4.a 3 When Not to Engage with CitizensWhen Not to Engage with Citizens
magine that your city is facing a
difficult land use decision that has
split -the community.A developer
is building a large multi -family
building on prime lakeshore
property. Some citizens think a
new development will revitalize
- the area; others think it will ruin
the neighborhood.
Neighbors are calling and writing
city councilmembers.The developer
has offered to give the councilmember
from that district a personal tour of the
site to explain its benefits.
Should a single or small group of
councilmembers meet with the neigh-
bors? Go on the tour? Try to mediate
a settlement between the factions?
It may be tempting for a city coun-
cilmember to wade into a contentious
situation and try to resolve disputes or
learn more about a project. After all,
most council or commission mem-
bers are interested in the community
and want to make it better.They are
go-getters and problem -solvers who
want to roll up their sleeves and get
involved. City councilmembers want
to be responsive to the citizens that
elected them.
But sometimes, a city leader's job is
best served by knowing when or how
to disconnect from specific interactions
City decision -makers should avoid
direct individual contact with citizens
regarding matters pending before the
city. Instead, decision -makers should try
to make sure that all discussion happens
in public with all interested parties.
Having meetings that involve only
one side to a controversy (known as ex
parte contacts) may create an impression
that government is operating in secret
and not providing a fair process to all
parties—a result that is in direct con-
flict with the engaged and responsive
approach the city councilmember
may have intended.
By Paul Merunn
The importance of these consid-
erations is especially true for land use
regulations, which impinge upon one
of the public's most strongly held rights:
the right to use private property. Cities
that want to regulate land use must
develop regulations and then apply
them in a consistent and public manner.
When processing land use applica-
tions, cities often act in a quasi-judicial
capacity. The city's decision will directly
impact an applicant's property rights
and the due process rights of all parties
involved. just like a judge or jury
cannot accept evidence outside of the
courtroom, the city should not accept
evidence outside of public meetings.
Like a judge, city officials must avoid
any appearance (or reality) that they
have already made up their minds or
that they favor one side or another.
If citizens contact city officials
regarding a pending matter, the most
prudent and responsive course of
action is to encourage participation
in the public process so that everyone
involved can be informed and engaged
in the conversation at the same time.
A city's authority to make decisions rests
with the entire council, not any one
member. All decision -makers should
have access to the same information.
If a city councilmember wants to get
more deeply involved with a project
in his or her district, and the formal
hearing process is too cumbersome,
there may be some middle ground such
as informal town hall meetings—but
the idea should be one that the entire
council is informed about.
Many contacts between citizens
and decision -makers are subject to
the Open Meeting Law, which requires
that any situation be treated as a public
meeting of the council if a majority of
the city councilmembers is in atten-
dance. Even if the letter of the Open
Meeting Law does not apply, the spirit
.JUNE -,JULY 2009 MINNESOTA CITIES
of open meetings and due process still
applies. Government business should
be conducted openly so everyone can
know what information was presented
and have an opportunity to participate.
It may be difficult for council and
commissioner members to step back
from direct interactions with the com-
munity. However, the public system of
open meetings and equal participation
is set up to ensure due process and a fair
hearing for all parties. It preserves the
city's appearance of neutrality and pro-
priety, and can head off future conflicts
arising from a perception of unfairness.
While it may seem tempting to wade
into a situation and problem -solve,
doing so is likely to create more
problems than it solves.
Consider this: if an application is
denied, and the applicant discovers that
a city councilmember had extensive
private meetings with the opposition,
how will that look? Or the reverse:
what if a controversial application is
approved, and the councilmembers had
private meetings with the developer?
Even if the decision -maker acted with
the best of intentions, the appearance
of impropriety can create problems that
could have been avoided.
In order to create a consistent
approach, cities should consider adopt-
ing a formal policy regarding ex parte
contacts and how to handle them. The
key is to find a common understanding
of the appropriate individual role for
city councilmembers that will balance
responsiveness with considerations like
appropriate decision-making and the
Open Meeting Law. Having a policy
may not avoid all conflicts, but can help
to avoid accusations about inappropriate
roles or secret meetings. Ir
Paul Merwin is senior land use attorney
with the League of Minesota Cities. Phone:
(651) 281-1278. E-mail:pmenvin@)inc.org.