Opinion Paper: Burns-Lemos Annexation, Appearance of Fairness, et al.

Many people have asked me why I had recused myself, and although I don’t necessarily feel I should have to say why and the law does not compel me to do so, I will say this. Does it really matter? I think what really matters is whether or not I felt there was a possibility of my participation “tainting” the process. The Appearance of Fairness doctrine is not for us (council), it is for you…It stems from a number of 1969 Washington State Supreme Court rulings in which the Court felt and I quote, “…hearings must not only be fair, they must also be free from even the appearance of unfairness.”

For those of you who asked me whether or not I believe Mrs. Aguilar should have recused herself, I have this to say…I believe Mrs. Aguilar should have recused herself from the Burns-Lemos property proceedings; however, this does not mean that I feel she knowingly did anything wrong, on the contrary, I believe that like many other citizens, she did not truly understand what the law actually says, and her statement regarding appearance of fairness proves my point.

From the Council Minutes dated March 28th, 2005:

“Aguilar commented she wanted the record to show that as far as a conflict of interest it hinges on if a person stands to gain or lose because of a governmental decision.”

Although Mrs. Aguilar is correct in her assumptions regarding the “gain or lose” portion of her statement she failed to add that the Appearance of Fairness doctrine also covers whether or not:

a decision maker has prejudged an issue, that is to say the individual has made it known whether publicly or privately that they have a bias in favor of one side in the proceeding.

The law also states that the decision maker should also recuse themselves from the proceedings if they have had:

Ex-parte communications between the decision-maker and a proponent or opponent of the matter being decided during the time that the matter is pending, unless the decision-maker:

  • Places on the record the substance of any spoken or written communications; and

  • Makes a public announcement of the content of the communication, and of a party’s right to rebut the substance of the communication.

It is important for the public to know that when an issue of this nature is being heard ANY communication you make with your elected officials must be made available to the public and that any opponents or proponents be given the opportunity to rebut that communication, otherwise the decision maker (Councilmember) can not legally or in my opinion morally judge the issue fairly.

With that in mind. I believe Mrs. Aguilar’s actions “tainted” the process, she took the objection personally. As Councilmembers we do not have the luxury to take things personally, we are elected to do a job, and that job is to make sure that the citizens of this great city are represented properly. I think Mrs. Aguilar should have recused herself for the betterment of the process, irregardless of whether or not she felt she had a conflict.

Councilman Jim Restucci
Sunnyside, Washington

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James A. Restucci is the author of this blog. This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 Internal License.

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