Ethics and COWnflict of interest

February 9, 2017

This Town has a strange view of good government ethics. At the request of former COWncil member Dave Burrows, the Town spent $12,000 on an investigation of ASRB member Nancy Reyering cow-ncerning an email she sent to two other ASRB members and the Planning Director regarding a residential project up for review by the ASRB. Nancy appears to have been questioning the propriety of COWncil member Peter Mason, who was the architect on the project, to be presenting a project which she felt did not really reflect the Town’s building design guidelines, General Plan or Municipal Code and that he should not ask for exceptions. She then went on to list a number of negative reactions to the project. She also referenced some personal grievances against Peter.

The Law firm of Burke, Williams & Sorensen investigated 9 charges and sustained the following 5:

Charge No. 2: Did Ms. Reyering violate Section 2 of the Ethics Code by suggesting that the ASRB should apply unequal treatment to Town Councilmembers whose private firms represent clients before the Town?

Charge No. 3: Did Ms. Reyering violate Section 3(b) of the Ethics Code by reaching a conclusion about the Bardet Road project referenced in the e-mail without hearing testimony about the project, and by communicating her recommendation to the ASRB prior to the ASRB hearing on the project?

Charge No. 5: Did Ms. Reyering violate Section 5 of the Ethics Code by making a personal attack against a Councilmember by suggesting that Councilmember Mason’s actions give the appearance that he is attempting to take advantage of his position as a Councilmember to gain special consideration for his private architectural client?

Charge No. 6: Did Ms. Reyering violate Section 6 of the Ethics Code by attempting to improperly influence the ASRB decision-making process with respect to this project and reaching a conclusion about the project before hearing testimony at the public meeting?

Charge No. 9: Did Ms. Reyering violate Section 13 of the Ethics Code by failing to maintain a positive and constructive working environment for the Bardet Road project applicant and Mr. Mason’s business.

Obviously, persons who sit on the COWncil or various Commissions and Boards can appear before those bodies in their professional capacity and personal capacity. We don’t want to discourage their participation in our governance. But Nancy was raising a good question. How can we make sure that their membership does not create an atmosphere of undue influence whereby projects which would not be approved for other COWs is approved because of the status of the applicant or consultant as COWncil member or Board member? Should there be guidelines?

To the extent that a member of Council or any Board raises concerns about ethical conduct of government officials, whether the concern turns out to be valid concerns or not, they are whistle blowers. An investigation like this will make others less likely to raise concerns.

Civility is important but it should only be a issue in extreme cases. The First Amendment right of free speech needs to be taken seriously. At what point does criticism become not maintaining “a positive and constructive working environment” for the applicant and a criticized professional’s business.

We are also a little concerned about the reach of the charge of reaching a conclusion about the Bardet Road project referenced in the email without hearing testimony. All members who read the staff report and/or visit sites reach conclusions. Hopefully, those are tentative conclusions and the member hears the matter with a willingness to change their mind. Nancy did not violate the Brown Act by communicating on the project with two other members. Do we want a blanket rule that there is to be no communication between members. If so, the policy should so state.

We have written in the past on the need for clearer ethics and conflict standards which must be evenly and fairly applied. We understand that Nancy has resigned from the ASRB. We are not sad to see her go. We are however concerned about the breadth of the confirmed charges. We are also concerned about the issue of undue influence when a professional appears on a project and would suggest a clear policy that that there is to be no special treatment in such circumstances and we wonder if it was not a cow-ncil member project would this behavior have been investigated?

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