NEW ETHICS POLICY ADOPTED MARCH 26 FOR LAFAYETTE PLANNING AND DESIGN REVIEW COMMISSIONS
A new policy on conflicts of interest on the Lafayette land use commissions was finally approved by a 3-2 vote at the City Council meeting at 11pm on March 26. The new policy, referred to as Version A, prevents commissioners from appearing for their own clients and includes the firms and affiliates of commissioners as well. Five commissioners have subsequently resigned. Here is an analysis of the background to this vote.
The City of Lafayette has for many years appointed local architects to the Lafayette Design Review Commission (DRC) and Lafayette Planning Commission (PC). Usually all or almost all the DRC has been architects. There have been many complaints. The several dozen citizen letters and comments at hearings were unanimously in support of the strict policy, Version A.
There have been two problems with the system being populated with local architects from firms that represent their applicants before the DRC and PC:
First, there have been six commissioners from the DRC and PC who have personally appeared for clients multiple times before their own and other commissions, even the city council. This is a misdemeanor under the California Political Reform Act, Government Code 87100 et seq., punishable by a fine of up to $10,000. DRC Commissioner Ward was fined by the California Fair Political Practices Commission (FPPC) in 2008 (FPPC no. 05/652) for advocating for a client to his other DRC commissioners. Former PC Commissioner Sayles is under investigation by the FPPC (FPPC no. 16/772) for alleged appearances for clients in 2015. Many citizens who opposed these applications were not aware of the FPPC remedy and incidents have gone unreported. Regrettably, the past City Council has not reported such activity to the FPPC nor undertaken any corrective action, literally a zero enforcement policy. This is especially the case with our longest-serving City Councilmember, who has voted to appoint and reappoint these commissioners many times and declined to address the problem until Councilmembers Samson and Burks came along.
Second, the architecture firms of sitting commissioners have represented clients on land use applications before the DRC and PC. For example, former Design Review Chair Gordon Chong, who resigned in protest, described the practice to the City Council as developers who were “well schooled at co-opting” Lafayette’s land use process by adding Lafayette DRC and PC Commissioners to their development team. On March 19, PC Commissioner Ateljevich described watching another PC Commissioner present for his own client and that “every word the public said was true” in complaints about the abuse. Developers have hired commissioner’s firms as Mr. Chong states, the commissioner works on the project and receives income, but the actual presentation before the DRC and PC is made by another member of the firm and that commissioner recuses from the actual vote. This has happened many dozens of times in past years; recently, for example, the developers of the Woodbury II 99-unit condominium project and the proposed cancer business project near the Lafayette reservoir hired the firms of both PC Commissioner Chastain and DRC Commissioner Cleaver to represent them, one from each commission. There was a further perceived problem that architect commissioners would vote reciprocally for the projects of each other’s firms. Proving motivation is very difficult but the appearance was unquestionably there.
Councilmembers Samson and Burks, the two most recent councilmembers, recognized the problem and proposed so-called Version A that prevents commissioners and their firms from representing clients before the DRC and PC while the commissioner from their firm is on the commission and for a period of one-year. The reform was sorely needed. Councilmember Samson has commented that he regarded this as the single largest problem with the City of Lafayette. Councilmember Burks’ commented Monday night that this would be the most important vote he would cast on the council. Councilmember Mark Mitchell was persuaded and joined him. Councilmembers Tatzin and Mike Anderson have appointed these commissioners for years and done nothing about it, even when asked to do so by citizens, and voted against the reform.
Version C, proposed by Councilmember Tatzin, purported to go beyond state law as to so-called solo practitioner commissioners, but this was not true. A written comment from Senior FPPC Counsel, dated March 19 confirmed that state law “would not permit an architect, who is a solo practitioner, to advocate on behalf of a client”, contradicting Councilmember Tatzin. Councilmember Tatzin’s Version C would have expressly authorized firms of commissioners to represent clients before the DRC and PC while their firm member was on the commission, and even allow that commissioner to work on the project until the time the application was submitted to the city and under “review”. Version C would have regressed from state law and did not restrict reciprocal voting, i.e. voting for another commissioner’s firm’s project followed by that commissioner voting for a project of the first commissioner’s firm.
Many of the PC commissioners now resigning had issues. Commissioner Chastain’s firm has represented clients before the city many times, and his website has advertised that he is a Lafayette PC commissioner. Commissioner Curtin, an attorney, is partners with Alan Moore who represents the Deer Hill developer that is the subject of Measure L now going on the June ballot. Commissioner Gutzwiller is a commercial real estate broker who complained that his firm would be restricted.
Hopefully qualified citizen commissioners will soon be appointed, the PC will be functioning better than ever, and this regrettable phase of Lafayette city government will be over. Save Lafayette and many citizens welcome the reform.