Transcript Public Meeting or Public Hearing: What is the Difference?

BECOMING A MORE
EFFECTIVE COMMISSION
MEMBER
RANDALL D. VAN VLECK
GENERAL COUNSEL
NEW MEXICO MUNICIPAL LEAGUE
WHAT’S IT ALL ABOUT?


As a Commission Member you are a pivotal
partner in determining the future of your
community.
How you conduct your activities, your
meetings, your decision making, will affect
how you are perceived in the community.
OUR GOALS FOR TODAY




Provide you with a road map to help you be
an effective commission member.
Introduce you to concepts & terminology
involved in planning and zoning.
Help you to avoid pitfalls that may lead to
liability for you or your governmental
agency.
Provide you with an overall view of
commission responsibilities.
LIFE IN THE FAST LANE, OR
LIVING AND WORKING AFTER
APPOINTMENT



Being appointed to the P & Z Commission
could dramatically affect both your personal
and work life.
You control, to a certain degree, the level of
the effect .
Some things, however are not in your
control.
TEAMWORK
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OPTIONS:
Completely immerse yourself in the issues
and become an “expert”.
Hire, at your own expense, experts to assist
you in all things.
Rely on the expertise of Staff and other
Commission Members.
TEAMWORK


Teamwork is the natural consequence of
shared expertise.
Decisions made from input of all
Commissioners as well as staff will be better
for the community than those strong-armed
through by a few individuals.
ZEALOTS

Band standers

CAVE People

BANANA


Build absolutely nothing anywhere near anything
These are among the most frustrating
people on earth.
ZEALOTS

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Are detrimental to effective government.
They do not take the time to think through a
decision.
They are therefore lost as a resource in the
form a of another valid point of view.
BEING A GOOD TEAM MEMBER

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Ask questions of these types of people.
Solicit their opinions on specific matters.
Make them feel as though they are a part of
the team.
If you disagree with them---take time to
explain why.
If you agree with their position---do
likewise.
PERSONALITIES



Personalities DO HAVE AN IMPACT on the
workings of the Commission.
Personalities MUST NEVER be allowed to
substantially interfere with the business of
running the government.
All members of the Commission have the
right and DUTY to speak out on issues of
community importance.
DO UNTO OTHERS

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In dealing with each other you must above
all BE OPEN AND HONEST.
Present your position clearly AND
FACTUALLY
LISTEN to the other point of view.
DO UNTO OTHERS

The degree to which you are honest in your
personal dealings with fellow
Commissioners is quite often that degree to
which you are effective in influencing
decisions.
WHAT?
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On important issues we tend to try to coerce
rather than influence decisions.
We embellish the situation
We omit critical facts
We use strong arm tactics
Sometimes even threats or “extortion” or
“horse trading.”
WHAT?


These tactics are rarely successful in the
long run.
The most influential people are those upon
whom fellow Commissioners can rely on for
integrity, honesty and trust.
IN THE BEGINNING

Citizen Participation
 Sharing expertise with Commission
Members.
 Assisting Government in implementing
policy.
 Providing citizens a public forum in which
to participate in government affairs.
COMMISSION RESPONSIBILITIES

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Establish policy.
Voice concerns, suggestions, and opinions of
constituents.
Report to constituents on important issues
and decisions.
Monitor the usefulness and effectiveness of
programs and services.
COMMISSION MEMBERS’
RESPONSIBILITIES
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Attend all Commission meetings, work
sessions, and committee meetings.
Be well-informed on issues and agenda
items in advance of meetings.
Contribute skills, knowledge, and
experience when appropriate.
Listen respectfully to others' points of view.
COMMISSION MEMBERS’
RESPONSIBILITIES
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Participate in organizational decisionmaking, support all decisions of the full
Commission.
Assume leadership roles in all Commission
activities.
Represent the Governmental Agency in a
professional manner to members of the
public and to private enterprise
UNDERSTANDING YOUR
RESPONSIBILITIES

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Responsibilities of a Planning or Zoning
Commission go beyond the enabling
ordinance of the Governmental Agency .
Statutory Law.
Case Law.
Ethics and Public Service
Public Service Ethics is Different
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Laws play a bigger role.
Perception is as
important as reality.
Key concept: decisionmaking in in the public’s
interest.
The Importance of Public Perception
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
Your actions may be absolutely right, but
the public may still question your motives.
Public service is about:

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Doing the right thing; AND
The public’s confidence that indeed the right
thing has been done.
But, not doing the right thing because the
public’s perception may be negative has its
own pitfalls.
The Process
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Step One: Figure out what “the right thing
to do” is.
Step Two: Figure out what the public’s
perception of the “right thing to do” would
be.
Step Three: When needed, balance the first
two steps and follow the path that best
supports public service values.
Ethics versus
Ethics Laws
Ethics Laws

Law = Minimum standards

What we must do

Ethics is what we ought to do
Thinking Beyond Ethics Laws

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Law is only a starting point for
analysis.
Just because it’s legal, doesn’t mean it
is ethical (or public will perceive it to
be so).
Thinking Beyond Ethics Laws

Where do you
want to set your
sights as a public
servant?
Beyond the Law:
Public Service Ethics Principles
Ethics = Values

Six universal ethical values:
Trustworthiness
 Loyalty
 Responsibility
 Respect
 Fairness
 Compassion
Source: Institute for Global Ethics

Trustworthiness
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I remember that my
role is first and
foremost to serve the
community.
I am truthful with the
public and others.
I do not use my
position for personal
gain.
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I avoid actions that would
cause the public to
question whether my
decisions are based on
personal interests instead
of the public’s interests.
I do not knowingly use
false or inaccurate
information to support my
position.
Loyalty

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I safeguard
confidential
information.
I put loyalty to the
public’s interests
above personal
loyalties.

I don’t oppose final
decisions once they
have been made by the
decision makers
except through
internal lines of
communication.
Responsibility

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I promote the efficient use
of municipal resources.
I do not use municipal
resources for personal
benefit.
I take responsibility for
my own actions, even
when it is uncomfortable
to do so.
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I do not use information
that I acquire in my public
capacity for personal
advantage.
I disclose suspected
instances of impropriety
to the appropriate
authorities, but I never
make false charges.
Respect
 I treat elected officials,
other staff and the
public with courtesy,
even when we
disagree.
 I gain value from
diverse opinions and
build consensus.
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I follow through on
commitments, keep
others informed and
make timely
responses.
I come to meetings and
I come to them
prepared.
Fairness
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I honor the laws and
the public’s
expectation that
municipal policies will
be applied
consistently.
I promote equality and
treat all people
equitably.
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I support the public’s
right to know and
promote meaningful
public involvement.
I credit others’
contributions in
moving our
community’s interests
forward.
Compassion
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I realize that some people
are intimidated by the
public process and try to
make their interactions as
stress-free as possible.
I recognize my
responsibility to society’s
less fortunate.
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I consider appropriate
exceptions to policies
when there are
unintended consequences
or undue burdens.
I am attuned to, and care
about, the needs and
concerns of the public,
officials and other staff
members.
Types of Ethical Dilemmas
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Personal Cost Ethical
Dilemmas.
 Situations in which
doing the right
thing may or will
come at a significant
personal cost to you
or the municipality.
 Also known as
“Moral Courage
Dilemmas.”

Right-versus-Right
Ethical Dilemmas.
 Situations in which
there are two
competing sets of
“right values.”
Analyzing Ethical Dilemmas
Three Levels of Analysis
Level I
The Initial Questions

Identify the Type of Ethical Dilemma
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Right vs. Wrong Situation
Personal Cost/ Moral Courage Situation
Ethics involves doing the right thing
regardless of personal costs.
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Analyze each course of action in light of your
legal obligations.
ALWAYS do what the law requires.
Level I Analysis
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How would you like to read about your
actions in the newspaper tomorrow?
Which decision would make your mother
most proud.
What ethical values are involved in this
decision?
Questions to Ask
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Which ethical values are in conflict with
“doing the right thing?”
What is the personal cost of “doing the right
thing?”
What are the facts?
Level II
Additional Helpful Questions
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Strive to build/preserve public confidence.
Consistent with Governing Body/Municipal
code of Ethics?
How would you like others to act when
faced with the same situation?

Is there a common practice/norm?
Level II
Additional Helpful Questions
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Is one decision more consistent with the
Golden Rule?
Are there other stakeholders or members of
the public who should be invited to be a part
of the decision making process?
Level III
More Complex Situations
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These situations typically involve Right vs.
Right situations. (Competing sets of “right”
values)
Identify the conflicting ethical values
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Honesty
Compassion
Loyalty
Responsibility
Fairness
Respect
Some other important value
Level III
More Complex Situations
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Balance the benefits to be achieved against
the harm to be avoided.
Identify your options.
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Is one course of action more consistent with
both sets of competing values?
Is one course of action more consistent with a
value that is particularly important to you?
Level III
More Complex Situations
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Does one decision involve keeping a
promise or your word?
Which decision best reflects your
responsibility as a public servant?
Is there a decision that does more harm
than good?
Level III
More Complex Situations
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Which decision is more respectful of
individual rights?
Which decision is most fair?
Which decision is most compassionate?
Some Traps to Avoid
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Thinking the ends justify the means.
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Rationalizing.
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There are limits as to how goals are achieved.
Public service is a commitment, but it does not
entitle you to any special treatment or special
benefit.
Everyone is doing or has done the same thing.
Assuming no one will know.
Key Lessons

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It’s your choice how high you want to set
your sights above the minimum
requirements of the law.
Think about your standards and principles
and what they mean in public service
context.
Think about how you would respond if
someone wants you to compromise those
principles.
Thanks to the California
Institute for Local Government
COORDINATION WITH
GOVERNING BODY
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Your role is generally ADVISORY to the
Governing Body.
Governing Body MAY:
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Adopt commission recommendations.
Reject commission recommendations.
Modify commission recommendations.
COMMISSIONS’ ROLE
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To exercise its given authority within its
sphere of influence.
Governing Body responsible for overall
welfare of Governmental Agency .
This may not mesh totally with the
recommendations of the commission.
COMMUNICATIONS FROM
GOVERNING BODY
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Generally communications will come
through staff.
Occasionally direct communications will
occur.
COMMUNICATIONS TO THE
GOVERNING BODY
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Most communications will be in writing.
Reports
Agenda Items
Requests for information
Findings of Fact and Conclusions of Law.
RESPONSIBILITIES OF STAFF
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To assist the Commission in its functions.
To represent the Mayor or County Manager
and their assigned department.
Provide professional and technical advice,
Perform the ministerial and housekeeping
functions.
RESPONSIBILITIES OF STAFF
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Prepare, duplicate, and distribute
Commission letters and reports;
Maintain a copy minutes of meetings and
records of hearings and official actions;
Report the attendance of record of each
member to the Mayor or Manager’s office
RESPONSIBILITIES OF STAFF
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Prepare appropriate reports based on the
Commission's action for the Governing Body
agenda.
Refer draft reports to other Commissions
when applicable.
Review the minutes and agendas of other
Commissions and summarize them for the
benefit of the Commission when
appropriate
RESPONSIBILITIES OF STAFF
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Maintain a current copy of the
Commissioner's Manual and bring it to the
Commission meetings.
Secure meeting rooms for Commission
meetings.
Assist in mobilizing resources needed for
research and preparation of various reports.
The Relationship between
Assigned Staff and the
Commission

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The assigned staff to a Commission are
normally employees of municipal
departments.
While the staff’s role is to assist the
Commission, the assigned staff and other
staff assistants are not employees of the
Commission.
At all times the staff is directly responsible
to the department head and to the Mayor
or County Manager.
AVOIDING PROBLEMS WITH
ASSIGNED STAFF
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Commissioners should realize that the assigned staff
to the Commission reports directly to a supervisor
and may not be able to carry our every
recommendation.
Contacts with staff members should clearly be in the
framework of the Commission’s assignment;
Citizen complaints heard by Commissioners should
be referred directly to the assigned staff to the
Commission
Commissioners should not ask for individual
reports, favors, or special consideration
OTHER CONSIDERATIONS
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
If a Commission desires information or a
report which will require an excessive
amount of staff time, the Commission should
request the Mayor or Manager’s permission
to pursue the project.
The Commission should direct the assigned
staff with regard to the urgency of the
referral. Following this procedure will
prevent staff from being diverted from
other priority projects
OTHER CONSIDERATIONS
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Assigned staff are professionals who are
required to provide their best technical and
professional advice both to the Commission
and to the Mayor or Manager.
Occasionally this dual role will result in staff
opposing a Commission recommendation.
In such cases, the Commission receives
copies of the Mayor or Manager’s report at
the same time the Governing Body receives
the report.
Public Meeting or Public Hearing:
What is the Difference?
INITIAL CONSIDERATIONS


Legislative vs. quasi-judicial depends on the
subject matter of the proceeding.
Legislative most common

Gather information
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Citizens
Staff
Other sources
Implement policy based on the information
gathered.
Legislative Decision Making
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Making Policy
Enacting Ordinances
Prescribing a course of action for the
municipality.
Deciding matters that affect the
municipality as a whole.
Quasi-judicial Decision Making
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Decisions affecting the rights of an
individual person.
Proceedings where the body is required to
notify and hear from the parties.
Proceedings where the decision must be
based on evidence “on the record.”
Quasi-judicial Decision Making

When board is empowered to:
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Investigate facts
Weigh evidence
Draw conclusions as a basis for official action.
Conditional Uses, Variances, Special
Exemptions.
Zone Changes?
LEGISLATIVE DECISION
MAKING
Notice
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Provided for in the Open Meetings Act.
Meetings must be open to the public.
OMA requires notice to be reasonable,
Pubic body to determine reasonableness on
an annual basis.
Left to discretion of the public body.
Notice
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Attorney General recommendation.
Open Meeting Resolution
Regular Meeting
Maximum Notice
Agenda requirement
Minutes
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Governed by OMA
Requires
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Date
Time
Place
Members in attendance
Those absent
Substance of proposals considered
Record of decisions made or votes taken
How each member voted
The Law that Applies

Draft Minutes
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Within 10 working days.
Approval or disapproval

At next regular meeting.
Role of Commission Member

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Representative Government
Constituents
Fact Gathering
Decision Making
Procedural Requirements

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
Roberts Rules of Order
Your Own Rules of Order
Randy and Tina’s Rules of Order
Quasi- Judicial Proceedings
Due Process Required

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Court-like
General Subject matter

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Conditional Uses, Variances Special Exemptions.
Zone Changes?
Requirement for Due Process


Procedural Due Process.
Substantive Due Process.
Role of Commission Member


NO CONSTITUENTS
Decision based on what is in the record, not
the collective will or desires of a special
interest group.
Procedural Due Process

Basic Components

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Notice
Reasonable and Meaningful Opportunity to be
heard.
Substantive Due Process

Focused on the result of the hearing

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Arbitrary
Capricious
Based upon substantial evidence in the record.
Otherwise not in accordance with law.
Notice

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Must be reasonable
Must also comply with OMA
Depends on statute
Minutes

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Minutes of official action kept in accordance
with OMA.
Requirements of Substantive Due Process in
addition.
What does this Mean?
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The body must swear the witnesses; and
Provide for cross examination of witnesses.
The body must also avoid ex parte contacts
that would improperly interfere with its
role.
What does this Mean?


All evidence that is presented and admitted
into the record must be considered by the
body.
The Decision must be made solely on the
evidence in the record.
Swearing of Witnesses

The purpose for the oath is to awaken the
witnesses’ conscience and impress the
witnesses’ mind with the duty to tell the
truth in both direct testimony and cross
examination.
Procedure


All people giving testimony before the
Commission shall be sworn.
Exception:

New Mexico licensed attorneys appearing on
behalf of a client and presenting legal
arguments.
Procedure

To assist in the orderly presentation of
evidence, people giving testimony will be
divided into three groups:


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(1) proponents*;
(2) opponents*;
(3) interested people.
* These are “Parties” to the case.
Procedure

To further assist in the orderly presentation
of testimony and preparation of the minutes
of the Commission, all people wishing to
testify, (as well as attorneys representing
clients) will be required to provide their
names and addresses in written form to the
Commission staff prior to being permitted
to testify or address the Commission.
Procedure

Applicants

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Opponents
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State their case
Stand for Questions by Commission
Cross Examination by Parties
Same as above
Interested People

Same as above
Cross Examination


A reasonable opportunity to confront and
cross examine witnesses is all that is
required by the Due Process Clause.
In conducting the hearing, the body need
not adhere strictly to the evidentiary
standards applied by a court for
examination and cross examination, but the
body must adhere to the fundamental
principles of fairness and due process.
Cross Examination

Involves the right of a party to ask
questions bearing on the testimony
presented or the position taken by the
witness.

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It might include exploration of motivation or
bias on the part of the witness, and might even
touch on issues involving conflicts of interest.
Cross examination must always be conducted
politely and professionally; a witness should
never be subjected to badgering or
unreasonable attack by the cross examiner.
Ex Parte Communications

An ex parte communication is any
communication, whether oral or written
that:

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
Involves fewer than all the parties having a legal
interest in the matter;
is about a pending or impending matter within
the jurisdiction of the administrative body;
made to or initiated by a commission member
having jurisdiction over the matter.
Ex parte communication may
include
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Communications with people involved in
the subject matter pending before the
commission.
Communications with people not involved
in the pending matter at all.
Independent investigations such as visiting
the site proposed for development.
Communications made with the best of
intentions.
Permissible ex parte
communications

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Communications for the purpose of
scheduling, administrative matters or
emergency purposes.
Communications with the municipal
attorney
Communications with commission staff (if
any)
Ex Parte Communications

NOTE: This is not to be confused with
communications with the planning and
zoning department; which usually has a
position on planning and zoning matters
and with whom such ex parte
communications would be
IMPERMISSIBLE.
Why are Ex Parte communications are
prohibited?

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
It is not fair to the other party because the
decision maker may be inaccurately
informed.
It is not fair to the other party because the
decision maker may be improperly
influenced.
It is not fair to the other party because the
decision maker is only provided with one
side of the issue.
Why are Ex Parte communications are
prohibited?

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
Even in the absence of actual influence or
misinformation, the other side may
nevertheless feel cheated and believe the
proceedings have been tainted.
The commission can acquire a reputation
for being susceptible to improper influence.
Improper ex parte communications can
invalidate the actions of the commission.
Making its Decision



Commission may render its decision on the
spot.
Recess into executive session to discuss the
matter with a view towards returning in a
short time with a decision.
Decide to render its decision at a later date.
Making its Decision



Commission must issue a written order.
Order must include the factual basis for
issuing the order.
Order must be served on all parties.
Written Order

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
A letter of denial
The issuance of some sort of permit,
whether it be a sign permit, conditional use
or special use permit.
Acknowledgement and enactment of a zone
map amendment.
Findings of Fact


The requirement of findings of fact is
nothing more that the Commissions’
reasons for its action on the application.
The reasons have to be supported by some
evidence in the record, be it written letters
or other information, or oral testimony.
Preparation of Findings of Fact




Commission may prepare findings itself.
May request proposed finds and conclusions
from the parties.
Attorney may prepare.
May prepare a minority report if
appropriate.
Findings of Fact
IT IS IMPERATIVE TO NOTE that the
decision announced by the Commission
CANNOT BE ENFORCED or ACTED UPON
unless and until the written order
containing the findings of fact and
conclusions of law is prepared and filed
with the appropriate authority.