Ex Parte Communications in Port Orange

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Office of the City Attorney
1000 City Center Circle
Port Orange, FL 32129
Matthew J. Jones
Assistant City Attorney
Telephone: (386) 506-5525
Facsimile: (386) 506-5530

M E M O R A N D U M

TO:    Planning Commission
FROM:     Matthew J. Jones, Assistant City Attorney
DATE:     February 15, 2013
RE: Ex Parte Communications
Ex parte (from the Latin “on one side only”) communications take place when one party makes contact with any board member without the presence of the other party. Ex parte communications are presumed by law to be prejudicial to the party being left out. However, the state legislature has adopted a process by which a local government can remove this presumption of prejudice by adoption of a resolution or ordinance setting forth certain procedures to be followed (see Fla. Stat. 286.0115). The City of Port Orange took advantage of this provision by adopting Resolution 00-65 on December 12, 2000, which officially established procedures for dealing with ex parte communications.
The field of ex parte communications has varying requirements depending upon the type of hearing being conducted. A quasi-judicial proceeding is a proceeding in which action, other than legislative action, is taken by an administrative agency (i.e. Planning Commission). In a quasi-judicial proceeding the disclosure procedures are very strict and require the board member to disclose the subject of the communication and the identity of the person, group, or entity with whom the communication took place which is made part of the record prior to final action. The board member must also disclose any written communication regarding the action, any site visits conducted by the board member, or any expert advice provided to the board member.
On the other hand, in a quasi-judicial proceeding on local government land use matters, the disclosure rules are almost non-existent. In fact, a person may not be precluded from communicating directly with a board member by application of ex parte communication prohibitions. Disclosure of such communications by a board member body is not required, and such nondisclosure shall not be presumed prejudicial to the decision of the decisionmaking body. Although disclosure is not mandated, it should be noted that all decisions of the decisionmaking body in a quasi-judicial proceeding on local government land use matters must be supported by substantial, competent evidence in the record pertinent to the proceeding, irrespective of such communications. Thus, a board member cannot rely solely upon ex parte communications in order to form his or her decision.