Impermissible Ex Parte Contacts
The trail court, after extensive hearings, found impermissible ex parte contacts by several Council members, some of which ex parte contacts were found by the trail judge to have demonstrated bias on the part of three Council members. (One finding of which was overturned by the Supreme Court as to one Council member).
While these extensive findings may be seen by some as not exactly covering the CRMC in glory, this deserves to be put in perspective. And just such perspective is found in the opinion of Justice Robinson, concurring in part and dissenting in part in the majority opinion.
Motivation and Intent
The thrust of Justice Robinson’s dissent was that he did not believe the CRMC Chairman should have been disqualified for bias and thus not permitted to consider this matter when it comes again before the CRMC pursuant to the Supreme Court’s remand.
In his dissent, Justice Robinson noted his understanding that the majority does not suggest the Chairman had ignoble motivation or was unethical but rather that at some point during the administrative proceeding the Chairman’s “thought processes became fixed to such an extent that he could no longer render an unbiased decision”.
Justice Robinson stated his view that the Chairman’s motivation “was simply to attempt to bring about a compromise solution with respect to a highly controversial application”, and that he “is a sincere and well-meaning public official”. Justice Robinson stated that based on his review of the record, the Chairman was “a conscientious public official” and he believed the Chairman could have properly considered the matter on remand.
Is Clairvoyance Required of Public Officials?
Justice Robinson made a further contribution to putting the Champlin’s Marina case in perspective when he noted that the case on which the trial court and the Supreme Court principally relied, Arnold v. Lebel, which articulated impermissible ex parte contacts, was decided after the events complained of in the Champlins Marina CRMC proceeding had occurred.
As Justice Robinson said:
“I take no issue with the more exigent considerations relative to ex parte contacts which are the result of the clarifications that were spelled out in the quite recent Arnold case. However, I think it is fundamentally unfair to apply those more exigent considerations to the pre-Arnold actions…We as a society expect a great deal of our public officials–including integrity and an acute sensitivity to ethical standards. However, I consider it unwarranted that such officials be clairvoyant as to not yet clearly promulgated expectations and norms.”
It is important to keep in perspective that there are in fact real people behind these decisions, and that events don’t occur in a vacuum–they occur in a context.