PROCEDURAL
CONSIDERATIONS IN
ADMINISTRATIVE
HEARINGS
John A. Young
Hazelwood & Weber LLC
200 N. Third Street
St. Charles, MO 63301
636-947-4700
www.hazelwoodweber.com
Administrative Authority
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“When the legislative body of the city chooses… to delegate to itself
the discretionary power to enforce its regulation[s],… it acts
administratively in acting on applications…” State ex rel. Steak n’
Shake, Inc. v. City of Richmond Heights, 560 S.W.2d 373, 376 (Mo.
App. 1977).
Administrative Authority:
– An ordinance may not give an administrative body unbridled
discretion – there must be a definite standard or rule for guidance.
– A governmental body may not delegate their legislative discretion.
– The standards must be specific enough so that an administrative
body cannot arbitrarily grant permission to one person while
denying it to another similarly situated.
Missouri Administrative
Procedures Act (MAPA)

The MAPA applies not only to State created agencies, but also to local
governmental agencies because local agencies are created “by law,”
meaning “by constitutional provisions, statute, municipal charter
provision or ordinance.” Young v. City of St. Charles, 977 S.W.2d
503, 504 (Mo. banc 1998).
Contested Case

Contested Case
– A proceeding before an agency in which legal rights,
duties or privileges of specific parties are required by
law to be determined after hearing.
Contested Case
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

Contested cases provide the parties with an opportunity for a formal
hearing with the presentation of evidence, including sworn testimony
of witnesses and cross-examination of witnesses, and require written
findings of fact and conclusions of law.
The key to the classification of a case as contested or non-contested is
the requirement of a hearing.
The question is not whether a hearing was actually conducted, but
whether one was required by law.
– Statute, Ordinance or Constitution.
 E.g. Implication of procedural due process rights.
Contested Case
Hearing

The term “hearing,” as used in the MAPA means a proceeding at
which a “measure of procedural formality” is followed.
-Notice of the issues
-Adherence to evidentiary rules
-Oral evidence taken upon oath or
affirmation and the cross-examination
of witnesses
-Written decisions including findings
of fact and conclusions of law.
-Making of a record
Presentation of Evidence
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Judicial review is limited to determining whether the decision is
supported by competent and substantial evidence upon the whole
record, whether it was arbitrary and capricious or unreasonable, and
whether the administrative agency abused its discretion.
The findings and decisions are to be based on evidence presented at the
hearing. Steak n’ Shake, Inc., 560 S.W.2d at 378.
Records and documents that “are to be considered in the case shall be
offered in evidence so as to become a part of the record….”
§ 536.070(5), RSMo.
“Any evidence received without objections which has probative value
shall be considered by the agency along with the other evidence in the
case.” § 536.070(8), RSMo.
Presentation of Evidence

Hearsay evidence admitted without objection may be utilized as
substantial and competent evidence to support the finding of an
agency. The Housing Authority of the City of St. Charles v. Board of
Adjustment of the City of St. Charles, 941 S.W.2d 725, (Mo. App. E.D.
1997).

Agency records may be admitted by reference. § 536.070(5), RSMo.

A board may utilize its personal observations in reaching the decision
provided the facts which are known by the Board and upon which it
bases its decision are disclosed on the record. State ex rel. C.C.G.
Management Corp., v. City of Overland, 624 S.W.2d 50, 55 (Mo. App.
E.D. 1981)
Findings of Fact and
Conclusions of Law

Findings of Fact and Conclusions of Law
– The decision, order and findings of fact and conclusions of law
shall in every case be included in the record for judicial review.
– This requirement cannot be waived.
– Without findings of fact and conclusions of law, the court has no
basis for reviewing the agency’s decision on the record.
– Must reveal the basis of the decision of the administrative agency.
Contested Case
Bias

“The procedural due process requirement of fair trials by fair tribunals
applies to an administrative agency acting in an adjudicative capacity.”
State ex rel. AG Processing, Inc. v. Thompson, 100 S.W.3d 915, 919
(Mo. App. W.D. 2003).

“Officials occupying quasi-judicial positions are held to the same high
standard as apply to judicial officers in that they must be free of any
interest in the matter to be considered by them.” Id. at 919-20.

“A presumption exists that administrative decision-makers act honestly
and impartially, and a party challenging the partiality of the decisionmaker has the burden to overcome that presumption.” Id.
Contested Case
Bias

“[A]ny administrative decision[-]maker who has made an unalterable
pre-judgment of operative adjudicative facts is considered biased.”
Fitzgerald v. City of Maryland Heights, 796 S.W.2d 52, 59 (Mo. App.
E.D. 1990).

The MAPA states that “reasonable opportunity shall be given for the
preparation and presentation of evidence bearing on any issue raised.”
This includes the issue of bias amongst the decision-makers.
Contested Case
Bias

Administrative decision makers are expected to have preconceived
notions concerning policy issues within the scope of their agency’s
expertise.

Familiarity with the adjudicative facts of a particular case, even to the
point of having reached a tentative conclusion prior of the hearing,
does not necessarily disqualify an administrative decisionmaker, in the
absence of a showing that the decisionmaker is not capable of judging
a particular controversy fairly on the basis of its own circumstances.
Contested Case
Bias

Financial Solutions and Assoc. v. Carnahan, 316 S.W.3d 518 (Mo.
App. 2010).
– Securities Division of the Office of the Secretary of State filed a petition
for an Order of Cease and Desist with the Missouri Commissioner of
Securities against company Under the Missouri Securities Act of 2003.
– Hearing held before the Commissioner.
– Biased alleged because Assistant Commissioner who worked under the
supervision of the Commissioner investigated the matter and filed the
petition.
 Specifically, Appellants contended that the Commissioner’s Cease
and Desist Order, which found the Appellants guilty of various
violations of the Missouri Securities Act, and a press release issued by
the Secretary of State describing the findings of the Cease and Desist
Order, constituted evidence of bias and prejudgment.
Contested Case
Bias

Financial Solutions and Assoc. v. Carnahan, 316 S.W.3d 518 (Mo.
App. 2010) Cont’d:
– Commissioner’s Bias:
 “[T]he commissioner was performing the duties prescribed by
Missouri statute by entering a Cease and Desist Order… and
the fact that the Commissioner issued a Cease and Desist Order
that was unfavorable to the Appellants does not show bias.
‘The mere fact that rulings are made against a party does not
show bias or prejudice on the part of the judge.’”
 “”[A]ny alleged bias or prejudice on the part of the judge, to be
disqualifying, must stem from an extrajudicial source.”
Contested Case
Bias

Financial Solutions and Assoc. v. Carnahan, 316 S.W.3d 518 (Mo.
App. 2010) Cont’d:
– Improper commingling of adjudicative and prosecutorial functions:

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Assistant Commissioner prosecuted while the Commissioner adjudicated.
No allegation that Commissioner acted in dual roles. Appellants contest
having an administrative body that contains investigatory departments as well
as adjudicative departments.
It is a difficult burden to contend that “the combination of investigative and
adjudicative functions necessarily creates an unconstitutional risk of bias in
administrative adjudications.” Withrow v. Larkin, 421 U.S. 35, 46-47 (1975).
The “fact that the Commission had entertained such views as the result of its
prior ex parte investigations did not necessarily mean the minds of its
members were irrevocably closed on the subject.” Id. at 48.
“Bias and prejudice must flow from an extra-judicial source to be
disqualifying.”
Contested Case
Bias

Davenport Pastures, LP v. Morris County Board of County
Commissioners, 238 P.3d 731 (Kan. 2010).
– Evidentiary damages hearing on County Commission’s decision to vacate
two roads.
– County Counselor acted as the board’s legal adviser and advocate during
and after the damages hearing process.
 Role as Boards legal advisor: drafted letters on behalf of the board;
advised the board on how to schedule and conduct the hearing;
recommended the appraiser that the board hired as its sole expert
witness; advised board how to proceed after damages hearing;
arguably drafted the Board’s written decision.
 Role as Board’s advocate: represented board at all court proceedings,
asserted attorney-client privilege, commented upon and argued
against evidence presented at the hearing; cross-examined witnesses;
and called witnesses to testify and directly examined them.
Contested Case
Bias

Davenport Pastures, LP v. Morris County Board of County
Commissioners, 238 P.3d 731 (Kan. 2010), Cont’d:
– “In short, the Board requested [the County Counselor] to
advocate/investigate on the amount of damages (if any), to advise
on legal procedures; and arguably to also help adjudicate,
particularly with the drafting of the order. In our view the [County
Counselor] was improperly asked to be, if not “A Man for All
Seasons,” then a man for too many seasons.”
Contested Case
Bias

State ex rel. Praxair, Inc. v. Missouri Public Service Commission,
2010 WL 3218887 (Mo. App. W.D. 2010).
–
Merger of public utility companies before the PSC for approval.
– Office of Public Counsel alleged bias of members of the PSC because members of
the PSC met with utility executives before the planned merger was publicly
announced and before a petition for the merger was submitted.
 On four or five occasions, two company executives met privately with
members of the PSC to discuss the proposed merger. No commitments were
made by the PSC.
– The commission is specifically authorized to function in a quasi-legislative as well
as a quasi-judicial capacity. § 386.210.1, RSMo.
– “The statutory scheme permits communications between commissioners and
members of the public, regarding industry matters that are not the subject of a
pending proceeding.” § 386.210.2, RSMo.
Contested Case
Bias

State ex rel. Praxair, Inc. v. Missouri Public Service Commission,
2010 WL 3218887 (Mo. App. W.D. 2010), Cont’d:
Commission found that Public Counsel “offer[ed] no legitimate factual basis from
evidence in the record to support a conclusion of actual bias or prejudgment on the
part of the Commissioners…. no reasonable person with total knowledge of the
content of these conversations, the context surrounding the legislatively sanctioned
conversations, and the timing of the conversations could conclude that the
Commissioners were biased or that there was even a remote appearance of
impropriety.”
– “The Commission’s factual findings are presumptively correct and if substantial
evidence supports either of two conflicting factual conclusions, this court ordinarily
is bound by the Commission’s findings. Assessment of witness credibility is for
the Commission…”
–
Contested Case
Bias

State ex rel. Praxair, Inc. v. Missouri Public Service Commission,
2010 WL 3218887 (Mo. App. W.D. 2010), Cont’d:
–
“The proceeding was conducted in accordance with statue and regulation, and, thus,
is presumed to have been appropriately and lawfully conducted until the contrary
has been demonstrated. ‘[A] party challenging the [impartiality] of the decisionmaker has the burden to overcome that presumption.’ We would be very reluctant,
in the absence of the violation of a specific statute or rule, to set aside an
administrative determination allowing a merger where the is no clear evidence that
the ex parte communications actually influenced the result of the proceedings.”
Contested Case
Bias

Continental Property Group, Inc. v. City of Minneapolis, 2011 WL
1642510 (Minn. App. 2011)
–
Property Owner requested conditional use permit (CUP) and variances to construct
a 21 story multiple family complex where 2 ½ stories is permitted height.
–
Property Owner asserted bias and violation of procedural due process in
proceedings before City Council.
Contested Case
Bias
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City Councilwoman and
member of Planning and
Zoning Committee.
Email communications to
Zoning and Planning
Committee and constituents
voicing opposition.
Telephone Call to Property
Owner advising that she intends
to turn down the project.
Contested Case
Bias
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Emails to constituents:
Contested Case
Bias
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Emails to constituents:
– “I am not supportive of a
high-rise…”
Contested Case
Bias

Emails to constituents:
– “I am not supportive of a
high-rise…”
– “I have already come out
against the height of the
project…”
Contested Case
Bias

Emails to constituents:
– “I am not supportive of a
high-rise…”
– “I have already come out
against the height of the
project…”
– “I will advocate
vociferously against the
appeal…”
Contested Case
Bias

Emails to constituents:
– “I am not supportive of a
high-rise…”
– “I have already come out
against the height of the
project…”
– “I will advocate
vociferously against the
appeal…”
– “I assure you I will do my
best to advocate against the
appeal in committee…”
Contested Case
Bias

Emails cont’d:
– “I serve on the Zoning and
Planning Committee which
is a quasi-judicial process.
If I got involved prior to the
public hearing I could face
giving up my right to vote
on the issue as the
information I would receive
would be outside the public
hearing process.”
Contested Case
Bias

Emails cont’d:
– “…please do not be
spreading the word that I
have made up my mind and
am working to oppose the
variance on this project. If
the developer hears this
they will rightfully question
that they didn’t get a fair
hearing with me and that I
made up my mind prior to
the public hearing.”
Contested Case
Bias

Court found:
City Council’s decision to deny the CUP’s and variances had some basis in the
record.
– Decision was nonetheless arbitrary and capricious because Councilmember
Goodwin took a position in opposition and exhibited a closed mind with regard to
[the] proposed project prior to hearing [the] appeal; adopted an advocacy role in
opposition to the proposed project well before she discharged her quasi-judicial
duties; and was clearly involved in an effort not only to assist to organize and
mobilize neighborhood opposition to the project, but also to sway the opinions of
her fellow council members.
– In light of the foregoing, the court found that the city council improperly relied on
factors it was not intended or permitted to consider in denying the applications.
– Decision would not necessarily have been arbitrary and capricious had the council
followed the correct standards and procedures in considering the application
“namely, had it not allowed a biased councilmember to participate in the decision.”
–
?QUESTIONS?
John A. Young
Hazelwood & Weber LLC
200 N. Third Street
St. Charles, MO 63301
636-947-4700
www.hazelwoodweber.com