Nolte says ask WWJD?

Former Ashland City Attorney Paul Nolte told planning commissioners to remember a simple catch phrase, "WWJD," if they need help remembering how to remain impartial on quasi-judicial matters.

But he didn't mean "what would Jesus do?" &

the most well-known incarnation of WWJD &

throughout his presentation at a Tuesday night study session concerning the rules for remaining unbiased on applications for new development. "What would a judge do?" Nolte asked frequently.

Nolte explained that planning commissioners, when they are deciding on the merits of a proposed project, are expected to adhere to the same kind of standards that a judge in a trial is held to.

"Parties before you have a right to an impartial decision-maker," he said.

Nolte, who was Ashland's city attorney from 1991 to 2004, concentrated on two areas that can blur the quasi-judicial role of a planning commissioner: ex parte contact and bias.

Ex parte contact, Latin for "one side only" is legally defined as information public officials receive outside of a formal hearing that is relevant to the decision before them.

"I urge planning commissioners to avoid ex parte contact," he said. "But you don't have to."

He explained that when the "land-use revolution started in Oregon in the early '70s, the courts forbade it." But since then, the rules have been eased because of the difficulties of avoiding conversation with people in the community.

Although he said, "prevention is the best medicine," he added that ex parte contact can be cleared by disclosing the information that is learned outside of the hearing.

"You must disclose it at the earliest possible opportunity," Nolte said. "I think of [disclosure] as who, what, where, when and why."

Ashland Planning Commissioners had many questions about what constitutes ex parte communication.

"Would you define communication?" Commissioner Pam Marsh asked of Nolte.

Nolte said it could be a talk with a neighbor, independent research done to understand the ramifications of new development or an article in a newspaper.

Commissioner Melanie Mindlin said, "We've had discussions about stuff written up in the newspaper."

Nolte said it should be disclosed because, "It could be erroneous. Parties have a right to rebut information you received that was not from the hearing."

Commissioner Olena Black asked if it was prudent to do research on how a proposal may look, or fit with an existing neighborhood.

"It's almost like we give up our right to be informed," she said. "Sometimes the record comes in and it's really thin."

Nolte said, because the onus is on the applicant to produce relevant information about a project, commissioners should ask them for more data rather than finding it themselves.

"A judge would never do factual research about a case," Nolte said. "When a record comes before a judge, he's not going to go out and do more research. You are placed in the role of deciding on the record."

Nolte also briefed commissioners on bias, of which there are two varieties: prejudgement bias, when a decision is made not on "evidence or an argument presented" and actual personal bias, which Nolte described as, "for instance, you don't like the developer."

Commissioners noted that the second type could happen to either the applicant or a detractor of the project.

"What if you just don't trust what they tell you," asked Commission Chairman John Stromberg.

Nolte said thinking someone is a liar is not a reasonable reason to deny their project. He added "in the best possible world you will have two sides to a story. A developer will say one thing and hopefully someone else" will present an opposing view.

Commissioner Michael Dawkins said sometimes the project opponents have been discriminated against by planning commissioners.

"Several opponents come before us a lot and they oppose a lot of projects," he said. "This rubs some commissioners the wrong way. What about this bias?"

Nolte responded, "If the bias is so strong as to take that attitude, then you really need to step down. It's a matter of your own integrity here. Can you be fair and impartial?"

Staff writer can be reached at 482-3456 x. 226 or .

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