UPDATED August 3, 2022

Quasi-judicial evidentiary hearings are subject to formal procedural limits. Such hearings must adhere to the core elements of a fair trial and protect the due process rights of the parties. These issues heighten the concerns (and challenges) of holding a meeting of a quasi-judicial board remotely. As such, it is preferred to hold evidentiary hearings in person. However, since the spring of 2020 many meetings have been remote and communities have shown that quasi-judicial hearings can be managed remotely when necessary. In the early days of COVID shutdowns, the North Carolina General Assembly established rules for remote meetings during declared emergencies. But, what about when there is no declared emergency? This blog highlights the concerns and outlines some practical considerations.

Remote Meetings in General

Before we dig into the specifics of quasi-judicial evidentiary hearings, we need to be clear about requirements for public meetings, the authority for remote meetings, and distinctions between elected and appointed boards. Remote meetings are clearly authorized under G.S. 166A-19.24 while there is a declared emergency. I wrote about zoning hearings during an emergency here. When there is no declared emergency, however, we revert back to the basic authority for public meetings.

North Carolina law does define “official meetings” to include “the simultaneous communication by conference telephone or other electronic means of a majority of the members of a public body for the purpose of conducting hearings, participating in deliberations, or voting upon or otherwise transacting the public business.” G.S. 143-318.10. There is ambiguity in the statutes as to how we interpret this authority in relation to other statutes that seem to require physical presence (statutes on quorums and voting, for example).

My colleague Frayda Bluestein wrote on this: Public Meetings After the Lifting of the State-Level State of Emergency. And my colleague Kristina Wilson offered important insights for appointed boards like planning boards and boards of adjustment: Can Appointed Boards Continue to Meet Remotely? As they explain, for local elected boards, statutory quorum requirements may reasonably be interpreted to require in-person participation by board members (and thereby prevent remote meetings without a state of emergency). For appointed boards there is more flexibility. The implied prohibition from the quorum statutes (applicable to elected boards) does not apply to appointed boards. As such, there seems to be flexibility for appointed boards to meet remotely as long as that complies with applicable local rules.

Remote Meetings for Evidentiary Hearings

The preceding discussion applies to meetings of a public body generally. But what about a quasi-judicial evidentiary hearing specifically? Can a quasi-judicial board hold an entire evidentiary hearing remotely? G.S. 143-318.10, which defines “official meeting” to include electronic meetings, also defines “public body” to include a board authorized to exercise a quasi-judicial function. This indicates that remote meetings may be possible.

Given the legal requirements, quasi-judicial evidentiary hearings raise additional questions and concerns regarding remote participation. Quasi-judicial decisions, such as variances and special use permits, are like court trials: The board must hold an evidentiary hearing and apply legal standards. North Carolina courts have long demanded that the due process elements of a fair trial apply to a quasi-judicial decision. A party with legal standing in a quasi-judicial decision has a right to be heard, to present evidence, and to cross-examine opposing witnesses. Witnesses must be sworn in or affirmed. Board members must be impartial and must base their decision on evidence in the record. Humble Oil & Ref. Co. v. Bd. of Aldermen, 284 N.C. 458, 202 S.E.2d 129 (1974).

The ability of a board member to see and hear a witness directly, to ask them questions, to assess witness credibility and how much weight to give their testimony, to ask questions of staff—these are essential to the work of the board. The opportunity to deliberate candidly with fellow board members in real time is likewise important. Body language, facial expressions, and other nonverbal communication that goes along with live participation is important for members to see.

Traditionally this work has been accomplished through in-person hearings, but recent history during COVID-times suggests that boards can manage quasi-judicial evidentiary hearings remotely and adhere to due process requirements.

Prior research did not reveal a case addressing the topic of remote participation in quasi-judicial hearings directly, neither from North Carolina nor other state courts. A Maryland court addressed participation by phone by one member of a board of zoning appeals in Tuzeer v. Yim, LLC, 201 Md. App. 443, 29 A.3d 1019 (2011). In allowing that participation, though, the court focused on the state open meetings laws, not the due process rights of the parties in the appeal. As COVID-era disputes proceed through litigation—or as the General Assembly takes action to clarify the rules—we may get more answers. Thus, there is no clear prohibition on entirely remote quasi-judicial evidentiary hearings. Nor is there direct authorization for them.

Remote Participation by a Board Member 

What about remote participation by one board member? All of the same practical and legal considerations come into play: There is benefit for the board member to be in person in order to assess witness testimony, deliberate openly, and take in nonverbal communication. That said,  North Carolina courts have allowed that a board member may deliberate and vote on a case even if they were not present for the prior evidentiary hearing, as long as the member has access to the minutes of the hearing and the full record. Brannock v. Zoning Bd. of Adjustment, 260 N.C. 426, 132 S.E.2d 758 (1963); Dellinger v. Lincoln Cty., 248 N.C. App. 317, 789 S.E.2d 21 (2016). If that is permissible, then remote participation by one member may also be permissible, as synchronous virtual participation in the meeting gives the board member at least as good of an opportunity to evaluate the testimony and evidence as they would if they only reviewed the minutes and record.

Remote Participation by Parties v. Remote Participation by the Public

In quasi-judicial decisions, there are notable differences in how individuals may participate. In thinking about remote participation, the considerations are different for an individual with legal standing as a party as compared to an individual who is merely a member of the general public. I outline additional details for those distinctions in this blog on Standing and Quasi-judicial Hearings.

As set forth at G.S. 160D-406(d), “[t]he applicant, the local government, and any person who would have standing to appeal the decision under G.S. 160D-1402(c) shall have the right to participate as a party at the evidentiary hearing. Other witnesses may present competent, material,  and substantial evidence that is not repetitive as allowed by the board.” G.S. 160D-1402(c), in turn, identifies the following as having standing to appeal: an individual with a property interest in the subject property, an individual who will suffer special damages as a result of the decision, particular associations with a member with standing, and the local government.

If an individual is a party with legal standing, they have due process rights in the case. That individual has rights to present evidence, to review all evidence, to challenge the impartiality of board members, to cross-examine witnesses, and to rebut evidence from opposing parties. It can be practically difficult, though not impossible, to respect all due process rights through a remote meeting.

The general public, in contrast, does not have rights to participate in a hearing. Open meetings laws give an opportunity to observe, not a right to participate. Quasi-judicial boards can, and often do, allow members of the general public to provide factual testimony and evidence relating to quasi-judicial decisions, but that is at the discretion of the board or as specified in local policy.

Complicating this analysis is the fact that parties are not necessarily identified prior to a quasi-judicial hearing. In contrast to a court case or judicial appeal where the litigants are specifically named in advance, in a quasi-judicial case before a local board, a neighbor might not claim standing and participate until the first hearing. This fact makes it hard to properly address remote participation of the parties in advance.

Note that any witness—whether a party or a member of the general public—must be sworn in or affirmed in order to provide testimony and evidence in the evidentiary hearing.

Limited Flexibility for Rules of Evidence   

In quasi-judicial evidentiary hearings, the judicial rules of evidence apply—to an extent. North Carolina courts and state law give some flexibility. Evidence that would not be admissible under the strict rules of evidence may be admissible for a quasi-judicial evidentiary hearing if “the evidence was admitted without objection or (ii) the evidence appears to be sufficiently trustworthy and was admitted under such circumstances that it was reasonable for the decision-making board to rely upon it.” G.S. 160D-1402(j)(3).

North Carolina courts, for example, have allowed boards to admit and consider a special class of hearsay evidence without the author being present: technical reports from experts and analyses by government officials. For example, in Whiteco Outdoor Advert. v. Johnston Cty. Bd. of Adjustment, 132 N.C. App. 465, 513 S.E.2d 70 (1999), the court allowed the board to rely on analysis from an engineer with the NC Department of Transportation who was not present for the hearing when the opposing party did not timely object to the evidence. (however, lay opinions on technical matters are inadmissible even without objection. G.S. 160D-1402(j)(3))

Practical Considerations 

It is best to hold a quasi-judicial evidentiary hearing in person. But experience during COVID-times has shown that quasi-judicial evidentiary hearings can be conducted effectively in a remote format.

If a local government chooses to proceed with remote quasi-judicial evidentiary hearings, the local government should weigh these practical considerations.

• Local Rules. Ensure that the ordinance requirements, board rules of procedure, and local policies and practices allow remote meetings and align with the heightened need for procedural fairness in quasi-judicial evidentiary hearings.
• Use video conference. Video conference is closer to live engagement and is preferable to a phone conference call with audio only.
• Consider the case. If there are no contested facts and the evidence is stipulated, there is less of a necessity for members being able to personally interact with a witness. If the legal issues are clear and there is broad consensus among the board, the deliberation is simpler and it is easier to justify the adequacy of remote engagement. In contrast, if a case involves multiple witnesses, conflicting evidence, and close calls on the application of the standards, remote participation will be more challenging.
• Establish ground rules. Set a detailed agenda and outline procedures for how the meeting is organized to ensure due process rights are protected. What is the order of testimony? How is evidence entered into the record? How are witnesses sworn in? How is cross-examination handled?
• Get agreement from the parties. If remote participation is allowed, obtain written consent for the record from all parties that they agree to use of that process. If any of the parties objects, it may be prudent to honor that objection and to continue the hearing until you have a quorum present.