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Examples of conflicts and non-conflicts of interest

• A prominent real estate developer in Texas sought a permit from a city planning commission, leading four of the commission’s seven members to recuse themselves, stating they had contracts with the developer. Without the four, the commission no longer had a quorum and could not hear the request. Later, the city attorney stated only one commission member — the one working on the actual project for which a permit was being sought — must recuse himself. The others were deemed not to have a conflict of interest.
Source: Eric Kelly, Ball State University and Cooper Consulting Co., Dallas, Texas
• In Arizona, a local fire district had its application for rezoning to build a new fire station denied amid strong neighborhood opposition. Among other things, neighbors alleged a conflict of interest because the son of the zoning commission’s chairman owned the property that the fire district was attempting to buy.
Source: Eric Kelly, Ball State University and Planning and Building Dept. of Sahuarita, Ariz.
• In Minneapolis, the city’s planning commission chairman was stopped at the last moment from testifying in front of his own commission on behalf of a project on which he was working as a landscape architect. The same planning commission came under fire after one of its own members, also an architect, recused herself from a vote, but then stepped in front of the commission to present the case for a project on which her company was working. In her defense, the commission member noted she had received approval from the city’s ethics officer to testify before the board.
Source: Minneapolis StarTribune, Sept. 10, 2012
• In New Jersey, a city traffic planner was found to have a conflict of interest after it was learned his private firm had — in another matter — represented a developer who was involved in a lengthy application before the board. While the traffic planner did not work directly for the developer in the other case, he still worked in support of an application on behalf of the developer. City officials removed the traffic planner from the project.
Source: Wyckoff-Franklin Lakes Patch, April 24, 2012
 

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October 7, 2012

Experts: Boards often face conflicts of interest

Problem surfaced on Vigo County Area Plan Commission in August

Arthur Foulkes The Tribune-Star

TERRE HAUTE — The unearthing in August of an apparent conflict of interest involving a member of the Vigo County Area Plan Commission — the body that advises local elected officials on rezoning requests — points to a danger facing all zoning boards, according to planning experts.

Plan commissioners are often real estate professionals or others with an interest in property development, said William Klein, director of research at the non-profit American Planning Association in Chicago. So it’s not surprising commissioners often have business interests that overlap with things that come before their boards.

“You really can’t avoid it,” Klein said in a Tribune-Star interview Friday. However, whenever a conflict — or even a perceived conflict — arises, plan commissioners should avoid voting or discussing the conflicted matter with other board members. In fact, a conflicted commissioner should leave the meeting room, Klein said. Just his or her presence in the room can exert “an invisible influence” on other commissioners, he said.

In August, Norm Froderman, a longtime member of the Vigo County Area Plan Commission, acknowledged that he owned a share of Cobblestone Crossings, a south-side property development that has frequently come before the commission for zoning and other approvals. When asked whether he owned shares while taking part in votes, Froderman answered: “Probably.”

In light of the acknowledgment, county officials declared that all of the rezoning that took place at Cobblestone while Froderman served was now cast “in doubt.” As a result, the Vigo County Area Planning Department is requiring that Cobblestone come back before the commission to resubmit its rezoning requests. A court has not ordered such action, noted Jeremy Weir, director of the planning department; however, “we are trying to be proactive in regard to getting the developer aware of where we believe the legal standing of the action would lead.”

If and when Cobblestone returns to the Area Plan Commission, anyone with an ownership stake in development will not take part in any new zoning votes, county officials have stated. Weir expects the development to be back on the Area Plan Commission agenda at its Nov. 7 meeting in the Vigo County Annex.

Backing into conflicts

Plan commissioners are often the sort of people who are quite active in a community and who care strongly about what’s going on, said Eric Kelly, an attorney and professor of planning ethics and law at Ball State University. Those are the kinds of people you often want on such boards, he said.

However, this means commissioners can sometimes “back into” conflicts unintentionally, Kelly said, especially in smaller communities, such as Terre Haute or Muncie.

Nevertheless, plan commissioners should “bend over backwards” to avoid even appearances of conflict, Kelly said. In fact, he would like to see laws governing planning organizations be broadened to cover a wider range of potential conflicts.

“It can look just awful,” if board members have even an indirect connection to the matters that come before them, Kelly said.

In an interview with the Tribune-Star in September, Froderman said his ownership share of Cobblestone is “indirect at best.” He also said it amounted to less than one-half of 1 percent of Southern Indiana Investments and emerged from an investment he made back in the 1980s.

“It just kind of worked its way into this,” said Froderman, who did not wish to comment for this article.

But the size or relative importance of a commissioner’s financial stake is not mentioned in Vigo County’s Unified Zoning Ordinance, which states that a member of the Area Plan Commission is prohibited from taking part “in a hearing or decision of the Board concerning a matter in which he has a direct or indirect financial interest.” The Area Plan Commission’s bylaws echo that ordinance as does the Vigo County employee handbook.

State law goes a little further. It bars not only participation by commissioners with a financial interest in a matter, but also states that a commissioner may not take part in a hearing on a subject in which he or she is “biased or prejudiced or otherwise unable to be impartial.”

Noting the state law, Weir reminded plan commissioners at Wednesday night’s meeting in the Vigo County Annex that they need to recuse themselves from taking part in any votes on matters in which they have a financial stake. He also informed them they are to avoid voting on matters in which they may be biased or influenced by someone or something else.

“If you are in a situation where you feel like you’ve been biased in some fashion or influenced toward something, you should not feel guilty about stating that,” Weir said. “Go ahead and bring that up prior to it being heard and the board, as a body, can decide whether or not you have to go forward with voting on something of that nature.”

But that doesn’t go far enough, said Charlie Williams, president of the homeowners association involved in legal arm wrestling with Cobblestone Crossings and the person whose questioning at an Area Plan Commission meeting in August uncovered Froderman’s apparent conflict of interest. Williams would like to see stronger action to avoid potential conflicts in the future.

“Norm [Froderman] was honest, to his credit” when he admitted his investment in Cobblestone, Williams said, adding he believes there needs to be something more than voluntary policing” by commission members in the future.

Williams suggests that members of the Area Plan Commission review their agendas prior to their monthly meetings and then answer a roll-call that specifically asks whether they have a conflict facing the commission on that night. “That would be the sort of [due diligence] that would let commissioners know they are going to be held accountable,” he said.

Reporter Arthur Foulkes can be reached at (812) 231-4232 or arthur.foulkes@tribstar.com.



What to know

• The Vigo County Area Plan Commission normally meets the first Wednesday of each month at 7 p.m. in the Vigo County Annex.

• The commission has 14 members who are appointed by elected officials and who represent different geographic regions of the county.

• Under the law, each member is to be appointed because of his or her knowledge and experience in community affairs. Members are also expected to have an understanding of the social, economic, agricultural and industrial problems of the area.

Source: Vigo County Unified Zoning Ordinance

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