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was not seeking a motion to formally change the existing process. City Manager Taylor expressed his appreciation for the discussion. Ex Parte Communication Mr. Klein distributed a handout on ex Forte contacts and reviewed the information contained in the document. He explained that exForte contacts were concerns in quasi-judicial actions, but not legislative actions, and while they were not specifically prohibited, they were discouraged because of the procedural issues that arose if they occurred. Mr. Poling asked at what point in the process exForte contacts became a concern. Mr. Klein replied that it was at the point an application was filed, although discussions with an applicant prior to submission of the application could create an appearance of bias. Mr. Poling gave the example of a developer who presented conceptual plans to elected officials and at a later date submitted an application for a zone change. Mr. Klein responded that those discussions would not need to be declared as ex Forte contacts and the elected officials' decision must be based only on information in the record, not any information obtained during those earlier discussions. Mr. Kelly asked if the starting point for exForte contacts was a matter of statute and if there were legal ramifications to a discussion held before an application was submitted that would be prohibited after submission. Mr. Klein said he would let the council know the source of the start point and regarding the pre-application discussion, bias would be difficult to sustain in an appeal but the discussion could provide the basis for a challenge and need to respond. Responding to questions from Mr. Pap~, Mr. Klein stated that if a decision was challenged on the basis of bias, the Land Use Board of Appeals (LUBA) could remand that decision. He said that an appeal to LUBA would have to be filed within 21 days of a decision. He indicated that staff would alert the council when a quasi-judicial action was coming before it. He said that recusation from a decision because of an ex Forte contact should occur only if the contact had in fact created bias or if the councilor believed that the contact could provide the basis for an appeal because of bias. Mr. Meisner asked how councilors should respond to requests for an individual meeting with an individual or organization that was engaged in litigation against the City, such as the telecommunications lawsuit. Mr. Klein advised that councilors and staff should decline to speak to any party that was suing the City. He said that although there was no legal prohibition against contact, anything said could potentially be used against the City. Mr. Meisner asked for written guidance to the council and staff regarding contact with litigants. Ms. Bettman asked if that guidance would apply equally to the lawsuit filed by the Chamber of Commerce and Lane County Home Builders Association over land use issues. Mr. Klein said that legal counsel requested to be present whenever there was a conversation about resolving litigation. He explained that the situation was somewhat different with land use issues or other State administrative proceedings because the judgment of LUBA or the State Hearings Official would be based on a record that had already been produced and conversations held after the contested decision was made would not be taken into account. MINUTES--Eugene City Council September 8, 2004 Page 8 Process Session