, the City may wish to provide guidance to officials with regards to ex pane contacts through the adoption of the proposed ex pc~rte contacts policy. +~PY TO: Page 7 of 5 ITEM.1~i0. Whv sho~l~ t~~.~XtY consider adoadon#,1,n,~ a Policy Regarding Ex par~te ~antacts? Bath the United States and California Constitutions protect against the deprivation ofprocedural due process rights of parties in administrative proceedings where a property right is at stake. (U.S. Const., 14th amend., § 1; Cal. Canst., art. I, § 7.) California law extends procedural due process rights far pasties to adrninistx`ative proceedings further than dues federal law. (See Lockheed Shipbuilding and Constt'ucticrrt C'o. (1973] 35 Ca1.App.3d 776, 780-s1.j l~ue process before an administrative body requires a fair and impartial hearing before a neutral and unbiased decision-maker. (Nightlife Partners, Ltd. v. City ofBeverly Hills (2x03) 108 Cal.App.~Ft~' Sl, 90 (Nightlife Partnersj.j in fact, due process not only requires a fair and impartial hearing, it requires the appearance ofa fair and impartial hearing. (Ibid.) A California Appeals Court has held that the appearance of impartiality is especially important in administrative hearings due to the "broad applicability of administrative hearings to the various rights and responsibilities of citizens and businesses, and the undeniable public interest in fair hearings in the administrative adjudication arena.'° (ibid.) The court reasoned that adrninistrati~ve hearings often affect significant rights and serve as the first level of adjudicatory review. (Ibid.) Even before such cases broadening the concept of due process, the courts had held that. due process requires that the decision must be based on the official record in the case. Thus, one court held that reliance on information obtained, from discussions with the parties outside of the hearing was improper because it resulted in nn unfair hearing, (See Safeway Stares, Inc. v. City afBurlingame (1959} 170 Ca1.App.2d 637, 645-47.) It is well-settled that due process protections do not attach in all administrative proceedings. (Horn v. County of Ventura (1979) 24 Ca1.3d GUS, 612 (1~orn}.) Rather, due process is guaranteed only in administrative quasi judicial proceedings, and not in quasi-legislative proceedings. (Ihid,) Quasi-judicial proceedings involve an adjudicative function wherein city o#~icials serve in ajudge- like capacity. The purpose of a quasi judicial proceeding is to apply a legislative rule to an existing set of facts. (Hi~rn, supra, 24 Ca1.3d at p. 613; Strurnsky v. San Diego County Employees Retirement Assn. (1974) 11 ~a1.3d 2S, 35, n.2 (Strumskyj.j Quasi judicial proceedings most often arise in the context of an appeal from the Planning Commission to the City Council. Far example, Planning Comrnissian actions on site development review permits, conditional use permits, variances, and tentative subdivision rnnps can he appealed to the Council and all these are quasi judicial actions. However, the Dublin Municipal Code provides far many other quasi judicial proceedings. (See Attachment 3 far a List of Quasi~Judicial Proceedings provided in the 1]ublin Municipal Code,) Quasi-legislative proceedings are thane in which city officials serve in apolicy-making capacity. The purpose ofa quasi-legislative proceeding is to create a rule of general applicability far future guidance. (Hurra, supra, 24 Ca1.3d at p. b13; Strurnsk~, supra, 11 Ca1.3d at 35, n.2.j As compared to a case-specific quasi-judicial decision, aquasi-legislative proceeding has a much brander scope that applies to future cases. Quasi-legislative proceedings in the City include, but are not limited to, actions on general plan amendments, speci.hc plan amendments, zoning decisions and development agreements. Page ~ of 6 It is notable that the State Administrative Procedure Act (APA) seeks #o ensure fair and impartial adjudicatory proceed~rgs by prohibiting all ex pane contacts. Cxovernment Cade § 11430.10. Although the APA does no# apply to 1oca1 governr.~en#s, a recent California Appeals Court decision used the provisions of the AFA as the standard for imposing due process protections in an administrative proceeding. (Nightlife 1'artraers. supra, l 08 Ca1,App.4`" at pp. 91-92.) Sti11, in Flugst~ad v. City of,San Mated (1957) 15G Cal. App.2d 138, 141, the Court upheld a city council's decision to grant a variance far construction and operation ofa service station, even though the councilmen had visited the proposed site outside the administrative proceeding. The Courk held that the councilmen had fully disclosed the views from their indcpcndcnt investigation on the retard, and persons protesting the variance were given the opportunity to challenge these views. (Ibid.) Thus, the current state of the lavv appears to be #ha# e_x purse Contacts are permissible provided that the nature of the Contacts is disclosed an the record of the proceeding sa that the porkies have an opportunity to rebut or otherwise provide their views on the information obtained from tht Contacts. 'What Options does the City have in Adapting an ~;x parse Cantatts_ Pali Given the state of the law, the Council may wish to consider the fallowing two options when Considering the adoption of an par~te Contacts policy. 1. First, the City may permit ex parse contacts and require city ol~icials to report these contacts on the record at a qua_~i~judicial proceeding. (See Attachment 1.) Permitting ex parse contacts imposes no limits on city officials and is therefore an easily-applied rule. Additionally, city officials would not need to avoid contacts regarding pending adjudicatary hearings. The disclosure of ex parse tantacks facilitates a more transparent bearing process and overall fairness because the contact is disclosed on the record at the commencement of the hearing. However, this policy provides less 1ega1 protection from charges ofbias ar unfairness than the second option. Furthermore, the accuracy of the disclosure afthe contact is dependent on the recollection of the City of~.cial and thus vulnerable to a challenge as an inaccuz~ate or incorr~plete disclosure. Second, the City may prohibit ex parse contacts and require city officials to report any such contacts on the record at aquasi-judicial proceeding. (SCe Attachment2.) Prohibiting all ex parse contacts provides city officials wi#b a brigh#-line rule in defining the corrrnunication they ax~ay have wi#b the public and involved parties regarding a pending quasi-judicial proceeding. A prohibition on ex purt~ contacts fasters trust between the public and city officials and will prevent accusations ofbias or unfairness. Although the ban sacrifiices the valuable cornmunicatian bctwctn a. governing body and its tanstitutnts, this option goes the farthest toward assuring fairly- conducted hearings. Finally, this option provides the mast amount ofprotection from charges ofbias ar unfairness, thereby reducing the possibility oflitigation. What. aommunitations are taverecl by the Proposed Ex party Contacts Pnligy..Qptions? Th.e Proposed Ex parse Contacts Policy options would apply to contacts such as individual conversations, written communications, electronic mails, telephone calls, and visits to sites that are the subject of aquasi-judicial proceeding. Page 3 of C~ The Proposed Ex parts Contacts Policy options would not apply to communications made an the record at the praceeding. hi all options, in the event that information is received outside the praceeding, the information must he disclosed on the record at the praceeding. Ta wham would the Proposed Ex par~te Contacts Policy options anvl~? The Ex parts Contacts Policy options would apply to all city ofbcials that preside over quasi- judicial proceedings, including, but not limited to, members of the City Council, members of the Planning Commission, the caning Administrator, the City Manager or designee, and any other city employee or officer that acts as a decision maker in a quasi judicial proceeding, A1LA~~das_. Shaul~l.Include Time. far Officials to Disclose any .E~ F~rr~~ ~antacts We recommend each agenda that includes a quasi judicial item include a time far officials to disclose any ex pare contacts the member may have had. 'T'his wi11 be a reminder to officials to disclose any such contacts. Each agenda would include a state~x,ent such as t1~e following prior to the staff presentation: "Disclosure of ex parts contacts (persons involved in ex parts contact, the contamt of the ex parts contact (what information was provided, what was discussed, what was said}, when the ex parts contact occurred and where the ex pr~rte contact occurred)." If an ex parts contact has been made, the rnirrirnurn amount of disclosure required includes the persons involved in the ex parts contact, the content of the ex parts contact (e.g., what information was provided, what was discussed, what was said), when the sx parts can.tact occurred and where the ex pr~rte contact occurred. A goad way to remember this is "who/what/when/where". To What Proceedings would the Proposed Fx parts Contacts Policy options apps`? To determine when the Proposal Ex pare Contacts Palicy applies, it is important to distinguish between quasi-judicial and quasi-legislative proceedings, The Proposed Palicy options only apply to quasi-judicial proceedings. The Policy options do not apply to quasi-legislative proceedings. Because aquasi-judicial praceeding may render a decision that deprives the party before it of a property interest, the government must provide du.e process protections. (Horn, supra, 24 Ca1.3d at pp. 612-13.} Conversely, aquasi-legislative praceeding does not implicate due process protections, because there is no concern for a deprivation of a prop~-ty interest. (Ibir~.} Soy~e proceedings may defy char~acterilation as either a pure quasi judicial or pure quasi- lcgislative proceeding. When a proceeding involves both adjudicative and legislative elements, it maybe characterized as a mixed quasi judicial/quasi-legislative praceeding. Far purposes of the Proposed Policy options, mixed quasi judicial/quasi-legislative proceedings are treated as quasi-legislative proceedings. The quasi-legislative function of a mixed proceeding.is of fore~naost i~r~portance because the adjudication of the case cannot be decided until the legislation which applies to the case is settled. ~ Therefore, the primary element of a mixed praceeding is legislative, and the Ex pane Contacts Policy would not apply. Mixed quasi judicial/quasi-legislative proceedings in the City Page 4 of 6 include, but are not limited to, a site development permit or conditional use permit approval that is contingent upon a general Plan amendment or a rezoning. For example, the Sorrento at Dublin Ranch Area P project included both quasi judicial and quasi- legislative actions. On September 13, 2005, the Planning Canunission approved Mastex Tentative Tract lviaps for area F West (Tract 7641) and Area F East (Tract 76S 1), for the Sorrento at Dublin Ranch Area F project. (Planning Commission Resa. OS-52.) This vesting tentative map action constitutes aquasi- judicial proceeding. However, this tentative map approval was contingent upon the City Council's approval to amend the Planned Development for Dublin Ranch Area F North, to increase the number of units pernnitted under the Flanz~.ed Development. (City Council Ord. 24-05.) because the Sorrento at Dublin Ranch Area F project involved aquasi-judicial action cantingent upon aquasi-legislative action, it would be treated as quasi-legislative; thus, the Ex Porte Contacts FUlicy would not apply. What if the Prohibition on E.x parts Contacts option (Attachment2). is. ad4gted and is v~~~~~:~ lc~ If a city officer engages in ex parts contacts with a party t? aquasi-judicial proceeding or inadvertently learns of information regarding the quasi judicial proceeding, any issue regarding the par~te contacts maybe cured through disclosure an the record at a subsequent proceeding. {Flc~gstud v. City of'San Mateo, supra, 156 Ca1.App.2d at pp. 141-42.) Such disclosure on the record cures the Ex parts Contacts Policy violation because it affords all parties the opportunity to hear and respond to the communication before the body. (ibid.) The Policy also provides that ifthc Policy is violated, it shall not constitute independent grounds for invalidating the decision. Despite this language in the Folicy, it would not prevent the parties from arguing that due process was violated. What if a Court Finds an Improper Ex pane Contact has been made? As elected ot~icials responsible to an electorate, it seems counterintuitive to adopt a policy which prohibits com~rtunicatian between city officials and city residents regarding pending quasi judicial proceedings. However, a breach of due process rights for persons involved in a pending quasi judicial proceeding can have serious consequences. T'wo recent Court of Appeals due process cases invalidated decisions from administrative hearings where the hearing officials did not provide the "appearance of fairczess.°° (1ightlife Partners. supra, i 08 Ca1,App.4`~' at p. 90; Quintero v. City of Santa Ana (2004) l ] 4 Ca1.App.4~' 810, 817 (Quznter~~).~ Additionally, the Court in bath decisions awarded attorney's fees to the plaintiff asserting a due process violation. {1ightlife Partners, supra, 108 Cal.App,4`" at p. 99; Quintero, supra, 114 Ca1.App.4`" at p. 818.) Although both decisions addressed due process claims arising from the commingling of advisory and prosecutorial functions by city attorneys, the reasoning of the cases is applicable to ex parts contacts by city officials. In Nightlife Partners, the Court held that "dtte process in an adnnistrative healing also demands an appearance of fairness and the absence of even a probability of outside influence on the adjudication." (108 Ca1.App.4~' at p. 90.) It would seem that such "outside influence" might be inferred from a city official°s ex parts contacts outside the quasi judicial proceeding. In Quintero, the Court held that the City "must exercise vigilance and caution, to ensure not only fairness, but the appearance of fairness,°' (114 Ca1.App,4~' at p. S 17.] These due process cases require the city officials to be impartial and fair, as well as appear impartial and fair, when making decisions in administrative hearings. Page 5 cif 6 Finally, goad public policy would seem to require that city officials execute their adjudicatory dutyes with tayrness and impartiality, Prohibiting ex par~te contacts fasters trust between city officials and city residents, and pro~rides a clear rationale for why a city off vial must retrain from communicating about a pending adjudication. RECOMMENDATION Staff recommends the City Council hear Stal=ls presentation, consider any comments from the pablic, deliberate and adopt Option 1 or 2, or provide other direction Staff also recommends that the Council direct the Staff to include a time to disclose any contacts on any agenda that includes aquasi- judicial item. 78697fi-1; 194.1001 Page 6 of 6 . ~ ~ OPTION 1 RESOLUTION NU. A RESOLi7TION OF THE CITY CO[1NCIL OF TIDE CITY OF DUIILIN ESTASLISHIN~ A POLICY REIiARD1NG P~1127"E' CONTACTS IN t~IIASI-JUDICIAL FROCEEDINGS WHEREAS, the City Council, the Planning Commission, the caning Adrr~inistrator, the City Manager or designee, and other City officers conduct a number of quasi-judici~?~ hearings in the course of performing their duties, WHEREAS, the due process clauses of the United States and California Constitutions impose certain requirements an local agencies that conduct such hearings, including a rcgnirernent that decision makers consider only that evidence that is presented at the hearing; WHEREAS, members of tl~e City Council, the Planning Comrnission, the honing Administrator, and the City Manager ar designee could potentially receive information pertinent to quasi-judicial hearings outside of the forz~a] hearing, which information is known generally as `°ex pane contacts"; and WHEREAS, the City Council has determined that it would be prudent to have a policy concerning ex pane contacts in quasi judicial proceedings that applies to the City Council, the Planning Commission, the 2aning Administrator, th.e City Manager or designee, and other City Officials that make decisions in quasi-judicial proceedings; NOW, THEREFORE, the City Council of the City of Dublin does RESOLVE as follows: 1. Purpose. The purpose of this policy is to ensure that decisions of the City of Dublin in quasi judicial administrative proceedings are conducted in an impartial manner and comply with the requirements ?f I]u.e Process under the Constitutions of the United States and the State of California. 2. Policy. City Officials shall permit Contacts related to quasi-judicial proceedings, , 3. Di.sclr~sure, City Officials shall disclose such Contacts an the retard of the quasi-judicial proceeding, thereby alfording interested persons the oppariunity to hear and respond to the Contact. In preparing agendas for quasi judicial hearings, City staff shall include an item for disclosure of ex pc~rte Contacts prior to the opening of the public hearing. 4. Appliaati~n. The Fx pane Contacts Policy shall apply only to quasi-judicial proceedings and shall not spply to quasi-legislative or mixed quasi judiciaUquasi-legislative proceedings. . ~ ~ Page 1 of 3 1~-~-`~ 1~'~'~ACH~ CNT 5. Effect of lfiolatiot~. A violation of the Ex par~te Contacts Policy shall not constitute independent grounds to invalidate any decision by City Officials. 6. Dej~nitions. The fallowing definitions shall apply to this policy: "Contacts" means the receipt of any information outside a quasi judicial proceeding that is relevant in a quasi-judicial proceeding before City Of~ricials. Contacts may include, but are not limited, to, conversations, written communications, electronic mails, telephone calls, and visits to sites that are the subject ?f a quasi judicial proceeding. ``City Officials" means the City Council, the Planning Commission, the Zoning I', Administrator., the City Manager or designee, and any other city employee or officer that acts as a decision maker in a quasi judicial proceeding, "Disclosure" means, at a minimum, the persons involved in the ex parte contact, the content of the ex parte contact (e.g., what information was provided, what was ~I discussed, what was said), when the ex parte contact occurred and where the ex pcarte contact occurred. "Quasi judicial proceeding" means a City proceeding in which a City Official applies existing legal standards to a particular set of facts that affects an individual or individuals. "Quasi-legislative proceeding" means a City proceeding in which City Officials ~I create a rule of general applicability for future guidance. Quasi-legislative proceedings in the City of Dublin include, but are not limited to, actions on general plan amendments, specific plan amendments, and zoning decisions. "Mixed quasi judicial/quasi-legislative proceeding" means a City proceeding involving both adjudicative and legislative elements. Mixed quasi judicial/quasi- legislative proceedings in th.e City ofDublin include, but are not limited to, site development permit approval that is contingent upon a zoning ordinance arnendrnent. 7. Effective Dote. This Resolution shall flake effect immediately. 8. Severability Clause. The provisions ofthis Resolution are severable and if any provision, clause, sentence, word or part thereofis field illegal, invalid, unconstitutional, or inapplicable to any person ar circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect ?r impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof ofthe ordinance or their applicability to other persons or circumstances. I I I Page 2 of 3 I~ ~i i ~i PASSED, APP~tOV~~, AND ADOPTED ths`s _ day of December X005, by the fc711owing vote', AYES: NOES: ABSENT: ABSTAIN; Mayor ATT~sT: fit Clerk 793733-1; 114.1Q01 Page 3 of 3 ~ aPTIUN' 2 RI~SQ>GUTTI~N NQ. A RESOLI]T1UN DF T`HE CITY OLTNIIr OF'I'HlE CITY aF DUBLIN ESTABLTSHIN A FULICY REt~t1.RD>GNG EJf~ PARTS CONTACTS llV QUASI-JUDICIAI. FItOCEEDINS WHEREAS, the City Council, the Planning Commission, the caning Administrator, the City Manager oar designee, and other City officers conduct a number ?f quasi-judicx~l hearings in the coursa of performing their duties; WHEREAS, the due process clauses of the 1_Inited States and California Constitutions impose certain requirements on local agencies that conduct such hearings, including a requirement that decision makers consider only that evidence that is presented at the hearing; WHEREAS, members of the City Counc`i1, the Planning Commission, the honing Administrator, and the City Manager ar desi~ee could potentially receive information pertinent to gaasi-judicial hearings outside of the formal hearing, which information is known genexaXly as "ex pc~rte contacts"; and WHERE,4~S, the City Council has determined that it would be prudent to have a policy concerning exparte contacts in quasi judicial proceedings that applies to the City Council, the Planning Commission, the honing Administrator, the City Manager or designee, and other City Officials that make decisions in quasi-judicial proceedings, NQW, THEREFaRE, the City Council of the City of Dublin does RES~IGVE as follows: 1. Purpose. The purpose of this policy is to ensure that decisions of the City of Dublin in quasi judicial administrative proceedings are conducted in an impartial manner and comply with the requirements ?f Due Process under the Constitutions of the United States and the II State of California. 2. Policy. City Officials shall not intentionally make or receive Cantaets related to quasi- judicial proceedings. 3. Disclosure. In the event that Contacts are nonetheless received, City Officials sha11 disclose such Cantaets an the retard of the quasi judicial proceeding, thereby affording interested persons the opportunity to hear and respond to the Can.tact. In preparing agendas fox quasi judicial hearings, City staff' sha11 include an item far disclosure of ex parse Contacts prior to the opening of the public bearing. 4. Aplnliccativn. The Ex purt~ Contacts Policy shall apply only to quasi-judicial proceedings and shall not apply to quasi-legislative or mixed quasi judicial/quasi-legislative proceedings. Page 1 of 3 ~TT~C~M E11iT r 5. Effect of Violation. A violation of the Ex pczrte Contacts Policy shall not constitute indcpcndcnt grounds to invalidate any decision by City Officials. 6. a]e~nitians. The fallowing definitions shall apply to this policy: "Contacts" means the receipt of any information outside a quasi judicial proceeding that is relevant ire a quasi-judicial proceeding before City Officials. Contacts may include, but are not limited to, conversations, written communications, electronic mails, telephone calls, and visits to sites that are the subject of a quasi judicial proceeding. "City Officials" means the City Council, the Planning Commission, the Zoning Administrator, the City Manager or designee, and any ?ther city employee ar af~icer that acts as a decision maker in a. quasi judicial proceeding. "Disclosure" means, at a minimum, the persons involved in the ex parte contact, the content of the cx parte caz~tact (e.g., what information was provided, what was discussed, what. was said), when the ex parte contact occurred and. where the cx parte contact occurred. `°Quasi judicial proceeding" means a City proceeding in which a City Official applies existing legal standards to a particular set of facts that affects an individual ar individuals. "Quasi-legislative proceeding" means a City proceeding in which City Officials create a rule ofgeneral applicability far future guidance. Quasi-legislative proceedings in the City of Dublin include, but are not limited ta, actions on general plan amendments, specific plan amendments, and zoning decisions. "Mixed quasi judicial/quasi legislative proceeding" means a City proceeding involving bath adjudicative and legislative elements. Mixed quasi judiciallquasi- legislative proceedings in the City of Dublin include, but are not limited ta, site development permit approval that is contingent upon a coning ordinance amendment. 7. E~fec'tive Late. This Resolution shall take etf'ect immediately. 8. Severabirity C'luuse. The provisions of this Resolution are severable and if any provision, clause, sentence, word ar part thereof is held illegal, invalid, unconstitutional, or inapplicahie to any person or circumstances, such illegality, invalidity, uncanstitutianality, or inapplicability shall oat affect or impair ar~y of the remaining provisions, clauses, sentences, sections, wards ar parts thereof of the ordinance or their applicability to other persons ar circumstances. Page 2 of 3 J FASSED, AFPROVED, AND ADDPT~D this _ day of D~cernber 2005, by the fnllowin~ vote: AYES: NQES: ABSENT: ABSTAIN: IVlayor ATTEST: City Clerk - - 793732-1; 114.10Q1 Page 3 of 3 ~ ATTACHMENT 3 Y,ist of quasi-Judicial Proceedings provided in the Duk~lin MunicipaY Code quasi judicial proceedings in the city include, but are oat limited ta, actions an site developmeni review permits, conditional use permits, variances, and tentative subdivision maps, City Council hearings to close hazardous driveways; City Council ar Board of Appear interpretations ofthe Fire Cade; City Manager hearings to abate abandoned vehicles and appeals to City Council; Tax Administrator hearings far failure to collect or report transient occupancy taxes and appeals to City Council; Chief of Police hearings to suspend ar revoke fortunetclling permits and appeals to City Council; City Council bearings to review permits for parades; City Council hearings for delinquent payments of solid waste rnanage~r~ent services; City Manager review ofrecycling facility permits and appeals to City Council; City Cautrcil review afrevacatian ofperntits under solid waste ~xtanagement ordinances; City Manager hearings to suspend ar xevalc.e animal fanciers permits and appeals to City Council; City Manager hearings to abate a vicious dog and appeals to City Council; City Manager hearings to suspend ar revoke permits far exotic animals and appeals io City Council; City Manager hearings to suspend ar revoke licenses to operate bingo games and appeals to City Council; Gity Council hearings an appeal regarding public dancing permit issuance or conditions of issuance or the denial or revocation of such permits by the Chief of Police; City Council hearings of adminsitrative decisions made by City Manager under the smoking pollution control ordinances; City Council hearings of decisions made by City Manager under heritage tree ordinances; City Manager hearings to determine whether property consititutes a public nuisance and to propose rehabilitation, repair, removal or demolition of such property and appeals to City Council; City Manager hearings regarding notices and orders to abate graffitti on private proprety €uid appeals to City Council; City Council hearings to determine whether weeds and refuse constitute a public nuisiance; City Council hearings to review City Manager's orders t? abate fly nusinance; City 1VYanager hearings regarding impoundment of newsracks; City Council hearings regarding initial application of cable television and communication sysytems franchise applications; City Council hearings to review Chief ?f Police's decision to deny ar revak a peddler permits; City Manager hearings regarding permits for massage establishments and massage services; City Manager k,earings to review City Engineex's deciszoz~ on encroachments; City Council hearings regarding changes in street names; City Council hearings regarding establishment of underground utility distribution facilities district; City Council hearings to suspend or revoke grading permits; Gity Council hearings regarding issuance, denial, cancellation, or conditioning oi'a permits under watercourse protection ordinances; City Council hearings regarding variances and violations of flood control ordinances; City Council hearings regarding application afbuilding regualtion administration ordinances; City Council hearings regarding application afwaste management plan ordinances; Alameda County Health Officer or City Council hearings to determine whether there is a public nuisance and wether to abate the nuisance; Well Standards Advisory Board ar City Council hearings regarding violations under the wells ordinances; and, Planning Commision hearings and City Caunci~ hearings regardi.n.g proposed right-of--way lines. ~yas~s-i; iiaaaoi - l - ~r~~~~~~ 1 or DU~~ti s;~i~~s~z STAFF REPORT CITY C L E R K ~ ~ ®UELIN CITY COUNCIL File # ?~©0-®~ ~~cr~~~s DATE: September 6, 2011 TO: Honorable Mayor and City Councilmembers FROM: .loni Pattillo, City Manager SUBJEC Reconsideration of Ex Parfe Contacts Policy . Prepared By: John Bakker, Cify Afforney EXECUTIVE SUMMARY: Ex parts contacts are communications of information relevant to a quasi judicial governmental decision to a decisionmaker outside of the format quasi-judicial proceeding. On December 20, 2005, the City Council adopted a policy prohibiting City Council members and Planning Commissioners, among others, from the intentionally making or receiving ex parfe contacts related to quasi-judicial proceedings such as site development review approvals, conditional use permits, and variances. The policy does not apply to quasi-legislative decisions such as general plan amendments and zoning ordinance amendments. At that time, staff presented the Council with two proposed options far an ex parts contacts policy, one prohibiting contacts and the other permitting contacts but requiring their disclosure on the record. The City Council adopted the policy ~ prohibiting contacts. At the April 5, 2011 City Council meeting, Councilmember Swaiwelf requested that the policy be placed on a future Council agenda that would allow the policy to be reviewed. In the event that the City Council desires to change the policy, Staff has prepared a resolution that would permit contacts subject to their disclosure on the record of the proceeding. 'FINANCIAL IMPACT: None . RECOMMENDATION: Staff recommends that the City Council either. (a) take na action and thereby leave the existing ex parfe contacts policy in place or (b) adapt the proposed resolution permitting ex parts contacts subject to their disclosure on the record. Submitted By Revi wed y City Attorney Assistant onager 4 . Page ~ of 2 ITEIUI NO. ~ ~ 0 C:IdorvnloadslSTAFFBEPORT ABM Amendment 3.dQc ©ESCRIPTION: , Ex pane contacts are communications or other information received outside of the formal hearing process that are relevant in are adjudicatory matter before city officials. 1=x pane con#acts can include visits to sites that are `the subject of an adjudicatory matter made by city officials outside the hearing process, No state statutes regulate ex pane contacts in administrative proceedings of local governing bodies. However, as the December 20, 2005 staff report explained in more detail, ex paste contracts can result in constitutional due process issues and create the appearance of unfairness in city administrative proceedings. At its~December 20, 2005 City Council meeting, the City Council received a staff report from the City Attorney recommending that the Cify Council adopt a policy governing "ex pane contacts." (Attachment 9.) The City Attorney noted that, in order to avoid confusion and the appearance of impropriety, the City might wish #o provide guidance to officials with regards to ex paste contacts through the adoption of the proposed ex paste contacts policy. The City Attorney presented two options for the City Council`s consideration. Option 1 would have permitted ex pane provided that they are disclosed on the record of the quasi-judicial proceeding. Option 2 prohibited officials from intentionally receiving ~ex paste contacts and required their disclosure on the records i# contacts were nonetheless received. After its deliberations (see Minutes attached as Attachment 2}, the City Councit chose Option 2, the policy that prohibited ex paste contacts, and adopted Resolution No. 234--05 (Attachment 3). At the Apri! 5, 2091 City Council meeting, Councilmember Swalwell requested that staff provide the City Council with a report on the' ex pane contacts policy reflected in Resolution No. 234- 05. We have updated the research underpinning the December 20, 2005 staff report, and we found that nothing of substance had changed. Therefore, consistent with the options outlined in .the December 20, 2005 report, the City Council could choose to leave the existing policy in place or to adopt a new resolution (Attachment 4) that permits contacts but requires their disclosure on the record in the quasi-judicial proceeding. if the proposed resolution were adopted, it would supersede Resolution No. 234-05. NOTICING. REQUIREMENTSIPUBLIC OUTREACH; No public notification required. ATTACHMENTS: 1. December 20, 2005 Staff Report 2. Minutes from December 20, 2005 City Council Meeting 3. Resolution 234-05, Resolution Establishing a Policy Regarding Ex Porte Contacts in Quasi-Judicial Proceedings, 4. Proposed Resolution Permifting Ex Porte Contacts in Quasi- Judicial Proceedings. 1671180.3 Page 2 of 2 ~ ~r . AG~h]DA STAT~iN~NT CITY Ct~~1NC1~, IV~E~TtNC ®ATE: Dec~mb$r 2U, ~~~5 SUBJECT; ~ Proposed Expcrrte Contacts Policy Report ~'repared by.Elizabeth H. Silver, City Attorney ATTAC~MEN'PS; . ~ 1. Proposed Resolution Permitting ~r pr~rte Contacts in Quasi- Judicial Prc~edings (4ptian 1) 2. Proposed Resolution prohibiting ~xparte Contacts in Quasi- Judicial Proceedings (Option 2} 3. List of Quasi-Judicial Proceedings ~ " RECOt1'1MEN.l~ATIiON: 1. Receive Staffpreseritu#ion, 2. Receive public comments. 3. Dcliberatc 4. Adopt Resolution 1 or 2, car provide direction. FINANCIAL STATEMENT: Nonc. DESCRiFTIUN; Exparte ccantaats are communications orother in#'orrnatian received outside the hearing process that are relevant in an adjudicatory matter before city affiaials. Ex pane wntacts can also include site " visits made by city af~icials outside the hearing process. No state statutes regulata ~x pane. contacts in administrative pra4;eedings of. lc~~i governing Bodies. Additionally, the Municipal Code az~d City policies are silent as to ex pnrte contacts. Yet, as is discussed below, ~x pane coJ~tACts can result in canstitutia~ral due process issues and create the appearance of un#~irness itt City administrative proceedings. Tn order to avoid confusion and tlae appearance of impropriety, tl}e City may wish to provide guidance to officials with regards to ~x pczrte contacts throu~ the adoption of the proposed ex parte contacts policy. page i of 6 Attachment g. ~ 9- ~~1J r ' x arte C ntacts? V Bath the United States and California Constitutiai~s protect against the deprivation of procedural due process rights of parties in adrnir~istrative proceedings where a property right is at statce, (U.S. Canst,, 14'x' amend,, § 1; Cat. Const., art. I, § 7.} California law extends procedural due process rights for parties to adrni»istrative proceedings further than does federal law. (See Lockheed Shipbuilding and Consdr•uc(iurz Co. (197,3) 35 Cal.App.3d 776, 780-81.) ]7ue process before an adzr~inistrative 1~ody requires a fair and impartial hearing bofore a neutral and unbiased decision-maker. (iVightli fe Yarttrers, Ltd. v. City afBeverly Hills (2003) 108 CaLApp,4"' 81, 90 (1~ightlaJe Partners),) in fact, due process not only requires a fair and impartial hearing, it requires the appearance of a fair and impartial hearing. (ibid.) A California Appeals Court has held tltat~the appearance ofimpartiatity is especially important in administrative hearings due. to the "broad applicability of administrative hearings to the various rights and responsibilities of citizens and businesses, and the undeniable public in#erest in fair hearings in the administrative acljtrdioation arena.," (I6id.) The court reasoned that administrative hearings afters affect significant rights aad serve as the first level of adjudicatary review. (Ibid.) Even before such caws broadening the concept of due process, the courts had held that due process requires that the decision mus# be based on the offfcial record in the case. Thus, one court held that reliance an information obtained from discussions with the pa~~kies outside of the hearing was improper . because it resulted in an unfair hearing. (fee Safeway Stares, li:c. v. City of Burlingame (1959) 170 Gal.App.2d 6~7, 645-47.) - It is well settled that duo process protections do not attach in ail administrative proceedings. (Horn v. Cpunty of Ysntura 979) 24 Ca1.3d 6U5, X12 (1~'orn).) Itath~r, due process is guaranteed only in administrative quasi judicial proceedings, and oat in quasi-legislative proceedings. (Ibid.) ' Quasi judicial proceedings involve an adjudicative function wherein city officials serve in a judgc- likc capacity. The purpose of a quasi judicial proceeding is to apply a Legislative nzle to an existing set of Facts. (Huai, supra, 24 Ca1.3d at p. 613; Str'utnsky v. San L71e~o Caur:ty Employees Retirement Assn. (1974) 11 Cal.3d 28, 35, n.2 (Strumsky}.) Quasi judicial proceedings ;must often arise in the context of an appeal from the Punning Commission to t1Ye City Council. Far example, Planning Commission actions nn site development review permits, conditiana] use permits, variay;ces, and tentative subdivision raaaps ~:an be appealed to the Council and. all these axe quasi ;judicial actions. Ht~wever, the Dublin Municipal. Code provides far many other quasi judicial proceedings. {See Attachment 3 for a List cif Quasi~Judicial Proceedings provided in the l~ublirr Municipal Code.) Quasi-legislative proceedings are those in whiClt city officials serve in a policy-making capacity. The purpose of aquasi-legislative proceeding is to create a rule of general applicability for future guidance, (Horn. supra, 24 Ca1,3d at p. 6] 3; Strumsky, sr~pr~a, l l Cal.3d at 35, n.2.} As compared to a case-specific quasi judicial decision? aquasi-legislative proceeding has a much broader scope that applies to future cases. Quasi-legislative proceedings in the City include, but are not Limited to, actions an genera] plan amendments, specific plan arncndmcnts, zoning decisions and development agreements. Page 2 of 6 It is notable that the State Administrative Procedure Act {APA} seeks to ensure fair and impar~~ adjudicatory proceedings by prnhlbiting all ex pane contacts Government Code § 11430.1. Although the APA does not apply to 1oca1 govem~m.ents, a recent California Appeals Court decision used the prav:isions of the APA as the standard for imposing due process protections in an administrative proceeding..(Nightlife laa~tners, supra, 108 Ca1.App.4a' at pp. 91-92.) Still, in Flugstad v. G"ity of S'an Muted (195'7) 156 Cal. App.2d 13$, 141, the Court upheld a city council's decision to grant a variance far • construction and operation of a service statio,~, even though the councilmen had visited the proposed site outside the administrative praceeding..The Court held that the councilmen had fully disclosed the views from their independent investigation on the record, and persons protesting the variance were given the opportunity to challenge these views. (Ibid.) Thus, the Currelit State of the law appears to lab that ex purte contacts are permissible provided that the nature of the contacts is disclosed on the record of the proceeding sa that the parties have an opportunity to rebut or otherwise provide their views an the information ahtained £rom the contacts, 'What Options does the Cit~r have in Adop~irig an ~x paste Contact~Po1 Given the state of the law, the Council may wish to consider the' following, two options when considering the adoption of an ex put'tP contacts policy. 1. First, the City may permit ~x pane contacts and require gi.ty ofhoials tQ report these contacts on the record at a quasi-judicial pfoe~ding, (see Attachment 1.} Permitting exparte r~rttacts imposes rid limits on clty officials and is therefore an easily-applied rule. Additionally, city officials would not need to avoid contacts regarding pending adjudicatory hearin;~s: The disclosure of ex paste contacts facilitates a more transpaxer?t bearing lrrocess and overall fairness bes;at~se the contact xs disclc~aed ox+ tlto record at the gtammencement of the hearing. 1-Iowever, . this palicypmvides less legal protection from charges ofbias or unfairness than the second option. Furthermore, the accuracy of the disclosure ofthe contact is dependent on the recollection of the City vf~icial and thus vulnerable to a challenge as an inaccurate or incomplete disclosure. 2. Setoncil, the City may prohibit cx paste Contacts at~d require city officials to report any such contacts on the record at aquasi-judicial prgceeding. (ScE Attaclunent2.) . Prohibiting all cx paste contacts provides city officials with. abright-line n11o in defining the • . communicaH.on they may havo with the public and involved parties regarding a pending quasi-judicial proceeding. A prohibition on cx purt~ contacts fosters trust lactween the public and city officials and ~ril1 prevent aCCi15at10n5 of bias OP unfairness. Although the ban'sACrifices the valpable c47mmuilleatiofl • between a. governing body and its constitt~cnts, this option goes the.farthest toward assuring fairly- conduc#ed hearings, Finally, this option provides the mast amount of protection from charges of bias or urt#airness, thereby reducing the possibility oflitigation~ What. communications ate covered ~bX the Proposed Ex paste Co facts Polity. _ _ ti s~ The Proposed ~x paste Contacts Policy options would apply to contacts such as individual conversations, written communications, electronic mails, telephone calls, and visits to sites that are the subject of aquasi-judicial proceeding. Page 3 of fi The Proposed Ex pctr~e Contacts Policy options would rrot apply to communications made a~ t~ recaxcl ak the proceeding. In all options, in the event that information is received outside the_ proceeding, the information roust b~ (iis4lc~sed on the record at the proceeding. To whore would the Proposed .Cx pane Contacts Policy antians aunlv`? The Ex parse Contacts l'c~licy pp#igtas would apply to all city officials that preside over quasi- . judicial proceedings, including, but not lionised to, members of the City Council, member of the Planning Commission, the Zoning Administrator, the City Manager or desigmee, and any other city employee pr officer that acts as a decision maker its a quasi judicial prooepcling, u cl de T' for Officials to Disclose r Wn recommend each agenda that includes a quasi judicial item include a Lima far officials to disclose any ex parte contacts the member may have had. This will he a reminder to officials to disclose . any such contacts, Each agenda would include a state.~ent sucfi as the following prior to the staff presentation: "Disclosure of ex purse r~ontacts (persons involved in ex parse contact, the content of the ex parse contact (what information was provided, what was discussed, what was said}, when the ex part wntac;# occurred and K+here the exparte cantao# occurred)." . If an ex pa~~e contact has been made, the minimum amount of disclosure required includes the persons involved in the ex parse contact, the content of the ex pa~~te contact (e.g., what infoirnation was provided,`what was discussed, what was said), when the ex parse contact occurred and where the ex purte contact occurred. A good way to remember this is "who/what/when/where", To What Proceedings would the Prnr,osed Ex part~,..,C,ctntacts Polic~aptions apply? To determine when the Proposal Exparte Contacts Policy applies, it is importazLt to distinguish between quasi judicial and quasi-legislative proceedings, The Prapased.Policy options only apply to quasi judicial proceedings. The Policy options do not apply to quasi-legislative proceedings. Because a quasi judicial proceeding may render a decision that deprives the party before it of a property interest, the government must provide due process protections. (Hors:, supra, 24 Cal.3d at pp. dl2-l3,) Conversely, aquasi-legislative proceeding does not implicate due pmcess protections, Because there is no concern for a deprivation of a property interest, (I'birl.) Some proceedings may defy chaxacteriratian as either a pure quasi judicial or pure quasi- lcgislativc proceeding, When a proceeding involves both adjudicative and legislative elements, it may be characterized as a mixed quasi-judiciallquasi-legislative proceeding: ' 1"or purposes of the Proposed Policy options, mixed quasi judiciailquasi-legislative proceedings arc treated as quasi-legislative proceedings. The quasi-legislative function of a mixed procecding,is of forezr~ost importance because the adjudi4ation of the case cannot ~?e decided until the legislation which applies to the case is settled. ~ Therefore, the primary element of a mixed proceeding is legislative, and the Ex parse Contacts Policy would not apply. Mixed quasi judiciallquasi-legislative proceedings in the City Page 4 of b include, but are not limited to, a site development permit or conditional use~perrnit approval that is contingent upon a General Plan amendment nr a rezoning. For example, the Sorrento at T~ublin Ranch Area li project included both quasi judicial and quasi- legislativeactions. Un September 13, 2005, the Planning Commission approved Mash Tentative Tract Maps for Area F West (Tract 7641 }and Area F East (Track 7651), far the Sorrento at Dublin Ranch Area project. (Planning Carnmissian Reso. 05-52.) This vesting tentative map action cax~skitutes a quasi- judicial proceeding, ~awever, this tentative snap approval was Contingent upon the City Council's approval to amend the Planned Development for Dublin Ranch Area F North, to increase the number of units permitted under the Planned Development, (City Council (]rd. 24.05.) Because the Sorrento ak Dublin Ranch Area F project involved a quasi judicial action contingent upon aquasi-legislative action, it would be treated as quasi-legislative; thus, the Ex Partc Contacts i~alicy.would not apply. What if the Prohibifiion on Ex pat~te Contacts option,~Attachm,_ end) is adopked and is vic,~ated? If a city officer engages in ex: purte contacts with a party to a quasi judicial proceeding or inadvertently learns of information regarding the quasi judicial proceeding, any issue regarding the ex parts contacts maybe cured through disclosure an the record at a subsequent proceeding. (Flagstud v, City of San Mateo, supra, 156 Ca1.App.2d at pp. 141-42.) Such disclosure on the record cures the Ex parts Contacts Policy violation Because it affords all parties the opportunity to hear and respond to the communication before the body. (,Chid.} . The Policy also provides that if the Policy.is violated, it shall not constitute independent grounds for invalidating the decision. Despite this language in the Policy, it would not prevent tha parties from arguing that due prac:ess was violated, ~ . What if a Court Finds an Improper Ex party Contact has been made?, As elected ofricials responsible to an electorate, it seems counterintuitive to adapt a policy which prohibits communication between city officials and city residents regarding pending quasi judicial proceedings. However, a breach of due process rights for persons involved in a pending quasi judicial proceeding e.ata have serious consequences. Twa recent Courk of Appeals due process cases invalidated decisions from administrative hearings where the hearing afflcials did not provide the "appearance of £airness~°' (Naghtd~{e Partners, supra, i q8 Gal.App.4`h at p. 40; Quintero v. City of Santa Ana (20(k1} 1 ] 4 Cal,App.4ei 81 t), 817 (~luintero).) Additipnally, the Courtin both decisions awarded attorney's fees to the plaintiff asserting a due process violation. (1Vightli~e 1artners, .supra; 1 t?$ Cal,App.4`n at p. 45; Qatntero, supra. 114 Cal.App.4a' at p. R 1$,) Although both decisions addressed due process claims arising from the commingling of advisory and prosecutorial functions by city attorneys, the reasoning of the cases is applicable to cx parts contacts by city officials. In Nightlife Par#trers, the Court held that "due process in an administrative hearing also demands an appearance of fairness and the absence of even a probability of outside influence an the adjudication." (108 Cal.App.4~ at p. 90.) Tt would seem that such "outside influence" might be inferred from a city official's ex parts contacts outside the quasi judicial proceeding. In Quintero, the Court held that the~City "must exercise vigilance and caution, to ensure not only fairness, but the appearance of fairness." (114 Cai.App,4`~ at p. 817.) These due process cases require the city officials to be impartial and fair, as well as appear impartial and fair, when making decisions in administrative hearings. Page 5 of 5 i~'inally, good public policy would seem to require that city officials execute their adjudicatory dttties~with fairness az~d impartiality, Prohibiting ~xparte contacts fosters trust between city ot~"icials and pity residents, and provides a dear rationale far why a city officiai mus# rei'rain from communicatint; about a pending adjudica#inn: RECOMMENIIATION Staff recommends the City Council hear Sta£t~s presentation, cansider any comments from the public, deliberate and adopt Uptian l ar 2, or provide other direction Sta#'f also recommends that tf~e Council direct the Staff to include a time to disclose any contacts on any agenda that includes aquasi- judicial item. Page 6 of b ' ~ OPTION 1 REStILUT.[O1V NO. • A RESOLUTION OF THE CITY CCIUNCII[~ O1~ TF~E CITY OP DUBLIN ESTABLISHING A PQLICY REGARDING L~'X PAR7'~ CONTACTS IN QUASI-~UI~ICIAL PROCEEDINGS WHEREAS, the City Cauncil, the Planning Commission, the Zoning Administrator, the City Manager ar designee, and other City officers conduct a number of quasi judiciaX ' hearings in the course afpert~rming their duties; WHEREAS, the due process clauses of the [Jnited States and California Constitutions impose certain requirements on local agencies that ~conduot such hearings, including a requirement that decision makers consider only that evidence that is presented at the hearing; WHEREAS, members of #he~ City Cauncil, the Planning Conunission, the caning Administrator, and the City Manager ar designee could potentially receive information pertinent to quasi judicial hearings outside of the forma] hearing, which information is known . generally as "ex pane contacts"; and WHEREAS} the City Council has determined that it would be prudent to have a policy . concerning ex pane con#acts in quasi judicial proceedings that applies to the City Cauncil, the Planning Commission, the Zoning Administrator, the City Manager or designee, and other City Officials that make decisions in quasi judicial pxaceedings; NOW, THEREPO~, the City Council of the City of Dublin does RESOLVE as follows: I. Purpose. The purpose of this policy is to ensure that decisions of the Ciiy of Dublin in quasi judicial administrative proceedings are conducted in an impartial manner and comply with the requirements of Due process under the Constitutions of the United States and the . State of California. 2. Policy. City Off'icials shall permit Co~itacts related to quasi judicial proceedings. , 3. I?isi•Ivsure. City Officials shall disalosv such Contacts on the record of the quasi judicial proceeding, thereby afi`ording interested persons the opportunity to hear and respond to the Contact. In preparing agendas for quasi judicial .hearings, City staff shall include an item for disclosure of ex purse Contacts prior to the opening of the public hearing. 4. AppliGatiora. The Fx parts Contacts Policy s1ia11 apply only to quasi-judicial prc7Ceedyngs and shah oat apply to quasi-legislative car mixed quasi judiciallquasi-legislative pruceings. Page 1 of 3 ~b 5. Effect of Yr`olatian. A violation of the Ex party Contacts Policy shall not constitute independent trou~tds to invalidate any decision by City ~7ffzcials. b. 17efinitio~ts. The following defmitinns shall apply to this policy: ' ``Contacts" means the receipt of any information outside a quasi judicial proceeding that is relevant in ~ quasi judicial proceeding before City Officials. Contacts shay include, but are not limited to, conversations, written communications, electronic mails, telephone calls, and visits to sites that are the subject of a rluasi-judicial proceeding. "City Offs'cials" means the City Council, the Planning Commission, the Zoning Atlrninistratar, the City Manager or designee, and any ether city emplnyee nr officer that acts as a decision maker in a quasi judicial proceeding. "Disclosure" means, at a minimum, the persons involved in the ex parrte contact, the cunteirit of the ex party contact (e.g., what infannAtion was provided, whale was discussed, what was said), -when the ex parte contact occurred and where the ex party contact occurred. "Quasi judicial proceeding" means a City proceeding in which a City Official applies existing legal standards to a particular set of facts that affects an individual or • individuals. . Sif~~si-legislative proceeding" means a City proceeding in which City Officials. . . cxcate a talc of general applicability for future guidance. (quasi-legislative proceedings in the City of I]tsblin include, but are not limited ta, actions an general plan amendments, specific plan amendments, •and zoning decisions, "Mixed quasi judiciaUquasi-legislative proceeding" mesas a City proceeding involving both adjudicative and legislative elements. Mixed quasi-judlGxalfqua5~-~ legislative prc~ceedi~ngs in the City oflau~lir~ include, but are not limited to, site development permit approval that is cnntingertt•upon a. zoning ordinance ' amendment. 7. Eff~etive Date, This Resolution shall talcs effect immediately. 8. S~vsrahiltty Chase, The previsions of this Resolution are severable and if any provi$iort, clause, sentence, word arpa~rt thereofis held illegal, invalid, ttncanstitutinnal, or inapplicable to any p~tsnn or circuxnskances,euch illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance nx their applicability to other persons or. gircum~staz~t:es, • ~ Page 2 of 3 PASSED, ApPROVEA, AND ADOPTED this ~ day of December 2005, by the fallowing vote: AYES: . NOES: ABSENT: A,B~TA,~N; Iv~ayar ATTEST: City Clerk ' 793733-1; 1 ]4.1U41 Pagc 3 of 3 ' IV OFTlON 2 • )~ESQ.T.r><3'I`TCIN NO. A RESOLUTIUIV U>K TIdE CITY COUNCIL QF TH>E CIiTY OF DUBLIN ESTABLISHING A. POLICY REGAItAING EX PAR?'E CONTACTS !N QUASI-JUDICIAL FIt4CEEUII~IDS WHEREAS, the City Council, tha Planning Commission, the Zoning Acimizaistrator, the City Manager oar designee, and ether City officers conduct a number of quasi-judicial hearings in the course ofperf`orminl; their duties; WHEREAS, tlxe due process clauses of the United States and California Constitutions iixjpnse certain requirements on local agencies that conduct such hearings, including a requirement that. decision makers oansidor only that evidence that is presented at the herring, WHEREAS, meu~bers of the City Council, the Planning Commission, the honing Administrator, and the City lvlanager ar desi~ee could potentially receive information pertinent tt~ quasi judicial hearings outside of the formal hearing, which infc~rmaNon is 1{nnwn gene~a)«y as "ex parts contacts"; and . WiI»R1~,AS, the City Council has determined that it would 6e prudent to have a policy concerning ex paste contacts in quasi judicial proceedings that applies to the City Cauncii, the Planning Commission, the ~onin,~ Administrator, the City Manager nr designee, and other City Officials that make decisions in quasiyudicial proceedings; 1~IQW, TIrIEREFORE, the City Council of the City of Dublin does RESaIi.VE as follows: 1. Purpose. ~'he purpose of this policy is to ensure that decisions of the City of publin in quasi judicial. administrative pmeeeclings are Conducted in an impartial manner and comply with the requirements of bue krdcess under the Constitutions of the United States aBd the State of California. 2. Policy. City Officials shall not intentionally make or receive Can#acts related to quasi- judicial proceedings. Disclosure. ]n the event That Contacts are nonetheless received, City E?fficials shall disclose Such Contacts nn the record of the quasi judicial proceeding, thereby affording . interested persons the opportunity to hear and respond to.the Contact. Tn preparing agendas for r~twsi-judi~;it~l hearings, Gity staflF s1~a11 include an item far disclosure of ex parts Cnntac#s prier #o the opening of the public Meaning, Application. 'I`he Ex pure Contacts Policy shall apply only to quasi judicial proceedings and shall oat apply to quasi-legislative or mixed quasi judiciallquasi-legislative proceedings, Yage 1 of 3 . - 11 5. Effect of Violation. A violation of the ,fix pane Contacts policy shall oat cvnskitute independent grounds to invalidate any decision by City Officials. 6, Definitions, 'Tl~e following definitions shalt apply to this policy. "Contacts" tnea~s the receipt of any infannatian outside a quasi judicial proceeding . that is relevant in a quasi judicial proceeding before City Officials, ~Contaets may include, but are not limited to, conversations, written conununications, electronic • mails, telephone calls, and visits to sites that arc the subject of a quasi judicial prodding, ~ . "City Officials" means #lte City Council, the Planning; Commission, tk~e Zoning Administrator, the City Manager or designee, and any other city employee ar officer that acts as a decision maker in a quasi judicial proceeding. ~ . "Disclostrxe" means, at a minimum, the persons involved in tl7e cx pane contact, the content of the ex ~partri contact (egg,, what infonnatian was provided, what was • discussed, what was said), when the ex parxc ctstitact occurred and where the ex pane contact occurred. "Quasi judicial proceeding" means a City proceeding in which aCity-Official applies - axisting legal standards to a particular set of facts that afl'eCks an individual yr individuals. . "Quasi-legislative proceeding" means a City proceeding iii which City Officials create a rule of general applicability for future guidance. Quasi-legislative proceedings iii the t;:ity of Dublin include, but are riot limi#ed ta, actions on general plan amendments, specific plan amendments, and zoning decisions. "Mixed quasi-judx`ciallquasi-legislative proceeding„ means a Cify proceeding involving both adjudicative and legislative elsirients. Mixed quasi judiciaUquASi- legislative proceedings in the City of Dublin xriclude, >~ut are not limited to, site - - development permit approval that is contingent upon a caning ordinance amendment. 7. Eff~c'tiv~ Date. This Resolution shall take et~`ect immediately. - 8. S`evarahility C'lau~e, The provisions of this Resolution are sec~erable and if any provision, clause, sentence, word ar part thereof is held illegal, invalid, unconstitutional, or inapplictible to any person or circun~stances, such illegality, invalidiky, unconstitutionality, or inaripliaability shall not affect yr impair any of the remaining provisions, clauses, sentences, sections, words or parts thereof of the ordinance or their applicability to other persons or circumskances. Page 2 of 3 ~a ~e PASSED, APP~()~'ED, AND AD~PTI~D this day of December 2Q05, by the fallowing vote: i AYES: NQES: . ABSEN'x': ABSTAIN: - Mayor ATTEST: City Clem - 793732-1; 11},1041 Pale 3 of 3 • r~ - _ ~ ATTACHMENT 3 fist of Quasi-.iudicia! Proceedings provided in the Dublin Municipal Code • Quasi judicial proceedings in the city include, but are not limited to, actions an site development review pexrnits, conditional use permits, variances, and tentative subdivision maps, City Council bearing's to alasc hazardous driveways; City Council or Board 4f Appeals interpretations of the p'ire Code; City Manager hearings to abate abandoned vehicles and appeals to City Council; Tax Administrator heari><1gs for #`ailure to collect or report transient acoupancy taxes and appeals to City Council; Chiei" of Police hearings to suspend ar xevakc fartunctclling permits and appeals to City Council; City • Council hearings to review permits for parades; City Cnunoil hearings far delinquent . payments of solid waste rnanagelnez~t sezvices; City lvla>Yager review 4frecycling facility permits and appeals to City Council; City Council review ofrevaaatian afperrnits under solid waste nnanagemeztt ordinances; City Manager hearings to suspend or revoke animal fanciers permits and appeals to City Council; City Manager hearings to abate a vioious dog and appeals to City Council; City Manager hearings to suspend ar revoke permits for exotic animals and appeals to City Council; City Manager bearings to suspend or revoke licenses to operate bingo gamlrs and appoals to City Council; City Council hearings an appeal regarding public dancing permit issuance or conditions of issuance or the denial or revocation of such permits by the Chief of Palicc; City Council hearings of • admi.nsitrative decisions made by City Manager under the smoking pollution control - ordinances; City Council hearings of decisions made by City Manager under heritage tree ordinances; City Manager hearings to determine whether property consititutes a public nuisance and to propose rehabilitation, repair, removal ar dem4litian of such property and - appeals to City Council; City Manager bearings regarding r~atices and orders to abate graffi'itki an private praprety and appeals to City Council; City Cnunoil hearings to determine whether weeds and refitse constitute a public nuisiance; City Council hearings to review City Manager's axders to abate fly nusinance; City Managlrr hearings regarding impoundment of newsracks; City Council hearings regarding initial application of cable television and comrnu~iication sysytems franchise applications; City Council hearings to review Chief of Police's decision to deny or revak a peddler permits; City Manager hearings regarding permits far massage establishments and massage services; City Manager heaxxngs io xeview City En.gineer's decisxnn on encroachments; City Council hearings reglardin,g chtxnges i>~ street names; City Council hetuings regarding establishment afundergraund utility distribution facilities district; City Council hearings to suspend ar revoke grading permits; City Council hearings regarding issuance, denial, cancellation, or conditioning of a permits under watercourse protection ordinances; City Council hearings regarding variances and violations offload control ordinances; City Council hearings regarding application afbuilding regualtian administration ordinances; City Council hearings regarding application ofwaste management plan axdinxnces; Alameda County Healtb (3f~icer car City Council hearings tc~ determine whether there is a public nuisance and wether to abate the nuisance; ~Flell g#andards Advisory hoard or City Council hearings regarding violations under the wells ordinances; and Planning Commision beatings and City Council hearings regarding proposedright-nf way lints. 794878-I; 114.I00 [ _ 1 1~~a~ Proposed ~x Pane Contacts Policy 8:36 p.m. 8.3 {61020) City Attorney Plizabeth Silver presented the Staff Report and advised that ex pane contacts are communications or other information, including site visits, received outside the hearing process that are relevant in an adjudicatory matter before City officials. The City Council will consider adopting an Ex Parfe Contacts Policy in order to protect against the deprivation of procedural due process rights of parties in administrative . proceedings where a property right is at stake. Staff recommended that the Council adopt a resolution permitting ex pane contacts in quasi judicial proceedings - or -adopt a resolution prohibiting ex pane contacts in quasi judicial proceedings - or -provide other direction to Staff. Crn. McCormick asked if the City Attorney would advise the Council when an issue was considered quasi judicial. City Attorney Silver indicated that a quasi judicial issue typically occurred during an appeal from a Planning Commission action; however, there were other occasions that it could occur. A memo would continue to be provided to the Council advising them of a quasi judicial action, and it would now also be included on the City Council agenda. Crn. Zika asked if a Councilmember could do a site field visit if the resolution prohibiting contact was adopted. City Attorney Silver advised that if, under Option #2, a Councilmernber went to a site for the specific purpose of looking, the site visit would need to be disclosed. Council and Staff discussed various information gathering scenarios, including site visits and communications, and appropriate levels of disclosure. If the Council wanted to do a site visit, it was important for them to do it as a group, even if it delayed the issue. The Council concurred that option #2, rohi itin ex pane contacts, was the better practice as it was important for the entire Council to receive the same information to be fair to the person whose rights were at stake. DUBLIN CITY COUNCIL MINUTES VOLUME 24 REGULAR MEETING December 20, 2005 PAGE 479 Attachment Z- ~tiw~w.ci.dublin.c~.us . 15~,~ On motion of Cm. ~ Zika, seconded by Cm. Hildenbxand and by unanimous vote (Mayor Lockhart absent), the City Council adopted RESOLUTION NO. 234 - 05 ESTABLISHING A POLICY RI;GARDIi~iG ~XPART~'CONTACTS IN QUASI ;jUDiCIAL PROGEI;DTNGS. RECESS . 5:50 p,m, Mayor Pro Tem Orave#z called for a brief recess, The meeting reconvened at 8:55 p.m. with all Cauncilmembers present (Mayor Lockhart absent). . City of Dublin Draft Comment Letter on the Dublin Hi school Facilities Master Plan Draft Environmental Im act Re :rt 8:~5 p,m. 8.4 (400-ZO) Public Works Director Melissa Morton presented the Staff Report and advised that the City Council would consider comments prepaxed by Staff related to the proposed Dublin High School expansion. At present, the High School is 165,557 square feet and has an enrollment of 1,300 students and 95 staff. The proposed Draft Environmental Impact Report far the Dublin High School Master Plan indicated that at build out in 2013, the High .School would expand to accommodate 2,500 students and 166 staff. The draft response letter expressed concerns related to traffic and circulation, parking and noise. Cm. Hildenbi~and asked where the visitor parking would be and if they would be included in the Staff .number of spaces. Kim McNeeley, Dublin Unified School District, advised that the current and future Staff lot included .visitor parking, Public Works Director Morton advised that, collectively, fhe fiwo lots would provide enough parking and should be weirsigned to incorporate the visitors and students ' DUBLIN CITY COUNCIL MINUTES VQLUME 24 REGULAR 1VIEETING ~ - December 20, 2005 PAGE DSO www.ci.dub~in.ca.us RESOLUTION N0.234 - OS A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN 1tRlMR~~f1Rf~A irRRRlFiY ~ ESTABLISHING A POLICY REGARDING EX PAR~'E CONTACTS IN QUASI JUDICIAL PROCEEDINGS WHEREAS, the City Gauncil, the Planning Commission, the Zoning Administrator, the City Manager • • or designee, and other City officers conduct a number of quasi judicial hearings in the course of performing their duties; 'WHEREAS, the due process clauses of the United States and California Constitutions impose certain requirements an local agencies that conduct such hearings, including a requirement that decision makers consider only that.evidence that is presented at the hearing; WHEREAS, members of the City Council, the Planning Comsr~ission, the Zoning Administrator, and ' the City Manager or designee could potentially receive information pertinent to quasi-judicial hearings outside of the formal hearing, which information is known generally as "ex pane contacts"; and WHEREAS, the City Council has determined that it would be prudent to have a policy concerning ex pane contacts in quasi judicial proceedings that applies to the City Council, the Planning Commission, the -Zoning Administrator, the City Manager or designee, and other City Officials that make decisions in quasi judicial proceedings; NOW, THEREFORE, the City Council of the City of Dublin does RESOL- VE as (allows: 1. Purpose. The purpose of this policy is to ensure that decisions of the Ciry of Dublin in. quasi judicial administrative proceedings are conducted in an impartial manner and comply with the requirements of Due Process under the Canstitutians of the United States and the State of California. 2. Policy. City Officials shall not intentionally make or receive Contacts related to quasi judicial proceedings. 3. disclosure. ' In the event that Contacts are nonetheless received, City Offciais shall~disclose such Contacts on the record of the quasi judicial proceeding, thereby affording interested persons the apporiunity to hear and respond to the Contact. In preparing agendas for quasi judicial hearings; City staff shall include an item for disclosure of ex pane Contacts prior to the opening of the public hearing. 4. Applreation. The Fx parts Contacts Policy shall apply only to quasi judicial proceedings and shall not apply to quasi-legislative or mixed quasi judiciaUquasi-legislative proceedings. 5. E,,~/ect of Violation. A violation of the Ex pane Contacts Policy shall not constitute independent grounds to invalidate any decision by Gity Officials. ~ . 6. Definitions. The following definitions shall apply to this policy: _ "Contacts" means the receipt of any information outside a quasi judicial proceeding that is relevant in a quasi judicial proceeding before City Officials. Contacts may. include.__but_are nit. limitacl_ to Reso # 234-Q5, Adopted 12f2Ul~5 Pale 1 of 2 Attachment l7~ ~ conversations, written communications, electronic mails, telephone calls, and visits to sites that are the subject ofa-quasi judicial proceeding. . "City Officials" means the City Council, the Planning Commission, the Zoning Administrator, the City Manager or designee, and any other city employee or ofTicer that acts as a decision maker in a quasi- judieial proceeding. "Disclosure" means, ~at'a minimum, the persons involved in the ex pane contact, the content of the ex parrte contact (e,g., what information was provided, what was discussed, what was said), when the ex parse contact occurred and where the ex parse contact occurred. "Quasi judicial proceeding" means a City proceeding in which a City Official applies existing legal standards to a particular set of facts that affects an individual or individuals. - "Quasi-legislative proceeding" means a City proceeding in which City Officials create a rule of general applicability for future guidance. Quasi-legislative proceedings in the City of Dublin include, but are not limited to, actions on general plan amendments, specific plan amendments, and zoning decisi:ans. "Mixed quasi judiciallquasi-legislative proceeding" means a City proceeding involving both . adjudicative and legislative elements. Mixed quasi judiciaVquasi-legislative proceedings in the City ofDublin include, but are not limited to, site development permit approval that is contingent upon a inning ordinance amendment. 7. E,~fectiveDate. This Resolution shall take effect immediately. 8. Severabflity Clause. The provisions ofthis Resolution are severable and ifany provision, clause, sentence, word or part thereof is held illegal, invalid, unconstitutional, or inapplicable to any person or circumstances, such illegality, invalidity, unconstitutionality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, words ar parts thereof of the ordinance or their applicability to other persons or circumstances. - PA55ED, APPROVED, AND ADOPTED this 20'~ day of December 2005, by the following vote: AYES: Councilmembers Hildenbrand, McCormick and Zika, and Mayor Pra Tern Oravetz NOES: None ABSENT: Mayor Lockhart ABSTAIlY: None ' ~ - Maydr Pro Tem ATT ST: - --~M i y Clerk Reso # 234-DS, Adopted 12120/05 Page 2 of 2 ~D RESOLUTION NO. XX-11 A RESOLUTION OF THE CITY COUNC#L OF THE CITY OF' DUBLIN AMENDING AND RESTATING THE POLICY REGARDING EX PARTE CONTACTS IN QUASI-JUDICIAL PROCEEDINGS WHEREAS, the City Council, the Planning Commission, the Zoning Administrator, the City Manager ar designee, and other City officers conduct a number of quasi judicial hearings in the course of performing their duties; WHEREAS, the due process clauses of the United States and California Constitutions impose certain requirements on local agencies that conduct such hearings, including a requirement that decision makers consider only that evidence that~is presented at the hearing; WHEREAS, members of the City Council, the Planning Commission, the Zoning Administrator, and the City Manager or the City Manager's designee could potentially receive information pertinent to quasi: judicial ~ hearings outside of the formal hearing, which information is known generally as an "ex parfe contact"; and WHEREAS, the City Council by adopting Resolution Na. 234-05 previously determined that it would be prudent to have a policy concerning ex parfe contacts in quasi-judicial proceedings that applies to the City Council, the Planning Commission, the Zoning A~ministratar, the City Manager or designee, and other City Officials that make decisions in quasi-judicial proceedings, and now desires to amend and restate that policy thereby superseding Resolution No. 234-05; . NOW, THEREI"ORE, the City Council of the City of Dublin does RESOLVE as follows: 1. Purpose. The purpose of this policy is to ensure that decisions of the City of Dublin in quasi- judicial administrative proceedings are conducted in an impartial manner and comply- with the requirements of ~ Due Process under the Constitutions of the United States and the State of California. - 2..Poficy. City Officials are not prohibited from making or receiving Contacts related to quasi-judicial proceedings. 3. Disclosure. City Officials shall disclose any such Contacts on the record of the quasi judicial proceeding, thereby affording interested persons the opportunity to hear and respond to the Contact. In preparing agendas far quasi-judicial hearings, City staff shall include an item for disclosure of ex parfe Contacts prior to the opening of the public hearing. 4. Appiicafion. The Ex Pare Contacts Policy shall apply only toquasi-judicial proceedings and shall not apply to quasi-legislative or mixed quasi-judiciaVquasi-legislative proceedings. 5. Effect of Viola#ion. A violation of the Ex Parfe Gontacts Policy shalt not constitute independent grounds to invalidate any decision by City Officials. , - ~ - - - - - Page 1 of 3 Attachment 6. Definitions. The following definitions shall apply to this policy: "Contac#s" means the receipt of any information outside aquasi-judicial proceeding that is relevant in aquasi-judicial proceeding before City Officials. Con#ac#s may include, but are not limited to, conversations, written communications, electronic mails, telephone tails, and visits #a sites that are the subject of aquasi-judicial proceeding. "City Officials" means the City Council, the Planning Commission, the Zoning Administrator, the City Manager or the City Manager's designee, and any other city employee or officer that acts as a decision maker in aquasi-judicia! proceeding. "Disclosure" means, at a minimum, disclosure of: the persons involved in the ex parte contact, the content of the ex pane contact (e.g., what infarma#ion was provided, what was discussed, . what was said), when the ex parte contact occurred and where the ex pane contact occurred. "Quasi-judicial proceeding" means a City proceeding in which a City Official applies existing legal standards to a particular set of facts that affects an individual or individuals. "Quasi-legislative proceeding" means a City proceeding in which City Officials create a rule of general applicability for future guidance. Quasi-legislative proceedings in the City of Dublin include, but are not limited to; actions on general plan amendments, specific plan amendments, and zoning decisions. "Mixed quasi judicial/quasi-legislative proceeding" means a City proceeding involving both adjudicative and legislative elements. Mixed quasi judiciallquasi-legislative _ proceedings in the City of Dublin include, but are not limited to, site development permit approval that is contingent upon a zoning ordinance amendment. . 7. Effective Date. This Resolution shall take effect immediately and upon becoming effective shall supersede Resolution. No. 234-05. 8. Severability Clause. The provisions of this Resolution are severable and if any provision, clause, sentence, ward or part thereof is held illegal,. invalid, unconstitutional, ar inapplicable #o any person or circumstances, such illegality, invalidity, uncons#i#utianality, or inapplicability shall not affect or impair any of the remaining provisions, clauses, sentences, sections, wards or parts thereof of the ordinance or their applicability to other persons or circumstances. Page 2 of 3 PASSE©, APPROVED, AND ADOPTED this 6th day of September 2011, by the following vote: AYES: NOES: ABSENT: ABSTAfN: Mayor ATTEST: City Clerk ~67izoa.3 F Page 3 of 3