by James Jolly, attorney with Logan, Jolly & Smith
Public officials can be sued for a variety of reasons, ranging from land use decisions to denying or revoking a license. Increasingly, plaintiffs are alleging "ex parte communications" to support their lawsuits. They are claiming these communications show a lack of impartiality and fairness in the official's decision making process.
Historically, "ex parte communication" has described communication between legal counsel and the court when opposing counsel is not present. Individuals unhappy with a public official's action are now using the term to describe any communication that excludes any interested party, suggesting all such communications are improper.
Whether an "ex parte" communication with a public official is prohibited typically depends on whether the official is engaged in a legislative or quasi-judicial process.
South Carolina law (Section 1-23-360) states, members or employees of an agency "assigned to render a decision or to make findings of fact and conclusions of law in a contested case shall not communicate, directly or indirectly, in connection with any issue of fact, with any person or party, nor, in connection with any issue of law, with any party or its representative, except upon notice and opportunity for all parties to participate." (Emphasis added)
Likewise, Rule 6(b) of the Model Rules of Parliamentary Proceedings of South Carolina provides:
"When conducting a quasi-judicial hearing, county council takes on the role of an impartial trier of fact in a dispute involving the legal rights of one or more parties . . . . Further, council members must base their decisions on the evidence presented at the hearing and must not discuss the case beforehand or be influenced by the opinions of others who are not a part of the proceedings." (Emphasis added)
Both state law and the model rules address situations where the public official is acting in a quasi-judicial role. What if a public official is performing a legislative function?
The South Carolina Supreme Court has not stated directly and conclusively that "ex parte" communications with public officials are permissible in all matters involving legislative functions. However, most courts that have dealt with this issue have permitted it.
In 2002, a Tennessee court explained why "ex parte" communications are treated differently depending upon the official's role.
"In judicial and administrative proceedings, the litigants are entitled to the cold neutrality of an impartial tribunal. . . . The same cannot be said for the legislative arena. . . . Members of legislative bodies are not acting like judges when they consider a proposed change in an existing zoning ordinance. . . . They listen to their constituents; they test the wind; they try to please as many people as possible consistent with the constitution and good conscience. They are not to be condemned for doing so. That is their job."
Prohibiting "ex parte" communications in matters traditionally considered to be within the legislative function, such as rezoning, continues to be raised and tested in the courts. Some courts have prohibited "ex parte" contacts if a council is considering a site-specific rezoning. They ruled this situation is more quasi-judicial than legislative in nature.
Because of its potential for being the basis of a lawsuit, it is important for all public officials to be aware of whether "ex parte" contacts are allowed in specific situations before them.
James Jolly will conduct an afternoon session on public officials" liability during the Hometown Legislative Action Day on February 13.