County training reviews impartiality in permitting


(1/23/2021)

By ZACH KAYSER

 

Winona County officials making a “quasi-judicial” decision can cause trouble if they say the wrong thing when deciding a case, county attorney Karin Sonneman said during training on Jan. 14.

Sonneman’s inclusion of the concept in her presentation to county officials might have been an attempt to shed light on an issue that can be murky and undefined. Some government decisions are quasi-judicial and some aren’t. Generally speaking, policy decisions — like whether to create a new rule or fund a program — are not quasi-judicial, while permitting decisions — whether to give a specific citizen a permit — are. During the ones that aren’t quasi-judicial, officials can debate each other and spout off about more or less whatever they feel like. But if they are called to make a quasi-judicial decision, impacting a specific person or entity, they have to avoid appearing to have made up their minds before hearing all the evidence. Their words or actions might be used later to invalidate their decision.

Since the officials are acting as a sort of judge — for example deciding whether a property is in compliance with zoning law — they are expected to remain impartial until they have handed down their decision. If the zoning board does not refrain from bias while they’re interpreting zoning law, it arguably violates the due process rights of individual people or companies seeking permits and variances. A city council or other legislative body can create a law, but it’s up to judges, juries and quasi-judicial bodies to decide whether the actions of individuals are in compliance with the law and give those individuals a fair hearing while they do it. 

There’s also no statute in Minnesota that specifically describes what counts as bias on the part of an official. Judges define it on a case by case basis, working from the facts and case law written by judges before them. If a judge invalidates the decision of a quasi-judicial board because they supposedly didn’t give an applicant due process, it’s a bit like during a criminal trial, a prospective juror is excluded because someone alleged that juror exhibited bias. 

In the example of the Winona County Board of Adjustment (BOA), Olmstead County District Court Judge Kevin Mark decided the BOA had, in fact, failed to live up to the standard while it was considering a proposed expansion to Daley Farm. He ruled in a decision last month, handed down during a hearing of the lawsuit filed by Daley Farm against the BOA.

“If we allow it to go and say, ‘Gee, they said they were going to be fair,’ when clearly they could not be, we are just going to add to the skepticism and the cynicism and the lack of faith in these institutions,” he said. “We’ve got to play by the rules, folks, and the rules were clearly broken in this instance.”

The county’s counterparts on the Winona City Council almost fell into quasi-judicial quicksand in May of last year when council member Pam Eyden started to give her own opinion about a proposed change to the city’s comprehensive plan. City Attorney Chris Hood quickly jumped in to tell her she should hold off on commenting until the public had a chance to be heard. 

“Thank you, Chris, I forgot where I was,” Eyden said. 

Winona County Attorney Karin Sonneman has cautioned officials to not speak out of turn when operating in a quasi-judicial role. She did so again during a training session earlier this month. 

“Every public official, especially those in land use areas, wears two hats,” she said. 

One is that of a private citizen and the other  of a public official. It is important that people acting on the county’s behalf understand they wear the latter hat, she said. 

In addition, zoning officials could not take things into consideration other than what was in the official record, Sonneman said. 

“You can’t make a decision based on what you heard at the cafe or what you heard from somebody who was trying to bend your ear about it,” she said. 

Sonneman’s advice is in line with the League of Minnesota Cities, which said in its “Zoning Guide For Cities” that zoning bodies should consider only the records when deciding whether an applicant is in compliance. According to the LMC, a good way to avoid the perception of bias is for the body to approve applications out of hand if they comply with zoning law. 

“Due process and equal protection under the law demand that similar applicants be treated uniformly by the city,” the LMC said in its paper. “The best process for ensuring similar treatment among applicants is to establish standards in the ordinance and to provide that if standards are met, the zoning permit must be granted.”

That way, the board avoids the possibility of appearing “arbitrary or capricious,” legalese for a decision that is unfair or interpretations of the rules that aren’t the same among different applicants. 

During the county training earlier this month, Sonneman responded to pointed questions about the county’s compliance with other administrative laws, but the portion of her talk that dealt with quasi-judicial decisions went by quietly. 

Speaking with the Post on Friday, Sonneman said she puts together an annual “Orientation Memo” to new officials that warns them they are now under new expectations, including when they make quasi-judicial decisions. 

Asked whether she thought Winona County officials had a good understanding of quasi-judicial decisions, Sonneman responded, “We hope they do, because we put on the training.”

 

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