RICHARDS, WATSON & GERSHON MEMORANDUM
TO: Candidates for the Rancho Palos Verdes Council
FROM: Carol W. Lynch, City Attorney
DATE: August 25, 1999
SUBJECT: Campaign Statements By Candidates For the City Council Concerning Particular Projects Within the City
Earlier this week, Mr. Evans received an inquiry from Mr. Stern about the ability of candidates for the City Council to express their positions about particular projects. This memorandum briefly summarizes the relevant legal principles and has been prepared so that all of the Council candidates will receive the same information about this issue.
DISCUSSION
The issue of whether campaign statements demonstrate bias which would preclude a person from voting on a particular issue essentially relates to the due process rights that are afforded to applicants and other interested parties by the United States and California Constitutions.
Initially, it must be noted that there is an important distinction between legislative acts, which typically are general policy matters, and quasi-judicial acts that affect the property rights of particular persons. Generally, a lesser degree of scrutiny will be applied by courts to statements by elected officials about general policy matters, which affect a variety of properties or projects, than to statements about applications for particular projects, which are to be constructed on solely on privately owned property.
The seminal case regarding whether pre-election campaign statements disqualify a council member from voting on a project is City of Fairfield v. Superior Court, 14 C.3d 768 (1975). In Fairfield, the California Supreme Court held that a council candidate is not precluded from voting on a project when the candidate makes statements in opposition to the project prior to the election, and that such pre-election statements do not constitute bias or prejudice which would require disqualification of the council member.
In that case, two successful council candidates made statements during a campaign opposing a proposed development. fact, one of the candidates-even appeared before the Planning Commission and testified against the project. When the project was before the City Council, the developer asserted that the two new council members could not vote on the project on the grounds that their pre-election statements demonstrated that they were biased. The two council members participated in the decision; the project was denied, and the developer sued the City. On appeal, the Supreme Court rejected the developer's contention that the two council members should not have voted on the project. The Court stated:
"A councilman has not only a right but an obligation to discuss issues of vital concern with his constituents and to state his views on matters of public importance. His role in the community is depicted in Todd v. City of Visalia (1967) 254 Cal.App.2d 679 [62 Cal.Rptr. 485] . Rejecting a contention that councilmen who had acquired information outside the hearing room concerning a proposed assessment district were disqualified from voting at a hearing to determine the validity of that district, the court observed that: 'A city councilman is elected usually because of his acquaintanceship and popularity. He may not be instructed on many of the technical matters as to which he is called upon to pass judgment. He is frequently an extrovert, who circulates widely in the community and talks with businessmen and voters about all sorts of questions that may come before the council. He is a legislator, an administrator, and at times a quasi-judicial officer. In the present instance, it would be strange if the members of the council living and working in Visalia did not have considerable cognizance of what was going on in the city, of the efforts of some people to form the present assessment district and of the municipal needs in this respect, fanciful or actual.' (254 Cal.App.2d at p. 691.)1
"Many of the alleged statements on these community matters that plaintiffs seek to adduce were made during the election campaign of Campos and Jenkins. Campaign statements, however, do not disqualify the candidate from voting on matters which come before him after his election. In Wollen v. Fort Lee, (1958) 27 N.J. 408 [142 A.2d 881], the court stated: '[I]t would be contrary to the basic principles of a free society to disqualify from service in the popular assembly those who had made pre-election commitments of policy on issues involved in the performance of their sworn ...duties. Such is not the bias or prejudice upon which the law looks askance.... The contrary rule of action would frustrate freedom of expression for the enlightenment of the electorate that is of the very essence of our democratic society.' (142 A.2d at p. 888; see City of Farmer's Branch v. Hawnco., Inc. (Tex. Civ.App. 1968) 435 S.W.2d 288, 292; Kramer v. Ed. of Adjust., Sea Girt (1965) 45 N.J. 268 [212 A.2d 153, 160-161]; Binford v. Western v. Western Electric Company (1963) 219 Ga. 404 [133 S.E.2d 361, 364]; cf. Montana Power Co. v. Public Service Commission (D.Mont. 1935) 12 F.Supp.946.)"
"In Moskow v. Boston Redevelopment Authority (1965) 349 Mass. 553 [210 N.E.2d 699], reviewing a city council's determination to exclude certain property from a redevelopment plan, a Massachusetts Supreme Judicial Court ruled that: 'No member of the city council was disqualified because he had expressed an opinion or taken sides on the merits of the Plan including Parcel 8 whether during an election campaign or at any other time....The issue was wholly political in character....It was likewise one of great interest in the community, and the voters were entitled to know the views of the candidates, who had a right, and perhaps a duty, to state their positions.' (210 N.E.2d at p. 707)
(Id. at 780-781, emphasis added.)
In a more recent case, Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152 (1996), the Court of Appeal distinguished Fairfield from the facts in Clark and held that a council member was disqualified from voting on a project, not because of pre-election campaign statements, but because of the proximity of the project to the council member's home. In other words, the bias August 25, 1999 that led to his disqualification arose from the effect of the project on his own property, and not from statements about general City policies concerning height limits of structures.
CONCLUSION AND OPTIONS
The Court's opinion in Fairfield supports the position that all council candidates, including candidates who presently are members of the City Council or Planning Commission, should be able to express their views concerning pending projects or about projects which may be submitted to the City. Of course, the existence of the Fairfield opinion will not-prevent an unhappy developer or constituent from raising the issue of bias either in court or at the public hearings before the City Council or the Planning Commission. Thus, each council candidate will have to evaluate whether he or she believes that taking a position concerning a particular project is worth the risk of being challenged in court on the grounds of bias. However, given the favorable opinion in Fairfield, such a challenge probably would fail.
One method of refuting a bias claim would be to qualify any statements made about a project. For example, after generally stating a position in favor of or in opposition to a particular project, the candidate then could add that he or she cannot make a definitive determination about a project because the public hearing has not yet occurred and all of the evidence has not been presented. By so doing, the candidate could discuss his or her position without stating that he or she had reached a decision. It is the prejudgment of the application which someone could use to support a claim of bias or denial of due process;
To summarize, following are the primary options which are available to each council candidate:
1. Not to express an opinion about any project or potential project in the City and thereby eliminate any potential claim of bias;
2. Express a qualified opinion and state that the candidate will not be making a final decision about any project until all of the evidence has been presented and the public hearing is closed;
3. Express an opinion only about general policy or legislative matters that could affect projects in the City; or
4. Express a definitive and final opinion about the merits of particular projects.
If you have any questions about any of the advice stated in this memorandum, please do not hesitate to contact me.
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