Should elected officials have to recuse themselves just for having an opinion about a project they are voting on?
Last week, Planning Commission Bill Wolpert announced that he would not be voting on Deer Creek’s architectural and site review plans.
A February letter Wolpert had written to city council opposing the project and arguing that it was not pedestrian-friendly and not the type of development Petaluma needed.
Read Wolpert's letter in the attachments on the right
Sitting out the vote was not what Wolpert, an architect specializing in “green” projects, had planned on doing. But a week before the vote, Wolpert received an email for Assitant City Attorney Leslie Thompsen urging him to recuse himself because of his “apparent conflict of interest.”
“Because you were a seated Commissioner commenting on a project actively before the Commission at the time of the letter, and because the letter goes beyond the issues relevant to the EIR which was at issue at the time to include broad-ranging criticism of the project, you may wish to recuse yourself from the SPAR hearing,” Thompsen wrote, adding that Wolpert’s criticism of the project (chiefly that it did not comply with Petaluma’s General Plan), would not be answered in design review.
See Thomsen's letter in the attachments
“While this is a decision for you to make, the February 22 letter does appear to be a more focused and specific expression of pre-formed opinion than were the actions in the Nasha case…which was held by a court to create a conflict of interest,” Thompsen wrote in the letter.
The fear was that Wolpert’s critical letter would create a liability for the city if the project was denied, opening up Petaluma to potential litigation by Merlone Geier, the developer of Deer Creek, or other companies seeking approvals.
The case Thompsen was invoking was a 2004 decision to overturn a denial of a compliance permit for a Los Angeles housing project after it became known that one of the commissioners had written an article critical of the development in a neighborhood newsletter.
A California Court of Appeals found that this constituted “demonstrated bias."
But is it fair?
Wolpert, who was appointed to Planning Commission in 2011, is still not sure.
"It really looks like there is little room for disagreement, so where is the opportunity to discuss the overall plan and how the buildings are arranged?" he told Petaluma Patch.
“What they are doing is making it easier for developers to come in and misinterpret our General Plan…If developers don’t think they are going face tough challenges by the Planning Commission, why would they even try to do a nicer project? We will get the minimum effort every time. We have to ask for what we want and be clear about what we don’t want.”
What do you think? Was Wolpert right to recuse himself? Or should he have participated in the discussion and vote about the Deer Creek shopping center? And what do you think of the city "strongly encouraging" commissioners and other elected officials to recuse themselves after having expressed an opinion about an issue?