A board member’s telegraphing his or her decision before hearing the matter is often fatal to a municipal decision.
As a general rule of thumb, it is always wise for municipal boards and councils to remain impartial and unbiased. This is especially true when the state statute in question explicitly requires impartial decision making, such as when deciding on “laying out, altering, or discontinuing a highway…” See § 82.11(2)(a).
In the recent case of Thomas R. Jorns v. Town Board of Jacksonport, the Jorns owned a landlocked parcel. They had tried to purchase an easement, but were unable to do so. So they applied to the Town, as they are allowed to do under Chapter 82 of the statutes, to lay out a highway. At the hearing, two of the board members made comments that indicated they were not impartial and had already decided the matter prior to the hearing. The court overturned the Town Board decision and remanded for a new hearing.
Of course, on a three person board, if two of the board members must recuse themselves, that leaves only one person. Unfortunately, towns sometimes face this situation, and the statutes generally do not address this lack of quorum. Fortunately for the Jorns and the town, in this case the statute does address the lack of quorum, and provides for several alternatives. Towns are required to have a written policy which addresses such a circumstance, and if they don’t, the clerk may act. See 82.11(2)(b).