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

June 2, 2014

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.