[MassHistPres] Apology

[Ralph Slate]

I would like to apologize for the last question I asked here. The 
question was "what law would stop a historical commission from meeting 
with applicants - in public - but without abutter notification and no 
public speakout so that the abutters could not muck up the deliberation".

I deliberately asked the question in a provocative way to try and elicit 
a stronger response from people. I did not ask this question because I 
wanted to take these actions (I am no longer a member of the Springfield 
Historical Commission) - I asked it because this is what is being done 
in Springfield, and I was trying to find out the legal way to stop this 
from happening.

In my research, I found some really interesting information. The crux of 
the matter is that Historical Commissions are considered to be 
quasi-judicial bodies (as opposed to legislative bodies). The action in 
question is referred to as "ex parte communication" (one-sided).

Here are a couple of articles on the subject:

http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1574&context=ealr

http://www.mass.gov/ago/bureaus/government/the-administrative-law-division/admin-adjuc-training-manual.pdf

Although I could find no specific Massachusetts law prohibiting this, 
general legal doctrine described in the first article describes this as 
a violation of the "Appearance of Fairness" doctrine when this 
communication occurs, and suggests that such communication should not 
happen.

That second link, from the Massachusetts Attorney General, is guidance 
(not law) written specifically for "administrative adjudicatory 
proceedings". I beleive this was originally written for groups like 
licensure boards, but it mentions that it was expanded "to make it a 
useful resource for many different types of presiding officers and board 
members who conduct administrative adjudicatory proceedings."

I do not know if Historical Commissions are considered to be 
"administrative adjudicatory" in Massachusetts. I did find that the City 
of Northampton specifically states "The Historical Commission is an 
advisory, regulatory and adjudicatory multiple-member body of the 
City.", but I do not know how this works legally - whether it depends on 
how a city/town wrote their legislation. However, I would assume that 
this Attorney General guidance is at the very least sound advice as to 
how a Historical Commission should proceed when it is tasked with 
approving/denying applications.

That document has a whole section on ex parte communication. It starts 
with this strong statement:

"Any communication to the board or a hearing officer relating to an 
on-going adjudicatory proceeding which comes from a party, including 
agency staff, without giving other parties the opportunity to be present 
is an ex parte communication. Such communications in the adjudicatory 
process are improper. All parties to a quasi-judicial matter are 
entitled to know all of the evidence the fact-finder will be using to 
decide the matter. They are entitled to be able to respond to the “I 
heard such and such,” or the “I don’t think they are telling the truth,” 
statements that might arise in an ex parte contact."

Ralph Slate
Springfield, MA


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