Posted By: Professor Patricia E. Salkin
I often field phone calls asking whether planning and zoning members can be removed from office by the local legislative body. Usually, the context involves board members who are allegedly “out of touch” with community desires and goals, or who “blatantly ignore” the urging of the appointing official or board. Most of the time, however, state statutes and local laws provide that board members can only be removed “for cause,” yet the laws rarely define this phrase. I typically try to engage in a conversation over what might be examples of “for cause.” For instance, whether the board member missed a lot of meetings; whether the board member attended a number of meeting visibly (and perhaps verbally) unprepared; whether the board member failed to follow the by-laws or rules of procedure; and whether the board member consistently demonstrates a refusal to follow the applicable law. Oftentimes, the answer to these questions is no, but the desire for removal seems more closely aligned with political motivations. In these cases, I typically advise that the public relations nightmare and accompanying lawsuit that will follow, may not be worth the removal action.
A recent federal district court case from Connecticut is instructive as to the legal analysis regarding the question of whether a federally protected property interest attaches to the position of planning and zoning board member.
Closson was appointed to the planning and zoning commission in 1997 and in 2005 he was elected by members of the commission to serve as chairman. He was reelected as chairman in 2006 and 2007, and in 2007 he was reappointed by the Board of Selectmen to the commission. In 2008, the Board sent Closson a letter informing him that the Board intended to remove Closson for cause citing various alleged failures to amend the plan of conservation and development. About 10 days later, the Board held a hearing on the removal, and Closson presented evidence in his defense and argued that his performance was satisfactory. Two weeks later, the Board voted to remove Closson, and a week later Closson filed a lawsuit in state court alleging a violation of his due process. The suit was removed to federal court.
On a motion to dismiss, the Town argued that Closson has no property interest in an voluntary, unpaid position as a commission member, and that he did receive due process regarding his removal. The District Court concluded that Closson did have a property interest in the appointed position, citing Connecticut state case law holding that an appointed fire marshall who received $70 per month and could only be removed for cause, had a continuing property interest in the appointment, the Court noted that under the Town Charter, Closson could only be removed for cause. The Court said, “it seems unlikely that Closson’s position as an unpaid, rather than minimally paid, appointee would change the Connecticut Supreme Court’s determination that such positions are property under Connecticut law.” The Court then considered whether Closson’s property interest rises to the level of a federally protected interest. While the Second Circuit has held that municipal board members do not enjoy federal constitutional protections of their positions, Closson argued that his position was appointed and not elected and therefore should be held to a different standard. The District Court held, however, concluded that there is no federal due process protection for an unpaid, volunteer position on a municipal board, whether elected or appointed.
Closson v. Board of Selectmen, Town of Winchester, 2009 WL 1538138 (D. Conn. 6/1/2009).