Appearance of Fairness Doctrine

Overview

The Appearance of Fairness Doctrine is a rule of law requiring government decision-makers to conduct non-court hearings and proceedings in a way that is fair and unbiased in both appearance and fact. It was developed by the courts as a method of insuring that due process protections, which normally apply in courtroom settings, extend to certain types of administrative decision-making hearings, such as rezones of specific property. The doctrine attempts to make sure that all parties to an argument receive equal treatment.

The doctrine requires that adjudicatory or quasi-judicial public hearings meet two requirements:

• They must be procedurally fair.
• They must appear to be conducted by impartial decision-makers.

In 1982, the state legislature codified the requirements for the doctrine in Ch. 42.36 RCW, and applied them only to quasi-judicial actions of local decision-making bodies when a hearing is required by statute or local ordinance.

The following matters have been determined to be quasi-judicial if a public hearing must be held:

• Conditional uses
• Variances
• Subdivisions
• Rezoning a specific site
• PUD approval
• Preliminary plat approval
• Discretionary zoning permits
• Appeal of a rezone application
• Other types of zoning changes that involve fact-finding and the application of general policy to a discrete situation

The following are not considered to be quasi-judicial actions, and the Appearance of Fairness Doctrine does not apply:

• Legislative or policy-making decisions, such as the adoption or amendment of comprehensive plans or zoning decisions of area-wide significance (RCW 42.36.010).

By following Appearance of Fairness requirements, local governments have a method for disqualifying decision-makers from quasi-judicial hearings who have prejudged the issues, who have a bias in favor of one side in the proceeding, who have a conflict of interest, or who cannot otherwise be impartial. "Ex parte" communications between a decision-maker and a proponent or opponent of the matter being decided are prohibited (RCW 42.36.060).

However, Appearance of Fairness concerns do not apply to statements made while campaigning for elective office, nor is the doctrine implicated by the receipt of campaign contributions (RCW 42.36.040, .050).

If a decision-maker's participation in a quasi-judicial decision violates the Appearance of Fairness Doctrine and that participation is challenged in a timely manner, a court can invalidate the decision. A new hearing and decision will then need to be made without the disqualified decision-maker.

Who is Required to Comply?

The Appearance of Fairness requirements apply to all local decision-making bodies including:

• Members of governing board or council
• Hearing examiners
• Planning commissions
• Boards of adjustment
• Civil service boards
• Any other body that determines the legal rights, duties or privileges of specific parties in a hearing or other contested case proceeding

Examples of Procedures

• Bainbridge Island Manual of City Governance Policies, Procedures and Guidelines (2022) – See Section 9.14
• Des Moines City Council Protocol Manual (2023) – See Section 6.02
• Poulsbo City Council Rules of Procedure (2024) – See Section 6.2
• Pullman Appearance of Fairness Questions (2023) – Set of questions asked of City Council for Quasi-Judicial Hearings
• San Juan County Code Title 2 – See Section 2.04.510

Recommended Resources

• Knowing the Territory: Legal Guidelines for Local Officials – This MRSC publication offers a section summarizing what local officials should know about the Appearance of Fairness Doctrine in hearings.