Is it unethical for Mike Byrd to take positions on issues?

June 2, 2014
Kevin Rice

Kevin Rice

OPINION By KEVIN RICE

Caren Ray has indicated belief that she cannot openly take positions on certain issues which may in the future come before the San Luis Obispo Board of Supervisors. Simultaneously, she has criticized Mike Byrd for openly doing so.

I will show below that it is unethical for a candidate to stay silent on campaign issues.

The California Supreme Court considered in City of Fairfield v. Superior Court, 14 Cal.3d 768 whether two elected councilmen should be disqualified from voting on a land use permit after they openly opposed a project prior to the permit hearing. The Supreme Court ruling was “In Bank” (unanimous):

“[A] councilman has a right to state his views on matters of community policy, and his vote may not be impeached because he does not.” (Id., at p. 772.)

“A councilman has not only a right but an obligation to discuss issues of vital concern with his constituents and to state his views on matters of public importance.” (Id., at p. 780.)

The Supreme Court cited Wollen v. Fort Lee (1958) 27 N.J. 408 [142 A.2d 881]. That court stated: “[I]t would be contrary to the basic principles of a free society to disqualify from service in the popular assembly those who had made pre-election commitments of policy on issues involved in the performance of their sworn … duties. Such is not the bias or prejudice upon which the law looks askance. … The contrary rule of action would frustrate freedom of expression for the enlightenment of the electorate that is of the very essence of our democratic society.”
A more recent published Opinion of the California Attorney General (No. 94-1003) also directly answers the question:

“Is a city council member who signed a petition opposing a land use project disqualified from participating in the council proceeding during which the application for a conditional use permit for the project is considered?”

Conclusion:

“A city council member who signed a petition opposing a land use project is not disqualified from participating in the council proceeding…”

The Attorney General’s analysis includes numerous citations:

“We conclude that the written or verbal expression of preliminary opinion alone does not inexorably preclude a council member from duly considering and relying upon the evidence submitted and arguments made by the parties at the public hearing, or impair the proponent’s opportunity to be heard.”

“In Moskow v. Boston Redevelopment Authority (1965) 349 Mass. 553 [210 N.E.2d 699], reviewing a city council’s determination to exclude certain property from a redevelopment plan, the Massachusetts Supreme Judicial Court ruled that: `No member of the city council was disqualified because he had expressed an opinion or taken sides on the merits of the Plan including Parcel 8 whether during an election campaign or at any other time. . . . The issue was wholly political in character. . . . It was likewise one of great interest in the community, and the voters were entitled to know the views of the candidates, who had a right, and perhaps a duty, to state their positions.’ (210 N.E.2d at p. 707.)” (Id., at pp. 780-781.)

‘”Nor is a decision-maker disqualified simply because he has taken a position, even in public, on a policy issue related to the dispute, in the absence of a showing that he is not “capable of judging a particular controversy fairly on the basis of its own circumstances.” United States v. Morgan, 313 U.S. 409, 421 (1941).'”

“Accordingly, bias and prejudice may not be implied but must be established by clear averments; a party’s unilateral perception of an appearance of bias is not grounds for disqualification. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 792.)”

Conclusion:

Mike Byrd, and Caren Ray, and Lynn Compton have not only a right, but an obligation, to discuss issues and make pre-election commitments for the enlightenment of the voters of the 4th Supervisor District.


11 Comments

  1. Takara says:

    Mr. Rice says he “will show below that it is unethical for a candidate to stay silent on campaign issues”.

    He goes on to quote sections from various case law which basically say it is permissible, as an elected official to speak up on issues that you have had strong convictions about prior to being elected, or prior to the discussion of the issue.

    The problem with his whole fallacious argument is that just because it is permissible to speak on these issues, it is surely not unethical not to do so. And absolutely no proof has been given on this point to the contrary.

    There is a serious lack of critical thinking on display by this author, and Cal Coast News for publishing this piece.

    Definition: Unethical – lacking moral principles; unwilling to adhere to proper rules of conduct.

    Like or Dislike: Thumb up 20 Thumb down 4

  2. fishing village says:

    WHAT ARE YOU DOING SENDING OUT PHONE MESSAGES TO SUPPORT THE POSITIONS OF CARLA AND NANCY, THEN SAYING YOUR INTEGRETY.COM DOES NOT HAVE THE SUPPORT FROM THEM? YOU WERE HEAVILY INTO THE RECALL ATTEMPT THAT FAILED MISERABLY IN MORRO BAY AND NOW YOU CONTINUE TO STICK YOUR NOSE WHERE IT ISN’T NEEDED. SURELY THERE IS A COMMUNITY THAT WANTS YOUR OPINION….SOMEWHERE ELSE!!

    Like or Dislike: Thumb up 16 Thumb down 6

  3. Slowerfaster says:

    This is just more gadfly poppycock from our resident scold and imaginary political philosophiser and constitutional scholar.

    Any candidate has the inherent right to either state their opinion on items of public interest, or to withhold comment and/or not be declarative until listening to and considering all of the information and evidence in the proper forum.

    It is not ‘black and white’ …’right or wrong’ as Rice’s “conclusions” allude to, and voters can accept or reject either method.

    Like or Dislike: Thumb up 16 Thumb down 2

  4. jhagstro says:

    It is completely ludicrous to me how anyone, especially a currently elected public official, could think that they shouldn’t state their position on an issue affecting their constituents. How else are we supposed to know who will best represent our views if we do not know what their views are? That is one of the reasons that I made the decision to vote for Mike – he is up front with his positions on the issues that are important to me. The only reason for a candidate to not express his/her opinion is if they are afraid to alienate anyone who disagrees with them – if they do not have the strength of their own convictions. Without open and honest expression of those positions, our elections become nothing more than a popularity contest. That is not the quality of representation that I want!!

    Like or Dislike: Thumb up 20 Thumb down 13

  5. Julie says:

    With such important projects facing the 4th District the voters have the right to know who will represent them and how.

    Caren Ray has said “County Counsel” has advised her not to take a position on an item she may not be in office to hear. P66 will not go to the Planning commission until at least November.

    Ray should have done her own homework (she would have found what Kevin points out above). This County counsel has made many mistakes and this bad advice and Ray’s willingness to take it may have cost Ray the race.

    Hot debate. What do you think? Thumb up 27 Thumb down 19

    • Bserious says:

      Oh sure. Ignore the expert advice of the lawyer you hired to protect the County’s legal interests! Even better, take the legal advice of a firefighter that is the opposite of your County Counsel.

      Hot debate. What do you think? Thumb up 19 Thumb down 21

      • nurse1 says:

        Being new to this county and its politics coupled with the HATEFUL remarks to Mr. Rice, that I do not always agree with, I find it commendable that someone is willing to use their real name. I can see why (including myself) are more apt to hide behind a login title. I recently share my views on the current mayor of Morro Bay with some fellow citizens face to face at the farmers market, and thought I was going to be lynched! Thank god they did not have my name.

        Like or Dislike: Thumb up 17 Thumb down 16

      • nurse1 says:

        Seems as though the “firefighter” has much more wisdom and information then any of the politicians, and or county council, in the case of the goings on in the county of SLO. And I might add coupled with the comments of Ms.Tacker. I am grateful for people like this that keep the status quo on their toes. Otherwise we would have to trust the corrupt politicians words,who are sitting on their thrones laughing at all of us that vote.

        Like or Dislike: Thumb up 15 Thumb down 14

  6. bobfromsanluis says:

    Kevin: Why don’t you just plain ‘ole come out and state your opinion that Lynn Compton is who you want to see elected as 4th District Supervisor and be done with it. We all know that you have a very right wing view of politics, even if you attempt to couch your political views in Libertarian or even Tea Party talking points. You are not as impartial as you may think you are being; I have never attempted to hide my political views, so your attempting to paint yourself as a neutral observer or a somehow “removed” from the conversation without any skin in the game is disingenuous at best.

    Is it difficult to have libertarian views, recite Tea Party platitudes while being a public safety employee getting paid by a government agency and belonging to a union ?

    Hot debate. What do you think? Thumb up 37 Thumb down 20

  7. MaryMalone says:

    Great op-ed, Kevin. It is also a very soundly constructed argument.

    Clearly, Caren Ray is trying to avoid having to state publicly her opinions on some pretty hot-button issues.

    If the only way she believes she can be elected is to keep her constituency in the dark regarding her stance on hot-button issues, then she really isn’t worthy of being elected.

    Hot debate. What do you think? Thumb up 32 Thumb down 31

  8. analyticone says:

    Thank you, Kevin for providing the documentation that supports the people’s right to hear from their elected or soon-to-be elected representatives. Caren Ray conveniently hides behind sweeping authoritative statements as to why she can’t state her views, but has never provided any substantive evidence for her position.

    Hot debate. What do you think? Thumb up 33 Thumb down 24

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