By Miriam Raftery
July 23, 2019 (La Mesa) – An attorney with Californians Aware (CalAware), an organization that protects the public’s rights in open government matters, has advised ECM that Councilman Colin Parent should likely recuse himself from tonight’s vote on the La Mesa Farmer’s Market for showing bias prior to public testimony.
Four applicants have submitted applicants. Three would keep the market downtown and one, Grossmont Center, would move it to the regional shopping mall.
ECM sought Calaware's opinion after Councilman Parent posted a notice on the NextDoor forum urging residents to email a form letter to fellow councilmembers asking that the farmer’s market be kept downtown. A resident sent us a reader’s editorial and a letter to the full Council and City Manager complaining of bias.
Parent also sent a media advisory announcing a press conference to be held at 5 p.m., before tonight’s meeting, which he plans to hold with Brian Beevers, who currently operates the farmer’s market along with the La Mesa Village Association. The media notification states, “ Both support the current location and date of the Farmer’s Market.”
The LMVA has a proposal to continue its market in conjunction with Beevers. Beevers also has his own proposal to run the market on his own. The La Mesa Chamber withdrew its proposal and endorsed the fourth proposal, which is from Grossmont Center and would donate proceeds to local charities.
CalAware’s attorney, Francke, has advised ECM via email that it appears Councilman Parent “should recuse himself from voting in any future proceeding in which his favored contender is seeking a license or permit affecting land use…”
Use of city streets for the farmer’s market has required a permit.
Francke sent this article as an example: http://www.westerncity.com/article/when-elected-official-feels-passionately-about-issue-fair-process-requirements-adjudicative .
The article, from Western City, is titled “When An Elected Official Feels Passionately About An Issue: Fair Process Requirements in Adjudicative Decision making.”
The article states, “Sometimes local officials are asked to play more of a judge-like role (also referred to as an “adjudicative” or “quasi-judicial” role). This occurs when officials determine how already-adopted policies apply in a given situation. Examples include applications for permits…When agency officials act in an adjudicative capacity, people such as the permit applicant have certain rights to fair processes.3 These fair hearing requirements may not always rise to the level of constitutional protections related to due process,4 but violating them can nonetheless invalidate the decision.”
The article further elaborates:
“…decision-makers cannot be biased8 and courts will examine an agency’s procedures to ensure that the process has been fundamentally fair.
What kinds of issues can be a problem? Decision-makers cannot:
- Have a personal interest in the decision’s outcome;
- Be strongly biased against or in favor of one set of parties in the proceeding;
- Have undisclosed or unalterable notions relating to the facts relevant to the decision; or
- Be potentially unfairly influenced by staff who may play both an advocacy and advisory role before the agency.
There also can be issues related to the demeanor of decision-makers at the hearing.”
Elected officials generally take care to avoid even an appearance of bias that could force recusal or set up a legal challenge if they vote. For example, County Supervisor Dianne Jacob has long refused to take public positions on controversial projects such as proposed sand mines, wind farms, housing projects or other projects slated to come before her for a vote. At times this has angered constituents who urged her to take a stand, but she has explained that doing so could prevent her from voting on the item down the road.
However, not every elected official or candidate for public office is aware of the case law on this issue, which applies to adjudicative matters only, not legislative actions.
Francke clarified in a later email, received shortly after publication, that even if a competitive bid process for a permit were deemed political and not adjudicative, "politically speaking, the public has the right to demand he recuse himself because of bias" based on his actions.
A second attorney has also informed ECM today that case law has set precedents for officials to recuse themselves, or for decisions to be successfully challenged in courts, if an elected official has shown obvious bias in an adjudicative matter.
Should Parent recuse, it raises the potential for a different potential problem, should the Council deadlock 2-2 on which farmers market application to approve.