‘Prejudicial’ Bias

Training for: Legal Notes

Last month we wrote about “familial” bias, where the law presumes that any official who is closely related by blood or marriage to any party to a quasi-judicial proceeding is biased and is therefore disqualified from participating (see “‘Familial’ Bias,” Maine Townsman, Legal Notes, December 2015).

This month we write about “prejudicial” bias, where an official is disqualified not on the basis of a familial relationship but because of partiality or prejudgment so intense that it prevents the official from making a fair and impartial decision. Since, unlike familial bias, this is a matter of subjective judgment, it is not always easy to tell when this threshold has been crossed.

Perhaps the most obvious evidence of disqualifying bias are statements or actions clearly indicating that an official’s mind has already been made up (see, e.g., Pelkey v. City of Presque Isle, 577 A.2d 341 (Me. 1990), where a board member had been a “vocal opponent” of a project before being appointed). Even where no statements or actions clearly establish bias, however, an official who harbors a strong bias should, in all good conscience, disclose it and abstain. Where an official evidences a disqualifying bias but refuses to step aside, the board has authority to, and should, determine whether the official is in fact disqualified. (This is the board’s prerogative, as it is the board’s decision that is at risk if a member with a disqualifying bias participates.)

As we noted last month, it’s important to remember that bias is a legal problem only in quasi-judicial proceedings, such as license or permit applications, zoning appeals and personnel grievances, where due process requires officials to be fair and impartial. When performing other functions, such as legislative, administrative or budgetary, however, officials are perfectly free to act on their personal views and policy preferences.

For more on the problem of bias in quasi-judicial proceedings, see “Municipal Officers’ Quasi-Judicial Role,” Maine Townsman, Legal Notes, November 2004, and “Bias Not Allowed in Quasi-Judicial Role,” Maine Townsman, Legal Notes, April 2010. (By R.P.F.)

Last month we wrote about “familial” bias, where the law presumes that any official who is closely related by blood or marriage to any party to a quasi-judicial proceeding is biased and is therefore disqualified from participating (see “‘Familial’ Bias,” Maine Townsman, Legal Notes, December 2015).

This month we write about “prejudicial” bias, where an official is disqualified not on the basis of a familial relationship but because of partiality or prejudgment so intense that it prevents the official from making a fair and impartial decision. Since, unlike familial bias, this is a matter of subjective judgment, it is not always easy to tell when this threshold has been crossed.

Perhaps the most obvious evidence of disqualifying bias are statements or actions clearly indicating that an official’s mind has already been made up (see, e.g., Pelkey v. City of Presque Isle, 577 A.2d 341 (Me. 1990), where a board member had been a “vocal opponent” of a project before being appointed). Even where no statements or actions clearly establish bias, however, an official who harbors a strong bias should, in all good conscience, disclose it and abstain. Where an official evidences a disqualifying bias but refuses to step aside, the board has authority to, and should, determine whether the official is in fact disqualified. (This is the board’s prerogative, as it is the board’s decision that is at risk if a member with a disqualifying bias participates.)

As we noted last month, it’s important to remember that bias is a legal problem only in quasi-judicial proceedings, such as license or permit applications, zoning appeals and personnel grievances, where due process requires officials to be fair and impartial. When performing other functions, such as legislative, administrative or budgetary, however, officials are perfectly free to act on their personal views and policy preferences.

For more on the problem of bias in quasi-judicial proceedings, see “Municipal Officers’ Quasi-Judicial Role,” Maine Townsman, Legal Notes, November 2004, and “Bias Not Allowed in Quasi-Judicial Role,” Maine Townsman, Legal Notes, April 2010. (By R.P.F.)