Lebanon Planning Board Rules of Procedures
The following is a section from the Lebanon Planning Board’s Rules of Procedures re: conflict of interest and prejudgment and a section on e-mail communications which was recently written by Attorney Bernie Waugh for the City of Lebanon. E-mail communication if not used carefully by Board members has the possibility of violating the Right to Know Law.
CONFLICT OF INTEREST or PREJUDGEMENT. In accordance with RSA 673:14, no member shall participate in deciding or shall sit upon the hearing of any question if that member has a direct personal or pecuniary interest in the outcome which differs from the interests of other citizens, or if that member would be disqualified for any cause to act as a juror upon the trial of the same matter in any action at law.
Reasons for disqualification include when a member:
A.Is related to the applicant or any abutter;
B. Has assisted or advised the applicant or any abutter; or,
C. Is biased or prejudiced in any manner or to any degree which would, in the eyes of a reasonable and prudent person, prevent the member from acting impartially with respect to the application before the Board.
Reasons for disqualification also includes prejudgment which occurs when a Member has directly or indirectly taken a position, formed a conclusion, or has prejudged, the application to be decided by the Board. Prejudgment includes, but is not limited to, a position taken either for or against an application expressed at a public meeting, by letter, by ex parte communication, or by comment made in some public forum. Prejudgment does not include questions or statements made by Board members in response to the details of the application expressed during the public hearing held on that application or during the Board’s deliberations.
When an uncertainty arises as to whether a member is disqualified in particular circumstances, the Board shall, at the request of that member or another Board member, vote on the question, but such vote shall be advisory and non-binding. Any person with a direct interest in the outcome may voice an objection to a Board members’s participation, setting forth specific reasons, and may also request such a vote, but such a request shall be non-binding. Any such request or objection shall be made either prior to or at the commencement of the public hearing, or at such later time as the facts claimed to warrant disqualification first become known. No such vote shall be taken if the member involved steps down voluntarily.
A Member who is disqualified shall remove himself/ herself from the Board, and shall sit with the public until such time as the Board has completed its consideration of the application at that meeting. The member may then return to the Board. If as a result of disqualification the Board loses its quorum, then there shall be an adjournment or recess of consideration of the matter until there is a quorum either at the same meeting or the next available meeting.
E-MAIL AND OTHER COMMUNICATIONS BETWEEN MEETINGS
7.1 Purpose. The aims of this Article are:
A. To ensure compliance with the letter and spirit of the Right-to-Know Law, RSA 91-A, and with the Due Process rights of parties before the Board;
B. To clarify Board members’ ability, between meetings, to research issues and prepare motions or other potential Board actions, thus promoting efficient use of meeting time, but only to the extent allowed by law; and
C. To clarify the role of electronic media such as E-mail in achieving these goals.
7.2 In this Article:
A. Communication means a transfer of information, objective or subjective, from one person to another. It includes face-to-face or phone conversations, letters, memos, E-mails, web sites, or any other medium, regardless of the location or ownership of any device or equipment used.
B. Distribution is a one-way communication between meetings involving more than one Board member where no between-meeting response (except acknowledgment of receipt) occurs or is expected.
C. Exchange is a communication between meetings, or series of communications, involving more than one Board member which includes a between-meeting response, or expectation of a response.
D. Ex Parte Communication is communication, other than at a legally-noticed meeting, between a Board member and a person with an interest in, or affected by, a pending or future case.
7.3 Activities Between Meetings Of Individual Members. Individual Board members may, between meetings, prepare drafts of motions or other potential Board actions. They may also research or investigate general or specific factual issues. However, if the research pertains to a case, the member shall, at the public hearing, report all findings to the Board, and parties to the case shall be given a meaningful opportunity to respond.
7.4 Distributions. A Distribution may be made to any number of Board members, so long as it does not become an Exchange. Whenever a member makes a Distribution concerning a pending or future case and it involves a quorum of the Board (counting all senders and recipients):
A. a copy shall be forwarded to the City Planner, who shall determine, under RSA 91-A or other applicable law, whether the Distribution is subject to public disclosure and shall place the copy in the appropriate file;
B. the member making the Distribution shall report on it, and its contents, at the public hearing on the case unless the information is exempt from disclosure under RSA 91-A; and,
C. parties to the case shall be given a meaningful opportunity to respond to the information in the Distribution.
7.5 Exchanges. Exchanges involving a quorum or more of the Board or of any Planning Board Committee are prohibited. Such Exchanges shall be considered deliberations and shall occur only at meetings noticed in accordance with RSA 91-A. An Exchange pertaining to any activity allowed under Subsection 7.3 is permitted if the number of Board or Committee members involved is less than a quorum; however:
A. each member involved shall be responsible for preventing the number of members involved from reaching a quorum;
B. information discussed in, or generated by, an Exchange between members shall not be subject to further Distribution; and
C. no Exchange shall include any vote or straw vote, or any Ex Parte Communication.
7.6 Ex Parte Communications. Board members shall not initiate Ex Parte Communications. If an Ex Parte Communication is initiated by another person, the Board member contacted shall:
A. refrain from discussing the substance or merits of a case;
B. inform the person, if necessary, that such a discussion could lead to disqualification;
C. refer the person to the Planning Office or to a Board meeting, as appropriate; and
D. report on the conversation to the Board at a public meeting.
7.7 Scheduling and Agenda. Notwithstanding Subsections 7.4, 7.5, and 7.6, nothing in this policy prevents any Distributions, Exchanges or Ex Parte Communications which pertain solely to:
A. scheduling of meetings or hearings;
B. the determination or ordering of agenda items or topics to be taken up at meetings or hearings; or
C. general procedural requirements pertaining to such scheduling and agenda matters.
7.8. Planning Board Committees. A Planning Board Committee shall be considered a public body, and all provisions of RSA 91-A and this Article, applicable to a quorum of the Board, shall also apply to a quorum of a committee.