Filing Number: 92-01
Subject: Ex Parte Communication
Keywords: appearance of impropriety, appointed official, bias, board member, code variances, communication, County board, Department of Land Use, impropriety, land use, public notice, real estate, undue influence, variance, vote, zoning
Decision By: L. Susan Faw, Ethics Commission Counsel
Contact Email: admin@nccethics.org
 
Status: Active

Question:

           Whether it would violate the New Castle County Code of Ethics ("Ethics Code") if, prior to the hearing on a requested variance, the Board of Adjustment ("Board") accepted an invitation from the applicant for an on site meeting and inspection.

Conclusion:

           There would be an appearance of impropriety if, prior to the hearing on a requested variance, the Board accepted an invitation from the applicant for an on site meeting and inspection.

Facts:

           Members of the Board are County officials covered by the Ethics Code.1 The primary purpose of the Board is to consider property owners' applications for variances from the New Castle County Zoning Code. Upon filing an application for variance with the County's Planning Department, notice of the application and hearing date is given the public through publication in a newspaper of general circulation. Adjacent landowners receive notification by mail.
 
          At the public hearing before the Board, the applicant has the opportunity to present evidence in support of the requested variance. Interested persons also have an opportunity to be heard and may present evidence in support or in opposition. After the evidence is presented and the record of the hearing is closed, the Board deliberates to consider the evidence and render its decision. The hearing before the Board is the time and place at which interested persons may hear all evidence regarding the requested variance and respond. The Board's acceptance of an applicant's invitation to a nonpublic on site meeting and inspection in advance of the hearing would subvert the public hearing process.

Analysis:

           It would give the applicant an opportunity to communicate with the Board concerning its requested variance without that communication being heard by interested persons, thus depriving those persons of the opportunity to respond. To the public, such ex parte contact would create the appearance that the applicant was seeking support for its variance for reasons which it did not want subjected to public scrutiny.
 
          A nonpublic on site meeting and inspection would also present an opportunity for the applicant (or its representatives) to interact with the Board in an informal setting, entirely outside the formal public hearing process. To the public, this would create the appearance that the applicant was attempting to ingratiate itself with the Board so as to gain approval of its application.
 
          Sec. 2-30.2(g) of the Ethics Code provides:
 
"County officials and county employees shall avoid an appearance of impropriety." An "appearance of impropriety" is defined as:

The conduct of a county official or county employee which does not constitute a conflict of interest but which undermines the public confidence in the impartiality of a governmental body with which a county official or employee is or has been associated, by creating an appearance that the decisions or actions of the county official, county employee or governmental body are influenced by factors other than the merits.2

Finding:

           Any ex parte communication between an applicant and the Board, such as a nonpublic on site meeting and inspection prior to the public hearing, would create the appearance that the Board's decision regarding the requested variance is "influenced by factors other than [those presented at the public hearing and thus - other than] the merits" in violation of Sec. 2-30.2(g) of the Ethics Code.3
____________________________
L. Susan Faw, Ethics Counsel
June 12, 1992

Footnotes:

1 See Sec. 2-30.1. Definitions. "County official."
 
2 See Sec. 2-30.1. Definitions. "Appearance of impropriety."
 
3 This advisory opinion is not intended to address the propriety of an on site inspection by the Board should the Board determine, after hearing the evidence, that such an inspection is necessary in order to render a decision on an application for variance.