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Minneapolis considers conflict-of interest rule changes for city boards

In Minneapolis, builders and developers serve on the city’s Planning Commission. Architects and real estate professionals serve on the Heritage Preservation Commission, and citizens involved in zoning matters serve on the Zoning Board of Adjustment.

City ordinances actually require some board slots to be filled with professionals from the represented field of interest.

That practice, though, has created problems and, last spring, prompted an ethics complaint.

Some Planning Commission members recuse themselves from an agenda item, citing conflict of interest, and then appear before their fellow commissioners on behalf of that item.

The city’s Ethical Practices Board became concerned that such personal appearances could erode public confidence and ordered a study of how other cities have handled this or similar problems.

That study was presented to the City Council’s Ways and Means/Budget Committee with the suggestion that it is possible to amend the city’s ethics ordinance but that the option needs further study.

“A quick fix creates other problems,” said Susan Trammell, who serves at the city’s ethics officer from the City Attorney’s Office.

She recommended instead that the development boards take a look at their individual bylaws and make changes there when possible. She also said changes to the ordinance are needed but require more study.

“In my opinion, what the city attorney has offered us is a woefully inadequate solution,” said Dan Cohen, a former City Council member currently serving on the Planning Commission.

“This doesn’t pass the smell test,” said Council Member Meg Tuthill, who added that most of the complaints she hears about the boards and commissions focus on the fact that they are not elected, so voters have no say in who is chosen to serve.

The study includes comparisons of the Minneapolis system with those in 13 other cities and a total of 39 boards and commissions. The study includes the structure and membership of boards, conflicts of interest, recusal procedures, term limits and the requirement that members who recuses themselves leave the room during deliberations.

“The state of Minnesota has an open meeting law and our meetings are public,” said Trammell, explaining why a board or commission member should not be asked to leave the room. Leaving the room could also, according to Trammell, cause a board or commission to lose a quorum.

“We have never had a quorum issue as a result of recusals in the four years I have been on the Planning Commission,” said Cohen, who further complained that commissioners who have recused themselves may now sit in the public seats with other spectators while commission members discuss their projects.

The study found no incident where development-related professionals were prevented from serving on boards or commissions but acknowledges that there is a built-in potential for conflict-of-interest charges because of the professionals’ financial interests in the development community.

Of the 13 cities studied, only Denver prohibits board or commission members from addressing fellow members in a professional capacity.  Only Atlanta and Wichita require members to leave the room or dissociate from the meeting after a conflict of interest is declared.

In 2012, the Planning Commission recorded the most conflict-of-interest recusals (44) among the city’s three development boards. In 2011, it had 28 recusals. Commissioner Lauren Huynh, a green-building consultant, had 15 recusals, and former commission President David Motzenbecker had 9, as did Cohen. Motzenbecker resigned from the commission earlier this month.

Cohen said his recusals were done to protest the system that allowed others to retain their private interests and continue to serve.

The Heritage Preservation Commission had nine recusals in 2012, up three from 2011, when there were six. The Zoning Board of Adjustment had one recusal in 2012 and one in 2011.

Term limits are in place for about half of the boards and commissions in the study, but Trammell said she is not recommending term limits because the number of recusals typically decrease the longer a member serves.

“This needs more thought,” said Trammell after the committee accepted the study. “We need to think it through a little more thoroughly.”

In the ethics complaint filed last spring, the Ethics Board ruled that there was no violation because the member had declared a financial interest in a project and then recused himself.

* **

Here’s a look at development boards in both Minneapolis and St. Paul:

Minneapolis

Planning Commission: Serves as an advisory board to the City Council.
Members: 10
Terms: Two years with no limits.
Professionals are currently serving and are not prohibited from serving by the City Charter or by city ordinances.
The charter specifies that the commission include the mayor, one member of the School Board, one City Council member, one representative from Hennepin County and five citizens.
Decisions may be appealed to the City Council.

Historical Preservation Commission: Serves as an advisory board to the City Council.
Members: 10
Terms: Three years with no limits.
Professionals are currently serving on the board.
The membership should  include a representative of the mayor, at least two licensed architects, one real estate agent or appraiser, one resident or owner  of a landmark property in a historic district and one member of the Hennepin County Historical Society as specified in the Minneapolis Code of Ordinances.
No City Council members are currently serving on the commission.
Decisions may be appealed to the City Council.

Zoning Board of Adjustment: Hears and decides applications for zoning variations, appeals from orders by the zoning administrator and applications for non-conforming use.
Members: 9
Residency required but no list of required representatives.
Professionals are allowed to serve on the board.
No City Council members are currently on the board.
Decisions may be appealed to the City Council.

St. Paul

Planning Commission: Serves as an advisory body to the mayor and City Council.
Members: 21
Terms: Three years with a three-term limit.
Professionals are currently serving on the commission but are not required to be part of the board.
City Council members are not currently serving on the commission.
Decisions may be appealed to the City Council.

Heritage Preservation Commission: Serves as an advisory board to the mayor and City Council.
Members: 13
Terms: Three years with a three-term limit.
If available, the commission should include three licensed architects and one member appointed by the Ramsey County Historical Society.
Professionals are currently serving on the commission.
City Council members are not currently serving on the commission.
Decisions may be appealed to the City Council.

Board of Zoning Appeals: Holds public hearings on challenges of decisions by the zoning administrator and on requests for zoning variances.
Members: 9
Terms: Three years with a three-term limit.
Professionals are allowed to serve.  Residency is required.  City officials and employees are not allowed to serve.
The nine-member board should consist of six regular members, two alternates and one representative from the Planning Commission.
City Council Members are not currently serving on the board.
Decisions may be appealed to the City Council.

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Comments (1)

My 2¢

Karen’s lead to the 2nd part of the article, detailing the membership, etc., of the various boards and commissions, is important. She refers to them, correctly, as “development boards.” My experience on planning commissions in two different Colorado cities, was that they are only rarely involved in actual “community planning.” I was also the zoning board of appeals “officer” in one city that decided, for whatever reasons, not to put that responsibility in the hands of a committee.

By “community planning” I mean a group of citizens actively considering questions about how they think the city should function, look, “feel,” if you will, a generation down the road. Planning commissioners are generally not planning professionals, though I know one very capable woman in Colorado who was a planning commissioner in one community while working as a professional planner in another community. She is very much the exception.

In too many instances, planning commissioners are people whose livelihoods come either from something construction-related or from real estate development. I know little about how St. Paul operates, since I live in Minneapolis, and am relatively new to the state, but I don’t think Minneapolis is an exception to the general notion that the possibilities for conflicts of interest are virtually endless when board members make their living in construction and/or development industries, and it’s a major flaw in the civic process of most cities/entities that have planning commissions.

A related, but equally important issue is the legal status of whatever community plans DO exist.

There are states in which community plans are “enforceable,” and carry the status and weight of law. That gives planning commissions quite a bit more authority, makes variances to most development-related ordinances far less common, and essentially forces both developers and community members to pay quite a bit more attention to community plans for their city or region. Colorado is not one of those states, nor does Minnesota appear to be. Where community plans are not “enforceable,” development-related boards or commissions are essentially “advisory,” which means that, in practice, City Councils can ignore whatever recommendations come to them from those boards and commissions if they so choose. Sometimes, they do just that.

The value of “professional expertise” on a planning commission is, I think, highly overrated. My experience was that having non-professionals – that is, people whose livelihoods came from something not construction or development-related – on a planning commission was generally a good thing. While it’s helpful, even necessary, to have some understanding and familiarity with construction terms and processes, it’s not required that a commissioner be “in” the construction industry, or “in” real estate development, to make reasoned judgments about whether or not a particular project meets the relevant standards, including whatever long-term “vision” exists for the city. Cities have, or ought to have, professional planners employed to make sure that development proposals follow the rules and meet the standards set by the city.

The cities I served as a planning commissioner in Colorado had very strict policies regarding conflicts of interest that ensured that the public could see the commission was not “in the pocket” of development interests. That perception, it seems to me, is crucial in establishing and maintaining public trust in the whole development and approval process. To that end, in the cities where I served as a planning commissioner, developers were generally NOT chosen to be members of the planning commission. Developers were sometimes members of the city council, which usually has the final say on development proposals, but the potential for allowing something ethically sleazy to get through the planning commission was far too obvious when commissioners were themselves developers.

An insistence that planning commissioners need to be from the industries they’re supposed to be overseeing has a negative effect on the diversity of planning commission members, whether along ethnic or gender lines. Planning commissions are often bastions of middle-aged white guys, with few, if any, minority or female members. Communities do not benefit from such an arrangement.

My personal biases? With one exception, I’d like to see the commissions Karen listed reduced to 9 members (zoning boards, curiously, already meet that standard). I’d prohibit City Council members (and the Mayor) from also being on a board or commission that was development-related. They're welcome to testify in a public hearing if they like, but not to be members of the commission. Finally, the conflict-of-interest rules in Minneapolis seem far too lenient to me, and ethnic and gender diversity on the planning commission ought to be encouraged.