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  Wednesday January 28th, 2015    

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Can commissioners share opinions before vote? (08/18/2013)
By Sarah Squires

Winona County Planning Commission member Don Evanson has faced accusations of wrongdoing after he spoke publicly in support of several zoning ordinance changes currently under review by the commission. The Planning Commission will recommend to the County Board whether or not the ordinance changes should be adopted. The board will then take a final vote on the land use regulations in the coming months.

Winona County Attorney Karin Sonneman responded to a request from Bob Peterson, chairman of the Planning Commission, for a legal position on the matter. Peterson was responding to requests from the public on the issue. While there is legal clarity on the question of whether Planning Commission or County Board members ought to share their positions on county legislation before casting their votes, the County Attorney cautioned that such behavior may appear to be improper.

Sonneman wrote that an important distinction to make is the dual role held by local public officials. When County Board members, for example, are to vote on an individual permit application based on existing county rules, they are acting in a “quasi-judicial” capacity. Like a judge, they are trusted to listen to all testimony and make an unbiased decision on the merits of the individual case. In these instances, public officials “should, among other things, not act as advocates for a certain position for a matter before the public body on which they serve,” wrote Sonneman, adding such behavior could create a legal liability for the public body because a judge could rule the actions as “biased predetermination.”

In the case of the zoning ordinance amendments, however, Sonneman wrote that county officials are exercising “quasi-legislative” authority. When legislating — or crafting laws that rule over all — “there appears to be no legal prohibition on individual members of a public body, such as the Planning Commission, to conduct themselves in a manner which might show favor or bias toward any position regarding the matter before them,” said Sonneman in her legal opinion. She cautioned, however, that such conduct, even in considering legislative issues, could be perceived as creating an unfair process, adding that “it behooves any public official to avoid the appearance of impropriety in their actions regarding matters under consideration before the public body in which they serve as a public official.”

Assistant County Attorney Nelson Rhodus summarized his office’s findings on the matter during the Planning Commission meeting Thursday. He cited a case in which a Minneapolis public official lobbied against a housing development prior to taking a “quasi-judicial” vote on a set of permits for the development, which ultimately opened the city up to legal liability. “I can’t say for sure that the same applies when deciding over quasi-legislative matters such as the ordinance,” he admitted.

Rhodus told the commission his office was unable to find any case law which indicated that those with legislative authority ought to hold their tongues when it comes to their personal feelings about issues before them. But, “It’s always better to err on the side of safety,” he said. The county attorney’s office could not guarantee, with 100 percent certainty, that a court would find no tainted bias or undue influence if such behavior by public officials were challenged. “I can’t say for sure,” reiterated Rhodus. “That’s kind of what the business of law is.” 


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