Champlin's Realty Associates v. Tikoian

989 A.2d 427, 2010 R.I. LEXIS 26, 2010 WL 565193

• Court: Supreme Court of Rhode Island
• Decided: February 18, 2010
• Docket: 2009-113-M.P., 2009-114-M.P., 2009-115-M.P.
• Status: Published

Opinions

OPINION

Justice FLAHERTY,

for the Court.

Block Island sits approximately twelve miles off the coast of Rhode Island. Sometimes referred to as the “Bermuda of the North,” it is a place of spectacular beauty. For generations, vacationers have flocked to the island during the short summer months to relax and enjoy the beaches and unspoiled vistas that nature has provided. Although the island is home to a small airport, the vast majority of visitors arrive by boat — including regular ferry service and private vessels. As is the case in many coastal communities, dock and mooring space can be at a premium.

Champlin’s Realty Associates (Champ-lin’s) operates a large marina on Block Island serving the needs of boaters and their craft. Concerned that it lacked the space to meet its business demands, Champlin’s filed an application to expand its operation to a substantial degree. The dispute over that proposed expansion, involving Champlin’s, the Coastal Resources Management Council (CRMC or council), the Town of New Shoreham¹ (town), and a number of intervening environmental groups, has finally wended its way to this Court. After carefully reviewing the record, we affirm the judgment of the Superi- or Court in part, reverse in part, and remand to the Superior Court with instructions that it remand this matter to the CRMC for further proceedings consistent with this opinion.

I

Factual Background

The CRMC is a state agency charged with protecting and regulating Rhode Island’s coastal resources. General Laws 1956 § 46 — 23—1(b)(1). Champlin’s Realty Associates, a Rhode Island corporation, filed an application with the CRMC to extend its existing marina 240 feet into the Great Salt Pond in the Town of New Shoreham to accommodate 140 additional boats. The proposed expansion included 2,990 feet of fixed pier and an additional 755 feet of floating docks. Under the proposal, the additional dockage would extend from the existing marina. The CRMC has the statutory authority to grant applications for such expansions of existing marinas. Section 46 — 23—6(4) (iii).

The Town of New Shoreham and inter-venors, the Block Island Land Trust, the Conservation Law Foundation, the Committee for the Great Salt Pond, and the Block Island Conservancy, opposed the application. When the CRMC receives a written objection to an application, the proceeding then becomes “contested” under the CRMC Management Procedures. The CRMC Management Procedures further provide that such contested cases be the subject of a public hearing before a “duly authorized and appointed Subcommittee.” ² Pursuant to his authority and in accordance with the relevant CRMC Management Procedures, the CRMC chairman Michael Tikoian appointed a subcommittee composed of five members: Jerry Sahagi-an, Thomas Ricci, Gerald P. Zarrella, and Paul E. Lemont as chairman.³

A

Subcommittee Hearings

The subcommittee held twenty-three public hearings over the course of two years from the time of Champlin’s application in 2003 until its final hearing on September 16, 2005. Extensive testimony and voluminous exhibits were received during the hearings, which reportedly were the longest and most exhaustive in CRMC history. The protracted hearings were rancorous and hotly disputed, not only among the parties but also among the subcommittee members. Subsequently, the four subcommittee members eligible to vote held a public workshop on October 24, 2005, to make findings of fact based on the evidence that had been presented to them, and to decide upon the recommendation that the subcommittee would make to the full CRMC. Subcommittee member Ricci commented during the public workshop that “clearly, this is an emotional, very difficult issue.” Subcommittee member Zarrella asserted at the public workshop: “I wish Mike Tikoian never put me on this committee, 23 meetings. * * * I don’t want to be here.” It was clear that tension arose in this case because of a conflict involving the implications of the marina expansion into the environmentally sensitive Great Salt Pond and the reality that dockage for watercraft is necessary for the general public to have access to the island.

As chairman of the subcommittee, Lem-ont addressed those present at the workshop and praised “both sides” for their “outstanding presentation.” He noted that after looking at the evidence, “there is no right and there is no wrong. * * * We’re looking at what is the best fitted decision that will impact all of the concerns raised.” Lemont expressed his conclusion that “[t]here has to be compromise,” and he supported neither the grant of the full application nor its outright denial. He was not alone; during the public workshop, all four members of the subcommittee voiced their opinions against the full requested expansion in the application, and three members, Chairman Lemont excluded, indicated that they would support a middle ground of an expansion of 170 feet.

Lemont stated at the public workshop that he would “not support anything more than 100 feet.” Sahagian expressed his wish that “the Town or the objectors did try to compromise a little bit more.” He went on to say that “what I am thinking right now is the Town at one point was at 100 feet, the applicant was at 240. [One-hundred and seventy feet] is in the middle.” Ricci commented, “I am not in favor of approving the application as it’s stated, for 240 feet. But, I also agree with my fellow subcommittee members, that I’m not in favor of denying the application outright.” He concluded that “[t]he applicant seeks 240 feet. They’re not going to get my recommendation for that or my vote for that.” Zarrella remarked that he “wished [the town] left that plan in there for 100 feet. It would have been a lot * * * easier if [they] left the plan there, but when they took it out at the public meeting, it’s been difficult for me.” He went on to say, “I can’t say no expansion. I can’t say it. The evidence is not there. The evidence is there for expansion. And, I can’t say 240 feet.” Further, Zarrella concluded that “I’m on the page that the Chairman is, of a compromise, but I think [that] I’m on a page that I’m a little bit more — I want to give a little bit more.” He lamented, “[the] Town’s hands are tied. The plans for 100 feet came in too late. As far as I was concerned, it should have come in earlier and I think you guys could have negotiated it out a long time ago.”

On January 10, 2006, the subcommittee made forty-seven findings of fact and issued a recommendation with the three votes in favor of a scaled-down modification of the proposal to 170 feet, rather than 240 feet, and one vote, Lemont, against.

B

Full Council Hearing

On February 28, 2006, the CRMC met in accordance with § 46-23-20.4(a) and the CRMC Management Procedures 5.3(2) and 5.3(3) to consider the record, evidence, and the subcommittee’s recommendation, as well as Champlin’s argument that the CRMC should adopt the recommendation. The CRMC is vested with the authority, in its discretion, to adopt, modify or reject the subcommittee recommendation, findings of fact, and conclusions of law if the rationale for doing so is provided in writing. Section 46-23-20.4(a). However, before it could take up the subcommittee recommendation, the CRMC first addressed Champlin’s previously filed motions to disqualify both Tikoian and member David Abedon from participating on the basis of public statements made by them after the vote of the subcommittee. After denying those motions, the CRMC proceeded to consider the subcommittee’s recommendation. The transcript reveals that the meeting, like the subcommittee proceedings that preceded it, was rife with tension.

Ultimately, five members of the full council, including Zarrella, voted to approve the subcommittee’s recommendation, while five members, including Lemont and Tikoian, voted against adoption. The resulting tie vote constituted a rejection of the recommendation. On July 5, 2006, the CRMC issued its written decision denying Champlin’s application. That same day, the five members who voted in favor of adopting the subcommittee’s recommendation released “Findings of Fact of the CRMC Members in Support of the Subcommittee Recommendation.”

II

Procedural Background

A

Administrative Appeal

In the midst of an atmosphere of hostility and tension, an appeal to the Superior Court ensued. The Superior Court has jurisdiction to hear appeals from administrative agencies such as the CRMC under the Rhode Island Administrative Procedures Act, G.L.1956 § 42-35-15. On March 23, 2006, Champlin’s filed a complaint in the Superior Court, in which it sought judicial review of the CRMC’s decision rejecting its application.⁴ In count 1 of its complaint, Champlin’s asserted that when the CRMC rejected the subcommittee recommendation and denied its application for expansion the agency (1) affected Champlin’s substantial rights in violation of constitutional or statutory procedure; (2) acted in excess of its statutory authority; (3) made use of unlawful procedure; (4) made a decision that was affected by other error of law, and was arbitrary, capricious, and characterized by abuse of discretion or clearly unwarranted exercise of discretion. In count 2, Champ-lin’s alleged that the refusal to disqualify Tikoian and Abedon violated Champlin’s right to procedural and substantive due process under the Constitution and laws of Rhode Island, the Constitution of the United States, and the CRMC management practices. In count 3, Champlin’s averred that Tikoian and Abedon should have recused themselves from considering Champlin’s application.

As a remedy, Champlin’s requested that the Superior Court rule that the vote taken with Tikoian’s and Abedon’s participation was void and that it remand the matter to the CRMC with directions to approve the subcommittee’s recommendation and order Tikoian and Abedon to cease participation in proceedings regarding Champlin’s application. Also, after extensive evidentiary hearings before the Superior Court, Champlin’s moved to disqualify Tikoian, Lemont, and members Gray, Sullivan, Gomez, and Dawson from further participation in the application should it be remanded to the CRMC. Champlin’s also moved to disqualify the votes of Tikoian, Lemont, Gray, and Sullivan from the CRMC vote taken on February 28, 2006.

Evidentiary Hearing

Pursuant to § 42 — 35—15(f), Champlin’s filed a motion requesting an evidentiary hearing before the trial justice to determine the existence of any procedural irregularities during the course of the CRMC proceedings.⁵ The CRMC objected to the motion for an evidentiary hearing arguing, inter alia, that the evidentiary hearing inevitably would intrude on the mental processes of the agency members as they formulated their opinions, recommendations, and evaluations in violation of quasi-judicial immunity. Even though she granted the motion for an evidentiary hearing, the trial justice assured the parties that “I don’t expect to have council members queried on their mental processes, their mental impressions. I will look at whether or not there were outside influences and improper influences that got in it, and those improper influences in and of themselves may or may not give rise to a court decision that they infected whatever determination that the council made.” As a result of the trial justice’s ruling, there followed sixteen hearings from March 19, 2007, until April 13, 2007.

Arnold Show-Cause Hearing

Also, it is significant that on January 2, 2008, after the hearings before her were concluded and after this Court issued Arnold v. Lebel, 941 A.2d 813 (R.I.2007), a case that proscribed ex parte contacts at the agency level, the trial justice issued a show-cause order that asked the parties to “show cause why Plaintiffs appeal should not be granted” based on the likelihood that Arnold “prohibited] the type of off the record communications” revealed by the evidentiary hearing. The show-cause hearing was held on January 23, 2008. At that hearing, the intervenors requested the opportunity to present evidence concerning the potential disqualification of subcommittee member Zarrella. The trial justice allowed the intervenors to proffer evidence supporting the disqualification of both Zarrella and Sahagian, as well as the propriety of reopening the evidentiary hearing. After considering the interve-nors’ arguments, the trial justice permitted a limited hearing as to Zarrella. That hearing was held on April 9, 2008.

Trial Court’s Findings

The trial justice made extensive factual findings and credibility determinations regarding the testimony of the witnesses during the sixteen evidentiary hearings, the show-cause hearing, and the hearing regarding Zarrella. The trial court concluded, based on the testimony, that the CRMC members “did not appreciate the quasi-judicial nature of their roles or the prohibition against ex parte communications.” Specifically, the trial justice found that Tikoian demonstrated his prejudgment of the application through numerous ex paHe contacts. Similarly, the trial justice found that Lemont also revealed his preconceived opinion and resultant bias at the evidentiary hearings because of his comments about his unwavering support for a “compromise plan.” The trial justice also found that Zarrella “failed to appreciate the quasi-judicial nature of his role,” based on statements he made to town officials and his remarks before the full council. As a result, the trial justice found that due to their bias, Lemont and Zarrella should have been disqualified from participating in the workshop and that the two of them, as well as Tikoian, should not have taken part in the CRMC decision.

The trial justice also found that Tikoian and Lemont wrongfully collaborated to produce a compromise plan after the subcommittee hearings were completed and that they “made no secret” about their opposition to the application as filed. She found that Lemont requested that Grover Fugate, executive director of the CRMC, create an alternate plan and that Fugate in turn had asked Dan Goulet, a staff engineer, to prepare this plan. The resultant plan, the “Goulet plan,” proposed a compromise of sorts that would extend the marina by 100 feet to the west. Goulet testified at the evidentiary hearing that he reviewed information that was not included in the record of the subcommittee proceedings when he created the alternate plan. As a result, the parties and intervenors were deprived of the opportunity to cross-examine Goulet about the alternate plan during the CRMC proceedings.

The trial justice further found that Tik-oian “lobbied” the members of the subcommittee to support the Goulet plan through informal meetings at a member’s workplace, at Tikoian’s home, and through telephone calls. Zarrella testified that he, Sa-hagian, and Ricci were angered by the telephone calls that they received the night before the workshop, which the trial justice inferred were from Tikoian or Lem-ont. Furthermore, Zarrella, Sahagian, and Ricci objected to the introduction of slides depicting the merits of the Goulet plan and were so incensed that they threatened to walk out of the workshop. As a result, Goulet did not present the slides. The trial justice, however, found that Lemont then took it upon himself “to advocate[ ] a compromise that was clearly based upon the Goulet plan” because Lem-ont also “suggested a 100-foot seawall [sic] plan and spoke of expansion to the west.” In finding that Lemont had prejudged the case and become an advocate in favor of what he termed “a compromise,” the trial justice cited Lemont’s testimony at the evidentiary hearing that “I came up with a compromise that I thought would solve the problem, and that’s what I wanted to do. I was chairman of the subcommittee. I had heard the testimony. I had heard the comments of the subcommittee. * * * And I came up with a conclusion that perhaps there might be a compromise that would settle this matter.”

The trial justice also made several credibility determinations with regard to testimony about certain comments Tikoian had made expressing his disappointment in the subcommittee recommendation that were published in the Providence Journal and the Block Island Times, as well as Tikoi-an’s interactions with Governor Carcieri and his staff. The trial justice found that Tikoian had “expressed how he intended to vote” at the CRMC meeting to reporter Peter Lord of the Providence Journal. Additionally, the trial justice found that Tikoian informed the Governor that he predicted a tie vote.

Based on these findings, the trial justice held that Champlin’s substantial rights had been prejudiced by consideration of the Goulet plan. Further, the court held that the CRMC decision was made upon unlawful procedure and in excess of the CRMC’s statutory authority. Additionally, the trial justice found that Champlin’s substantial and constitutional rights were violated when Tikoian and Lemont voted on the application, despite what she found to be their demonstrated bias against it.

iii

Remedy

Section 42-35-15(g) provides that the trial court “may affirm the decision of the [CRMC] or remand the case for further proceedings, or it may reverse or modify the decision * * The trial justice considered it within her discretion to decide on the appropriate remedy. She declined to remand the case to the CRMC for further proceedings because it was her understanding that the General Assembly would be required to pass legislation to implement our advisory opinion entitled In re Request for Advisory Opinion from the House of Representatives (Coastal Resources Management Council), 961 A.2d 930 (R.I.2008). We advised in that opinion that proposed legislation permitting lawmakers to sit as members of the CRMC, and allowing the General Assembly to make appointments to the agency, was unconstitutional in light of the separation-of-powers amendments to the Rhode Island Constitution. Id. at 940-41. The trial justice expressed concern that any progress on remand would be delayed by the appointment and confirmation process necessary to create a viable CRMC to hear the matter. Thus, the trial justice was “not inclined to remand this case” because it would result in further delay in Champ-lin’s efforts to obtain a decision on its application.

Rather, in reliance on Acierno v. Folsom, 337 A.2d 309, 317 (Del.1975), the trial justice simply subtracted the votes of the three disqualified members from the five to five tie vote rendered at the CRMC full council meeting.⁶ Accordingly, the tidal justice refigured the final vote to four to three in favor of adopting the subcommittee recommendation. She found that the twenty-three subcommittee hearings were unchallenged as to their fairness and that they were untainted by the participation of Zarrella and Lemont. Additionally, the trial justice found that the subcommittee’s recommendation was supported by the record amassed at the twenty-three subcommittee hearings. Ultimately, she “[upheld] the decision of the full Council members supporting the Subcommittee Recommendation” because it was “supported by the reliable, probative, and substantial evidence of record.”⁷

The CRMC, Tikoian, and intervenors, the Conservation Law Foundation, the Committee for Great Salt Pond, the Town of New Shoreham, the Block Island Land Trust, and the Block Island Conservancy (petitioners), sought review of the Superior Court’s decision by petition for certiorari on April 20, 2009, which we granted.⁸

Ill

Standard of Review

The Rhode Island Administrative Procedure Act (RIAPA) chapter 35 of title 42 governs the Superior Court’s review of an administrative appeal. Section 42-35-15(g) of the RIAPA sets forth that:

“The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

“(1) In violation of constitutional or statutory provisions;

“(2) In excess of the statutory authority of the agency;

“(3) Made upon unlawful procedure;

“(4) Affected by other error or law;

“(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

“(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

The RIAPA also limits this Court’s review of the Superior Court’s judgment in administrative proceedings. Section 42-35-16 (“Review by the [Supreme [C]ourt”). In conducting such a review, we are restricted to questions of law, which we review de novo. Rossi v. Employees’ Retirement System of Rhode Island, 895 A.2d 106, 110 (R.I.2006) (citing Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 805 (R.I. 2000)). The factual findings of the administrative agency are entitled to great deference. Id. (citing In re Advisory Opinion to the Governor, 732 A.2d 55, 60 (R.I. 1999)). However, when the review of the trial court’s decision is conducted under a writ of certiorari, as it is here, “this [C]ourt applies the ‘some’ or ‘any' evidence test and reviews the record to determine whether legally competent evidence exists to support the findings.” Sartor v. Coastal Resources Management Council, 542 A.2d 1077, 1082-83 (R.I.1988).

IV

Analysis

Standing

As an initial matter, we will address Champlin’s argument that the CRMC, Tikoian, and the intervenors are not aggrieved parties within the meaning of § 42-35-16, the section of the RIAPA that establishes the requirements for petitioning for a writ of certiorari in this Court after a review of an agency decision by the Superior, Family, or District Court. Specifically, § 42-35-16 requires the petitioner to be “aggrieved by a final judgment of the [S]uperior, [F]amily, or [District [C]ourt.” We are of the opinion that Tik-oian, the CRMC, and the intervenors are all aggrieved parties within the statute and, therefore, properly are before this Court.

We do not agree with Champlin’s argument that the intervenors are not aggrieved because they have not alleged an environmental injury in fact. The clear language of § 42-35-16 is that the petitioners must establish that they are aggrieved by “a final judgment.” Champlin’s relies on cases defining the aggrievement requirements for a party seeking judicial review of an agency decision under § 42-35-15(a), which requires the party to be “aggrieved by a final order in a contested case.” East Greenwich Yacht Club v. Coastal Resources Management Council, 118 R.I. 559, 564, 376 A.2d 682, 684-85 (1977); see also Blackstone Valley Chamber of Commerce v. Public Utilities Commission, 452 A.2d 931, 933 n. 3, 934 (R.I. 1982) (holding petitioner did not have standing because petitioner was not aggrieved by commission’s order). However, it was Champlin’s, and not the interve-nors, which sought relief under § 42-35-15. Champlin’s took advantage of that statutory path of review when it appealed to the Superior Court. The court’s substitution of the CRMC decision with the subcommittee recommendation left the inter-venors with no avenue of review except through the discretionary writ of certiora-ri. Therefore, in our view, the intervenors are aggrieved by the Superior Court’s final judgment and properly before this Court.

The CRMC and Tikoian argue that the Superior Court erred when it granted the evidentiary hearing and that the hearing inevitably delved into the mental processes of the agency members who testified-—testimony that the trial justice relied upon in her decision. Conversely, Champ-lin’s argues that the trial justice did not abuse her discretion in conducting the evi-dentiary hearing and it further contends that the trial justice did not rely on any of the members’ deliberative processes when she made her decision.

We are of the opinion that the trial justice did not err when she granted the evidentiary hearing. Pursuant to § 42-35-15(f), in the event of “alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court.” Standing alone, allegations of impropriety with respect to the off-the-record Goulet plan are sufficient to support the trial justice’s election to hold an evidentiary hearing to determine whether procedural irregularities occurred at the agency hearings.

The trial justice did not abuse her discretion in granting the hearing even in the face of the possibility that the mental processes of the agency members might be divulged during the hearing. Indeed, prior to the evidentiary hearing, the parties discussed at length the danger that the hearing inevitably would delve into the agency members’ mental processes. The trial justice vigorously assured the parties that the hearing would not intrude on the members’ mental processes. Additionally, it is well settled that “a trial justice, unlike a jury, can disregard prejudicial material if and when he or she determines that material to be inadmissible.” State v. Notarantonio, 622 A.2d 457, 458 (R.I.1993). The trial justice promised that she would “run a tight ship,” and she warned the attorneys that her ability to disregard such information did not give them free rein to make such impermissible inquiries.

C

Quasi-Judicial Immunity

The problem here, as we see it, is that even though the trial justice properly recognized the dangers inherent in this type of hearing, she repeatedly disregarded her own ground rules. The petitioners argue that quasi-judicial officers, like judges, should not be called upon to testify about their mental processes in coming to their decisions.⁹ In contrast, Champlin’s urges that this issue is a “red herring” because the trial justice did not rely on the agency members’ mental processes when she made her decision.

After careful review of the transcripts, it is our opinion that the quasi-judicial immunity of the CRMC members repeatedly was violated over objection by the CRMC. The quasi-judicial nature of the CRMC gives rise to certain protections, akin to those enjoyed by the judiciary, to preserve the integrity of adjudication and final judgment. See In re Request for Advisory Opinion (CRMC), 961 A.2d at 940 (“the CRMC combines functions that must properly be characterized as executive with functions that are * * * quasi-judicial in nature”); Richardson v. Rhode Island Department of Education, 947 A.2d 253, 258 (R.I. 2008). One such protection is immunity from testifying about the judicial or quasi-judicial officer’s mental process in evaluating the evidence and reaching a decision.

The United States Supreme Court has held that because a judge could not be subjected to similar inquiry it was improper to question the Secretary of Agriculture at trial and at a deposition with respect to how he considered the evidence before him in his rate-setting responsibilities. United States v. Morgan, 313 U.S. 409, 420-22, 61 S.Ct. 999, 85 L.Ed. 1429 (1941). Likewise, the administrative decision makers at the CRMC cannot and should not have been questioned about their mental process in making recommendations to the full council or participating in decision making. See id.; see also Chicago, Burlington & Quincy Railway Co. v. Babcock, 204 U.S. 585, 593, 27 S.Ct. 326, 51 L.Ed. 636 (1907) (analogizing state tax assessment board members’ testimony concerning “operation of * * * minds” to prohibition against allowing jury members to testify as to “the motives and influences that led to their verdict”). “Only factual matters not reaching the examiner’s bases, reasons, mental processes, analyses or conclusions are fair subjects for inquiry.” Green v. Rich Iron Co., 944 F.2d 852, 854 (Fed.Cir. 1991) (internal quotation marks omitted).

This Court has to date recognized quasi-judicial immunity only in terms of immunity from suit. See Richardson, 947 A.2d at 257; Estate of Sherman v. Almeida, 747 A.2d 470, 474 (R.I.2000); Psilopoulos v. State, 636 A.2d 727, 728 (R.I.1994) (“a quasi-judicial determination made in good faith * * * would be entitled to immunity on the part of the agents as well as the sovereign entity that employed them”); Calhoun v. City of Providence, 120 R.I. 619, 631, 390 A.2d 350, 356 (1978) (“Certain types of activities, as for example judicial decision-making * * * must be engaged in by these officials freely, independently, and untrammeled by the possibilities of personal liability”). In our view, however, agency adjudicators also are cloaked with immunity from rendering testimony about their mental processes in reaching decisions just as judicial officers are—lest the compulsion of the testimony of agency adjudicators about their mental process become a favored litigation technique.

Five agency members were called to testify at the evidentiary hearing. Although the trial justice assured the parties on the record prior to the evidentiary hearing that mental processes would be off-limits in their questioning, she did not consistently adhere to this crucial pledge. For example, Tikoian testified that

“My compromise thinking process at that time was that this was a big project. It’d be best if the town and applicant could work something out or whoever could work it out for you as the authoritative body so it was my thought process you try to work out a compromise and we’ll make life easier for all of us. That was my thought process.”

He also testified,

“There [were] math errors on that recommendation. There were navigational issues with respect to that recommendation, and as a chairperson, burden of proof, your Honor, based on our rules is what the applicant has to display, technically the minimum impact to the environment. * * * In my mind, that burden of proof wasn’t displayed.”

Lemont testified that “when we started the hearings, we were at two ends of a pole. There was one group looking for no expansion whatsoever and another looking for 240 feet. When I heard 100 feet, some bells went off and said well, Block Island can live with something.”

The following exchange took place during Sahagian’s testimony:

“Q: You felt that the Goulet alternative was way off base in size and scope, right?

“A: Compared to the evidence and testimony through 23 [hearings], yes.

“Q: So you disagreed with it, right? That was your problem with the Goulet plan, you didn’t like the outcome, right? “A: I would disagree. They didn’t have the guts to show it in public.

U * * *

“Q: You objected because you felt you wanted more than 100 feet? “[COUNSEL]: Objection.

“THE COURT: Excuse me—

“A: No.

“THE COURT: The answer may stand.”

The trial justice improperly allowed this testimony into the record. Accordingly, we will not consider it. The inclusion of and reliance on the mental processes of agency members also is of material significance in our discussion, infra, of the trial justice’s disqualification of Lemont on the basis of her finding of bias.

D

Ex Parte Contacts

This Court’s opinion in Arnold reinforced the parameters of § 42-35-13¹⁰ of the RIAPA prohibiting agency hearing officers from engaging in ex parte contacts. In Arnold, we stressed that “no litigious facts should reach the decision maker off the record in an administrative hearing.” Arnold, 941 A.2d at 821. Thus, under § 42-35-9(e) and § 42-35-10(4), if the decision maker “intends to consult any documentary source or person concerning facts or opinions about the merits of an appeal,” he or she must notify the parties so that they may “contest any such evidence” and “cross-examine any people consulted.” Arnold, 941 A.2d at 821. This prohibition extends to the decision maker’s communications with agency staff members, although communication regarding general matters is permissible. Id.

Goulet Plan

It is clear to us—and the petitioners do not dispute—that Lemont’s and Tikoian’s communications with the CRMC staff members about the Goulet plan and the plan itself represent ex parte contacts under our holding in Arnold. The Goulet plan is an ex parte contact under § 42-35-13 because Lemont, a decision maker, consulted the director of the CRMC, Fugate, about facts concerning the merits of an appeal, specifically, whether another feasible plan might be conceived. See Arnold, 941 A.2d at 821. Fugate, in turn, requested that Goulet create such an alternate plan. Thus, as the trial justice ruled, the Goulet plan clearly falls within the ambit of our holding in Arnold, and it should have been included in the administrative record and subject to cross-examination. See id.

Tikoian’s Contact with the Governor and His Staff

Similarly, we decline to disturb the trial justice’s finding that Tikoian’s contacts with Governor Carcieri and his staff also constituted impermissible ex parte contacts within § 42-35-13 as interpreted by this Court in Arnold. The petitioners concede that Tikoian’s presence in the Governor’s office during the presentation by the CRMC staff may be considered an ex parte contact under Arnold. However, they maintain that the communications between Tikoian and the Governor’s office pertained solely to procedure, and thus those contacts do not come within the purview of § 42-35-13.

The trial justice, after hearing testimony from her ring-side seat at the evidentiary hearing, “rejected] [Governor’s aide Mark] Adelman’s effort to back away from” his statement that Tikoian predicted a tie vote.¹¹ Further, the trial court also found that Tikoian “also wanted to obtain the Governor’s input and approval of the course he was taking.” Adelman testified that “the Governor did indicate at that meeting that the alternative plan * * * was a better option than the full plan.” Thus, Tikoian, as a decision maker on the CRMC, sought an off-the-record opinion from a third party about the merits of the application when he took the initiative to engage the Governor and determine the Governor’s feelings about the pending application. But, the parties were not notified of this consultation and it never became part of the record. Therefore, the Governor’s opinion reached the decision maker off the record in violation of Arnold’s interpretation of § 42-35-13.

Remedy for Ex Parte Contacts

The trial justice correctly noted that although Arnold “clarified illicit ex parte communications in the administrative context in Rhode Island, it did not provide a specific remedy for such improper contact.” The petitioners submit that the trial justice erred because she did not remand the matter to the CRMC. They argue that the trial court misinterpreted the impact of In re Request for Advisory Opinion (CRMC), on the ability of the CRMC to expeditiously hear the matter on remand. They further argue that the failure to remand to the agency deprives the petitioners, including the intervenors, of an appeal as of right to the Superior Court from the CRMC decision and restricts them to seeking the discretionary writ of certiorari from this Court. This, they say, is a violation of their right to due process. Champlin’s submits that the trial justice did not err in declining to remand to the CRMC because the decision whether to remand the matter to the CRMC was within her discretion, and remand was neither required nor feasible.

In our opinion, the trial justice erred when she simply subtracted the votes of the members that she held to be biased and when she elevated the subcommittee recommendation to become, in effect, a final decision of the CRMC, because the recommendation was untainted by the Goulet plan. We hold, especially in light of our decision in Arnold, that the only appropriate remedy here is remand to the agency for supplementation of the record with the ex parte communications to be included to allow the parties to appropriately respond and cross-examine. See Arnold, 941 A.2d at 821.

Under Arnold, Lemont’s contacts with Fugate and Goulet may have been proper had he notified the parties of his intention to seek out an alternate plan, disclosed the request and the resultant plan on the record, and invited the parties to contest the evidence contained in the plan and to cross-examine Goulet concerning his findings. See Arnold, 941 A.2d at 821. But here, the parties were not afforded the opportunity to contest the Goulet plan. Indeed, the Goulet plan was not created until all the evidence had been submitted to the subcommittee and the hearings were concluded. Thus, the Goulet plan represents the very type of “secret evidence” proscribed in Arnold, and the Superior Court should have remanded the matter to the CRMC for supplementation of the record. See Arnold, 941 A.2d at 822.

It is the petitioners’ position that the CRMC is constitutionally sound and “able to act.” The parties agreed that, at the time of oral argument before this Court, the CRMC was composed of eight members, all of whom were gubernatorial appointees. In In re Request for Advisory Opinion, this Court advised that, in light of the 2004 separation-of-powers amendments to the Rhode Island Constitution and the CRMC’s exercise of executive power, it was unconstitutional for members of the General Assembly to serve on the council or for the General Assembly to appoint the CRMC members. In re Request for Advisory Opinion (CRMC), 961 A.2d at 933, 941-42. Rather, it is the Governor who has the constitutional authority to appoint CRMC members with the advice and consent of the Senate. Id. at 942. Although the trial justice noted that we acknowledged the de facto validity of the CRMC’s acts since the 2004 amendments, she incorrectly concluded that legislation was required to “accommodate” this Court’s advisory opinion when she declined to remand the matter to the agency.

The trial justice was also concerned about further delays that would be occasioned by the legislative process and gubernatorial appointments. Although it is unfortunate that this litigation has been stewing for nearly seven years, both parties have contributed to its longevity. Given the serious environmental impact on the Great Salt Pond that the expansion of the marina may engender, a decision on Champlin’s application cannot be made lightly. Thus, we do not accept the Superior Court’s analogy to Sakonnet Rogers, Inc. v. Coastal Resources Management Council, 536 A.2d 893, 897 (R.I.1988), in which this Court reversed a CRMC decision because of the CRMC’s failure to base its decision on any of the required criteria and declined to remand to the agency in light of the seven years that had elapsed since the application was filed. The issue in Sakonnet revolved around an application for alteration of a shoreline in connection with the relocation of a single small cottage to an empty lot. Id. at 894. There is simply no comparison between the discrete facts in that case and the situation currently before us, to say nothing of the major environmental considerations before the CRMC in this application to expand a substantial marina into an ecologically sensitive coastal feature.

Therefore, this Court holds that the trial justice erred as a matter of law in not remanding the case to the CRMC to supplement the record with the Goulet plan and to allow the parties to respond and cross-examine.

E

Trial Court’s Finding of Bias

A finding of bias is a finding of fact. Kelley v. City Council of Cranston, 61 R.I. 472, 484, 1 A.2d 185, 190 (1938). Therefore, we afford great deference to the trial justice’s finding that Tikoian, Lemont, and Zarrella were biased and will overturn her findings of bias only if they are not supported by legally competent evidence. See Sartor, 542 A.2d at 1082-83.

When an administrative agency carries out a quasi-judicial function, it has an obligation of impartiality on par with that of judges. See Town of Richmond v. Wawaloam Reservation, Inc., 850 A.2d 924, 933 (R.I.2004). Under the Fourteenth Amendment, administrative tribunals must not be “biased or otherwise indisposed from rendering a fair and impartial decision.” Davis v. Wood, 444 A.2d 190, 192 (R.I.1982); see also Marshall v. Jerrico, Inc., 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980) (“The Due Process Clause entitles a person to an impartial and disinterested tribunal * * *.”). At the same time, as the trial justice noted, adjudicators in administrative agencies enjoy a “presumption of honesty and integrity.” Davis, 444 A.2d at 192. This presumption may be overcome through evidence that “the same person(s) involved in building one party’s adversarial case is also adjudicating the determinative issues” or if “other special circumstances render the risk of unfairness intolerably high.” Kent County Water Authority v. State (Department of Health), 723 A.2d 1132, 1137 (R.I.1999) (citing La Petite Auberge, Inc. v. Rhode Island Commission for Human Rights, 419 A.2d 274, 285 (R.I.1980)). Significantly, an agency adjudicator must not become an “advocate or participant.” Davis v. Wood, 427 A.2d 332, 337 (R.I.1981). To maintain public confidence in the fairness of the agency’s decision making, an agency adjudicator also must not prejudge a matter before the agency. See Barbara Realty Co. v. Zoning Board of Review of Cranston, 85 R.I. 152, 156, 128 A.2d 342, 344 (1957). This Court has held that a judge must recuse himself or herself when the judge possesses “a ‘personal bias or prejudice by reason of a preconceived and settled opinion of a character calculated to impair his [or her] impartiality seriously and sway his [or her] judgment.’ ” Ryan v. Roman Catholic Bishop of Providence, 941 A.2d 174, 185 (R.I.), cert. denied, - U.S. -, 129 S.Ct. 422, 172 L.Ed.2d 305 (2008) (quoting Kelly v. Rhode Island Public Transit Authority, 740 A.2d 1243, 1246 (R.I.1999)).

It is important to note that engaging in ex parte contacts alone does not automatically render a decision maker biased. See Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority, 685 F.2d 547, 573 (D.C.Cir.1982) (PATCO). Moreover, the term “ex parte contact” has more than one meaning in the context of this case.¹² In concert with other conduct, however, an agency adjudicator’s ex parte contacts may support a finding of bias. See Eacret v. Bonner County, 139 Idaho 780, 86 P.3d 494, 500 (2004) (citing Barbara Realty Co., 85 R.I. at 156, 128 A.2d at 344) (characterizing agency adjudicator’s prejudgment of proceeding, as evidenced through public statements along with the same adjudicator’s ex parte communications, as a “cause for concern” and as factually similar to Barbara Realty).

As the trial justice correctly stated, Rhode Island’s “standard for disqualification based on bias or prejudice is well-settled.” We are satisfied that the trial justice’s factual findings of bias with respect to Tikoian and Zarrella are supported by legally competent evidence.

Michael Tikoian

The petitioners all maintain that Tikoian’s contacts with subcommittee members should not be considered ex parte. In addition, the intervenors maintain that those contacts with the Governor and his staff and the statements to the media should not be considered ex parte communications. Also, the CRMC and Tikoian further contend that, even if the communications with the Governor and his staff and his statements to the media are ex parte contacts, they do not support a finding of bias. Not surprisingly, Champ-lin’s argues that the trial justice had a “sufficient evidentiary basis” to disqualify Tikoian.

The trial justice relied on several of what she found to be contraventions of Tikoian’s “role as an agency adjudicator” in concluding that he was biased. First, the trial justice cited Tikoian’s communication with various subcommittee members wherein he promised a “compromise plan” and his subsequent efforts to “lobby” them to support the ultimate Goulet plan. This, she found, violated the statutory prohibition against ex parte contacts with the subcommittee members. The trial justice noted that Tikoian’s attempt to exert influence over the subcommittee went to the extent of threatening one member that he would not be reappointed to his seat on the CRMC if he did not support the Goulet plan. Second, the trial justice relied on Tikoian’s contact with the Governor’s office as evidence that he had “abandoned his role as an impartial adjudicator.” Third, the trial justice pointed to Tikoian’s communications with reporters as an indication of the “degree of his prejudgment.” The trial justice thus found that these contacts, “in the aggregate,” established Tikoian’s bias and necessitated his disqualification.

Mindful of our standard of review, we hold that the trial justice’s finding that Tikoian was biased is supported by legally competent evidence. Importantly, the bases for her finding of Tikoian’s bias and resultant disqualification related to his specific actions and not to his mental processes as an agency adjudicator. She found that he settled on a desired outcome long before the full council hearing and that he worked tirelessly to advance it. The trial justice concluded that Tikoian’s efforts to sway the subcommittee and the full CRMC, his statements to the press, and his attempt to divine the position of the Governor’s office, all evinced “ ‘a preconceived or settled opinion.’ ” See Ryan, 941 A.2d at 185. She also ruled that he improperly advocated against the grant of Champlin’s application by making no secret to his colleagues or the local media of his support for an alternative plan and his disdain for Champlin’s proposed expansion. See Davis, 427 A.2d at 837. Thus, she held that Tikoian publicly prejudged Champlin’s application and that he was incapable of fulfilling the role of “an impartial trier of fact.” See id. In doing so, she made extensive credibility determinations during the evidentiary hearing, to which we defer, and, which we decline to disturb on appeal. Champlin’s is entitled under the guarantees of due process to feel confident that an impartial administrative tribunal is conscientiously considering its application on the basis of “its own circumstances.” See id.

It is not our intent to discourage healthy debate among members of a quasi-judicial board. We do, however, accept the trial justice’s holding that Tikoian crossed the line in advocating for one position over another. Further, we recognize that carrying out the functions of state government requires cooperation and the exchange of ideas. The Governor and his staff have an understandable interest in staying abreast of the progress of a high profile matter affecting Rhode Island. However, we are also of the opinion that staying current on important issues moving through agency proceedings can and must be done without engaging in undisclosed ex parte contacts. Particularly in light of the fact that Tikoian was the chairman of the CRMC, it is “in keeping with the high canons of justice and fair play if he is disqualified.” Barbara Realty Co., 85 R.I. at 157, 128 A.2d at 344. We affirm the trial justice’s finding that Tikoian’s bias warranted his disqualification from participation with regard to Champlin’s application.

Gerald Zarrella

We also hold that the trial justice was not clearly wrong in her finding that Zarrella was biased. The trial justice found that Zarrella displayed a “personal bias against the Town” and in favor of Champlin’s. First, she based this finding on Zarrella’s communications with town officials in which Zarrella said that Champlin’s was “entitled to this expansion” and the islanders were “naive.” Second, the trial justice relied on Zarrella’s negative comments about the town’s witnesses and its alternate plan following a hearing. Third, she focused on Zarrella’s favorable comments about Champlin’s.

Like Tikoian, Zarrella demonstrated difficulty in acting as an impartial trier of fact. Rather, he took it upon himself to further the cause of one party over another in his unabashed affinity for Champlin’s position and disdain for that of the town’s. In tandem, his statements to town officials concerning Champlin’s entitlement to expansion and his criticisms of the town and its residents for what he perceived as their naivete in resisting development effectively rebutted his presumed status as an honest adjudicator. Davis, 444 A.2d at 192. In the hearing process, the town enjoys the same due process guarantees as Champ-lin’s; it should be assured that it has a fair chance to make its argument before the subcommittee and full council without facing the additional hurdle of convincing an agency adjudicator who has entrenched himself in a contrary position. Barbara Realty Co., 85 R.I. at 156, 128 A.2d at 844. Therefore, Zarrella’s activities during the workshop and the CRMC hearing has constitutional implications as a result of his “‘preconceived and settled opinion’” concerning Champlin’s and his personal feelings toward the parties involved. Ryan, 941 A.2d at 185. When viewed in light of the trial justice’s extensive credibility findings during the evidentiary hearing and through the prism of the deference owed to the trial justice’s factual findings, we will not disturb on appeal the trial justice’s findings that due process demands Zarrel-la’s disqualification because of demonstrated bias.¹³

Paul Lemont

The petitioners contend that the trial justice erred when she found that Lemont was biased and when she disqualified him on the basis of his ex parte contacts in connection with the Goulet plan. They contend that the town already had introduced a 100-foot plan into evidence, prior to Lemont’s request for the alternate Goulet plan, and thus Lemont had properly formed an opinion on the basis of the proceedings on the record. Additionally, the petitioners argue that the trial justice failed to recognize that, like Lemont, the other subcommittee members also favored a modified expansion that was not independently supported by the record. Although the respondent noted that “it is perfectly appropriate for a judicial officer overseeing a contested hearing to urge the parties to compromise,” Champlin’s argues that Lemont was biased because he became an advocate for the “best interests of the Town” in trying to reach a compromise that was only acceptable by the town rather than Champlin’s.

We hold that the trial justice’s finding that Lemont was biased is not supported by legally competent evidence. First, the trial justice premised her conclusion as to Lemont’s bias on the fact that he directed Fugate to recruit Goulet to formulate the alternate plan and his lobbying for the Goulet plan to other subcommittee members. Additionally, the trial justice found bias in Lemont’s effort to “infect” the workshop and full council with a thinly veiled version of the Goulet plan. She described Lemont as “act[ing] in concert with Tikoian.” Also, the trial justice based her finding of Lemont’s bias on his meeting with the Governor “to discuss the status of the case.” Finally, the trial justice relied on Lemont’s admission during the evidentiary hearing “that he was influenced by outside pressures.”

As discussed, the evidentiary hearing repeatedly and improperly subjected agency members to questioning that revealed the members’ mental processes as agency adjudicators. Lemont was no exception. Despite her assurances to the contrary, the trial justice clearly relied on Lemont’s testimony as to his mental process when she made her finding that Lemont was biased by virtue of his commitment to a “compromise.” Indeed, the trial court’s decision quotes directly and at length from Lemont’s testimony in which he discussed his mental process that led him to decide that a compromise was the only appropriate resolution of the matter after he began reviewing the evidence. The trial justice’s decision states:

“Lemont testified that although he did not favor any expansion initially, he later decided to support a compromise to get the matter resolved. * * * He testified that he ‘saw all of the cumulative things that were going on, the editorials, et cetera, et cetera, I came up with the thought that perhaps we could compromise this, that everybody could get something, and the matter would be resolved.’ ”

The decision also quoted his testimony that

“I came up with a compromise that I thought would solve the problem, and that’s what I wanted to do. I was chairman of the subcommittee. I had heard the testimony. I had heard the comments of the subcommittee. I was looking for something that would be a compromise. There were many people that I heard on Block Island that wanted no expansion. There were later, some of the letters that I did look at, no expansion. I read the editorial in the Block Island paper, the letters to the editor. I listened to your witnesses. I listened to all of the witnesses. And I came up with a conclusion that perhaps there might be a compromise that would settle this matter.”

Therefore, in his responses to questions posed to him at the evidentiary hearing, Lemont testified as to “the process by which he reached the conclusion[ ]” that he would not join in the subcommittee’s recommendation to the CRMC. See Morgan, 313 U.S. at 422, 61 S.Ct. 999. The only proper area of inquiry concerning Lemont was to factual matters, and the trial justice erred when she relied on anything else. See Green, 944 F.2d at 854. The passages of Lemont’s testimony quoted in the Superior Court’s decision are replete with examples of Lemont’s mental process. The trial justice relied on testimony that went beyond factual assertions about what evidence was before Lemont. On the contrary, his testimony discussed his conclusion that a compromise was appropriate and how he reached this conclusion. As Justice Holmes characterized the examination of the “operation of [the tax assessment board’s] minds” in Babcock, “[t]his was wholly improper.” Babcock, 204 U.S. at 593, 27 S.Ct. 326.

When Lemont’s testimony of his mental process is removed from consideration, we are of the opinion that the trial justice’s finding of bias on the part of Lemont was error because the remaining legally competent evidence is far too flimsy to support such a conclusion. As the trial justice correctly noted, “disqualification is a severe sanction.” Therefore, Lemont’s ex parte communication with Fugate in seeking what became known as the Goulet plan and his communication -with the Governor regarding the “status of the case,” while improper, are insufficient to demonstrate the prejudgment and bias necessitating disqualification. Additionally, Lemont’s instruction to Goulet to show the plan to subcommittee members also is insufficient because, as a subcommittee member himself, Lemont’s communication -with the other members is not an ex parte contact.

We share the trial justice’s disappointment in the lax approach that the CRMC members took toward insulating themselves from improper ex parte contacts. However, the occurrence of ex parte contacts does not require disqualification in every instance. See, e.g., PATCO, 685 F.2d at 573 (disapproving of clearly improper ex parte dinner between agency member and interested labor leader, but holding that the contact did not preclude a fair decision to the parties or the public interest). Thus, once the record is sanitized of any mental processes, Lemont is more like the other agency members who the trial justice found regrettably engaged in ex parte contacts that did not “rise[ ] to the level that would warrant disqualification” and less like Tikoian or Zarrella.

We hold that the trial justice’s finding of Lemont’s bias and her disqualification of him from the workshop and council hearing were not based on legally competent evidence.

F

Although the trial justice declared that she had the discretion to fashion an equitable remedy, her ruling on a remedy under § 42-35-15 is a question of law that we review de novo. See Johnston Ambulatory Surgical Associates, Ltd., 755 A.2d at 805. The trial justice said that based on the holding in PATCO, she had “equitable discretion” to decide whether to vacate the agency’s decision. PATCO, 685 F.2d at 565. Further, the trial justice quoted Birchwood Realty, Inc. v. Grant, 627 A.2d 827, 834 (R.I.1993) for the proposition that “[i]t is clear that the Superior Court justice has some discretion in fashioning a remedy when hearing an appeal from an agency decision.” (emphasis added.) We do not agree with the trial justice’s interpretation that Birch-wood recognizes this broad authority. Rather, Birchwood supports a trial justice’s discretion to choose among the remedies provided in § 42-35-15(g), that is, affirm, reverse, remand, or modify an agency decision. Indeed, this Court in Birchwood,, after recognizing the trial justice’s discretion to remand the case, held that the trial justice’s “order of remand was simply too broad.” Birchwood, 627 A.2d at 834. There, we established that there are real limits to the trial justice’s discretion in “fashioning” a remedy. Id.

Section 42 — 35—15(g) does not permit the trial justice to substitute the agency’s decision with another agency document that is not truly a “decision.” The trial justice purported to “uphold” the “decision” of the CRMC members who voted in favor of the subcommittee’s recommendation. However, there was nothing to “uphold,” because what the members who voted to adopt the recommendation put their signatures to was entitled “Findings of Fact,” not “Decision.” The wholesale replacement of the agency’s decision with a mere recommendation of the subcommittee is not one of the options available to the trial justice under the statute. In elevating the subcommittee over the full council, the trial justice clearly erred because the subcommittee simply is not authorized under the CRMC Management Procedures to render a decision for the CRMC. The subcommittee recommendation remained just that, a mere recommendation to the full council.

We hold that a remand to the agency is necessary so that the ex parte contacts of the sort found by the trial justice may be placed in the record and the parties be offered the opportunity to respond.

Remand to the agency generally is the proper remedy “under a variety of circumstances.” 2 Am.Jur.2d Administrative Law § 574 at 489, 490 (2004) (listing nine justifications for remand, including unfair agency proceedings and “reversible due process procedural defects” at the agency level); see Florida Power & Light Co. v. Lorton, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985) (“If the record before the agency does not support the agency action, if the agency has not considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged agency action on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”). Remand is favorable because of “the unique expertise possessed by administrative agencies.” See Sartor, 542 A.2d at 1081. This Court has characterized the authority of the Superior Court to remand for further proceedings under § 42-35-15(g) as “a broad grant of power * * * to remand, in a proper case, to correct deficiencies in the record and thus afford the litigants a meaningful review.” Lemoine v. Department of Mental Health, Retardation and Hospitals, 113 R.I. 285, 290, 320 A.2d 611, 614 (1974) (affirming trial justice’s order remanding the case to the agency “for the taking of additional evidence”).

We acknowledge that there are instances in which a remand to an administrative agency may not be the most appropriate remedy. For instance, in Easton’s Point Association, Inc. v. Coastal Resources Management Council, 559 A.2d 633, 636 (R.I.1989), we determined that a trial justice erred when he exceeded the appropriate scope of review upon examination of an agency decision. The matter was before the Superior Court on the appeal of objectors after the CRMC had granted a petition for the construction of a new hotel. Id. at 634. After vacating the Superior Court judgment, we grappled with the issue of remedy. Id. at 636. In deciding not to remand to the agency, we said, “[w]e do not believe that a remand of this case would further the interests of justice. Since the facts and issues have been developed and clarified, further remand would not provide decisive new information.” Id.

In this ease, however, the record is not complete because the impermissible ex parte information must be made available for the examination of the parties. It is therefore our opinion that the interests of justice are best served by a remand.¹⁴

In our opinion, this case should be returned to the Superior Court with an order that that tribunal remand the matter to the CRMC. That body should be ordered to expeditiously reopen the hearing on the Champlin’s application. The record is to be expanded to include the Goulet plan and all supporting materials.¹⁵ Any party may cross-examine individuals involved in the creation of the Goulet plan. The current composition of the CRMC’s membership may vote on the matter. Each voting member must certify that he or she has read the entire record before the council, including the transcripts of the subcommittee hearings and workshop and any accompanying evidence, supporting data, and supplementary material. We emphasize that the Superior Court is to direct that the CRMC is to proceed forthwith in bringing this matter to a close.

The epigraph of the trial justice’s decision invokes the inherent link between justice and fairness; however, the decision actually precipitated an unfair result.¹⁶ While the trial justice’s departure from the statutory scheme more or less operated in Champlin’s favor, the town and the inter-venors were saddled with an adverse decision but were deprived of an opportunity to respond even though they had no hand in the ex parte contacts or the resulting demonstration of bias. Consequently, the town and intervenors were denied the opportunity to appeal a final decision adverse to them, ostensibly made by the CRMC, but actually directed by the trial justice. We are of the opinion that the remedy we order today not only comports with the law, but will preserve the public’s trust in the integrity of the administrative process.

y

Conclusion

For the reasons set forth in this opinion, we affirm the judgment of the Superior Court in part, reverse in part, and remand to the Superior Court with instructions that it remand this matter to the CRMC for further proceedings, consistent with this opinion, on a supplemented record before the CRMC as it currently is constituted.

1 . New Shoreham is the only municipality on Block Island.

2 . The CRMC is authorized to appoint a hearing officer, but the CRMC chairman is also authorized to designate a subcommittee to "act as hearing officers in any contested case” if the hearing officers "are otherwise engaged and unable to hear the matter in a timely fashion.” G.L.1956 § 46-23-20.1(e).

3 . Tikoian also appointed Senator Susan Sos-nowski, but she did not participate in the subcommittee's hearings or its recommendation.

4 . The town also brought an administrative appeal from the failure of the CRMC to approve the Harbor Management Plan submitted in 1999. This appeal was consolidated with Champlin's appeal. The trial justice dismissed the town's appeal without prejudice on the grounds that the town did not have standing under G.L.1956 § 42-35-15. This ruling has not been appealed to this Court.

5 . Section 42-35-15(1) provides:

"The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in court. The court, upon request, shall hear oral argument and receive written briefs.”

6 . The trial justice subtracted the votes of Tik-oian, Lemont, and Zarrella.

7 . On more than one occasion, the trial justice incorrectly referred to the subcommittee recommendation as a decision.

8 . We thank the Nature Conservancy for its amicus curiae brief.

9 . Tikoian petitioned this Court for a writ of certiorari to review the trial justice’s order granting the evidentiary hearing and the denial of his motion in limine seeking to disallow questioning of all agency members. This Court denied the petition. Champlin's Realty Associates v. Tikoian, No.2007-57-M.P. (R.I., filed Mar. 8, 2007) (mem.).

10 . Section 42-35-13 provides:

“Unless required for the disposition of ex parte matters authorized by law, members or employees of an agency assigned to render an order or to make findings of fact and conclusions of law in a contested case shall not, directly or indirectly, in connection with any issue of fact, communicate with any person or party, nor, in connection with any issue of law, with any party or his or her representative, except upon notice and opportunity for all parties to participate; but any agency member:

"(1) May communicate with other members of the agency, and

"(2) May have the aid and advice of one or more personal assistants.”

11 . Mark Adelman was a policy analyst in Governor Carcieri's office assigned to advise the Governor with regard to the CRMC and Champlin’s application. He communicated with Tikoian about Champlin’s application.

12 . An ex parte contact such as was present in Arnold v. Lebel, 941 A.2d 813 (R.I.2007) may be completely free of any bias, partiality, or prejudgment on behalf of an agency adjudicator who seeks the off-the-record information. These are not ex parte contacts in the tradi-lional sense of the term, that is, an adjudicator’s off-the-record communication with an interested individual. Therefore, the meaning "ex parte " in the context of the bias analysis is distinct from the meaning used in the Arnold analysis.

13 . Zarrella is no longer a member of the CRMC.

14 .In our view, Arnold anticipates remand to the agency to supplement the record in the case of ex parte contacts, as evidenced by this Court’s holding in that case that the parties "must” have the opportunity contest and cross-examine outside sources consulted on the merits of a matter and, if the final decision is to be based on such information, then it "must be included on the record.” Arnold, 941 A.2d at 821.

15 . Although we are of the opinion that Tikoi-an’s contact with the Governor also constitutes an ex parte contact under Arnold, Tikoi-an’s continued disqualification from the full council renders it unnecessary to expend more time and resources supplementing the record with those communications.

16 . "Fairness is what justice really is.” The New York Public Library Book of Twentieth-Century American Quotations 130 (1992) (quoting Justice Potter Stewart).