Two separate potential violations of state and local conflict-of-interest laws brought unexpected drama to the August meeting of the city's Historical Resources Board and cast a harsh light on business-as-usual in a city struggling to shed its corrupt image.
During the Aug. 25 meeting, Assistant City Attorney Karen Heumann advised the board that two of its members, Jerry Schaefer and David Marshall, may have violated the city's ethics ordinance and the California Political Reform Act by submitting reports containing their names to the board on behalf of clients with business before the board.
Composed of 15 appointed volunteer experts, the Historical Resources Board is tasked with identifying, protecting and preserving the city's historical sites and advising the mayor and City Council on related matters. Because of their professional expertise in a niche field, Historical Resources Board members-like many members of the city's other boards and commissions-or the companies they work for, are often hired as consultants on projects that come before the board.
Although Schaefer and Marshall recused themselves from voting on the matters-projects involving Hamilton Apartments at 941 11th Avenue and a home at 706 Manhattan Court, respectively-Heumann said that inclusion of their names in those reports amounted to advocacy for a particular outcome and they had therefore failed to effectively remove themselves from the discussion of those matters as required by law.
Heumann said the reports, distributed to the board members prior to the meeting, "could be considered the same as direct testimony or direct communication," which is prohibited by law and that "the documents were submitted for the purpose of influencing board members in their decision."
She said a board member's recusal from the vote but not the related discussion was similar to that same board member "holding up a sign that says "Vote no,'" noting that other board members may be unfairly influenced by the position of their colleague.
According to an advisory letter issued by the Ethics Commission in 2003, "As a basic rule, a commission member is not permitted to appear before his or her own commission for the purpose of influencing that commission on behalf of a client."
The potential violations could mean legal trouble for Schaefer and Marshall and have put the related projects in limbo.
At the meeting, board Chairman Lloyd Schwartz pulled the matters from the agenda; advised Marshall and Schafer to contact the city attorney, their own legal counsel or the city's Ethics Commission for guidance; directed board members to return all written materials related to the projects; and asked that board review of the properties be rescheduled.
Huemann later told CityBeat the matters would be reconsidered in an attempt to "unring a bell" but said she wasn't sure whether the law had already been broken.
Vonn Marie May, a former chair of the Historical Resources Board, said the situation is only symptomatic of a larger problem having to do with the individuals appointed to city boards and commissions.
"The Historical Resources Board, the Planning Commission-all of those boards have people that are in constant conflict and are recusing themselves right and left," she said. "That's a problem. How can a board govern if you put people on there that, [on] the items that are coming forward, they're always involved in?
"They need to get people who want to objectively and helpfully serve their community and not just get on there to network. It shouldn't be a political thing-it should just be good public service."
Ian Trowbridge, a City Hall watchdog and District 2 City Council candidate, issued a statement calling for the ouster of all individuals appointed to a board or commission by former mayor Dick Murphy. Both Schaefer and Marshall, who didn't return CityBeat's calls, are Murphy appointees.
"They took money to influence the vote of the very city board they sat on," Trowbridge wrote. "Enough is enough!"
The implications of the apparent conflict of interest could reach beyond the two related projects. During the meeting, board member Donald Harrison asked if some of the board's previous decisions should be reviewed for similar violations.
Replied Schwartz: "I have served on this board for slightly over four years, and I can attest to the fact that this, in my experience, including almost two years as chair, is my first experience where we had board members submit and author and sign advocacy reports...."It's unclear whether such a review will take place, but Everett Delano, an attorney who specializes in land-use issues and represented one of the parties in the Manhattan Court project, said if similar violations are found, they could void the board's previous decisions.