(Don’t) Judge for Yourself: When Local Board Members Should Recuse Themselves
Under Pennsylvania law, a member of a tribunal who has an interest in the outcome of a matter before it must recuse or disqualify himself or herself because there is the potential for conflict or bias. A “tribunal” is any court or government unit (or any political subdivision thereof) that performs “quasi-judicial” functions and has the power to enter an order in a matter. Political subdivisions include counties, cities, boroughs, incorporated towns, townships, school districts, county institution districts, and zoning hearing boards.
Just recently, the Supreme Court of Pennsylvania has provided additional guidance as to when a zoning board member must recuse herself. In Pascal v. City of Pittsburgh Zoning Board of Adjustment, decided at the end of September, the Pennsylvania Supreme Court considered whether a member of a zoning board of adjustment (“ZBA”) deciding a zoning request should have recused herself when she also sat on the board of directors of the corporation making zoning application.
The Supreme Court reiterated the maxim that “no man can be a judge in his own case.” Our Supreme Court emphasized the principle that actual bias does not need to be shown in a case where a decision-maker rules on a matter in which he or she has a personal interest. It noted that even the probability of unfairness was something that the law seeks to avoid – in other words, not only must a member of the tribunal be unbiased, but he or she must avoid even the slightest appearance of bias.
With these tenets established, the Supreme Court concluded that the ZBA member’s recusal was required under the well-settled due process principles that disallow a person to be the judge of his or her own case or to try a matter in which he or she has an interest in the outcome.
Notably, nothing in Pascal limits its application to a zoning board of adjustment or zoning hearing board. Instead, the language refers to any “decision-maker” or “any tribunal.”
Lower court cases had gone even further than Pascal, finding that a member does not even have to have a personal interest in the outcome of the matter before the tribunal, such as when the member participates as an advocate or witness in the matter or has publicly expressed a predisposition as to its outcome. For example:
- A council member who publicly expressed a predisposition against a project through letters on council letterhead was required to recuse.
- A board member was disqualified after taking an advocacy role before the board as a private citizen in opposition to a subdivision plan.
- Recusal was required where a majority of board members, before appointment, signed and filed petitions in opposition to the zoning ordinance at issue.
The rule of recusal seems to apply to all local boards and councils to the extent that such “tribunal” makes the final decision in an approval process. For example, where a planning commission gives approval but the authorization of another government unit, such as a zoning hearing board, is still required before a project can proceed, the decision by the planning commission would not be considered an adjudication, and its act would not be deemed a quasi-judicial function. On the other hand, when a decision of a planning commission is the final action on an application or permit, that decision would be considered an agency adjudication, and the planning commission would then function as a tribunal, meaning that recusal could be demanded and enforced.
As individuals who sit on municipal and county boards are often those most engaged in their communities, it is not surprising that these deep local ties might result in conflicts of interest when making decisions on local matters. The direction recently provided by the Supreme Court in Pascal is one of many that aids local officials who desire to serve their communities with fairness and integrity, and sometimes, the guidance provided requires an individual simply to step aside.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.