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To Recuse or Not Recuse That Is the Question

Planning Commissioner Bill Wolpert was hoping to weigh in on last week's discussion over the proposed Deer Creek shopping center on North McDowell. Instead he was "strongly encouraged" by city attorneys to sit out the vote. Why?

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.

The reason?

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?

Joan Cooper August 22, 2012 at 04:24 PM
I think a planning commissioner advising the CIty Council of his concerns about a project not meeting General Plan guidelines falls within his job description and duties. This is very different from writing a editorial or op ed which is directed to the public to sway public opinion. If COmmissioners cannot comment on any project or decision before they vote on it , for fear of potential litigation, then the developers have a lethal weapon against our representatives in public commissions and office. Expand this model to not allowing a Congressman to comment on his/her position on an issue before any vote and you have effectively silenced democracy.
Barry Bussewitz August 22, 2012 at 05:03 PM
The best I can tell from this is that Mr. Wolpert was doing an excellent job of serving the interests of Petaluma in full responsibility. Should he not communicate his best judgement to the very Council that appointed him? I was at the meeting when he recused himself and it seemed to me a damn shame — to the detriment of our community.
Steven Kirk August 22, 2012 at 05:07 PM
It seems Bill Wolpert was not only within bounds to submit his letter as a sitting member of the Planning Commission and to assume continuing rights to participate as a voting member, but I also applaud him for his deep consideration and openness in addressing the project during the findings phase of the commission's process. The letter from the Assistant City Attorney seems fundamentally misguided, and, as mentioned in a previous comment, very different from the 2004 decision cited by the assistant city attorney. Accepting this precedent would strongly diminish the strength (and value) of the Planning Commission. The public has a right to ensure that their representatives (in this case appointed to the Planning Commission) both question the appropriateness of developers' plans and to present honest opinion.
Sad situation August 22, 2012 at 05:57 PM
You have the progressives' 'efficiency grab' to thank for this. Sure, planning commissioners are supposed to say whether a project fits with the general plan - but the planning commission had already considered that. At the time of Wolpert's recusal, the question before them was in their "SPAR" role - site plan and architectural review. There was no General Plan-conformity question before them. If the two boards had remained separate, instead of being merged by David Glass and Co. in 2009, I'm sure each boardmember would have a clearer idea of their role and responsibility. As it stands now, the different processes bleed together over multiple meetings before the same people, even though the law requires separate considerations of different issues, and the same people who weigh heavy "big-picture" questions like General Plan conformity have to suddenly turn around and discuss detailed, technical issues like setback distances, landscaping options and such. If the PC was a separate board, as before, after it had done its job on land-use and General Plan Conformity, members would be free to publish their thoughts to the council or public, since their job had been done. Instead, it appears there is confusion - not 'efficiency' - over when the members have an 'active' project before them.
sadie August 22, 2012 at 06:38 PM
Thank God there are others on the commission who understand their purpose. They get to deliberate the issues presented to them not overreach into matters outside of the assigned duties. The commissioners have one vote each. They should not be lobbying the council. If anyone feels so strongly about an issue, they should be working with staff, the general plan administrator, and the city manager to be sure projects are in compliance. We do not need activists on our boards. We need volunteers that understand the duties, and limitations of their service.
Sheri Cardo August 22, 2012 at 07:14 PM
The situation where three planning commissioners recused themselves over the Target project for signing a petition prior to joining the commission (I believe) should be looked at, too. These are dangerous precedents and our community deserves to understand what the rules are and when it is necessary and when not to recuse, for the reasons so perfectly stated by Joan Cooper, Barry Bussewitz and Steven Kirk. As for the other comments, it's hard for me to give any credence to posts by individuals who are unwilling to provide their full name. Let's have the courage of our convictions. Thank you to Patch for exploring this troublesome issue.
Barry Bussewitz August 22, 2012 at 09:28 PM
I appreciate hearing the points of view of "Sad situation" and "sadie," yet I agree that being named and known is a more authoritative invitation to community dialogue than internet anonymity.
Dave Alden August 22, 2012 at 09:35 PM
From my reading of Ms. Thomsen's email, it appears that Mr. Wolpert was correct to recuse himself under the law and the judicial precedents. And what that tells me is that the law is foolish. As communities, we should be seeking people who have a passion for building better communities and who have demonstrated that passion with the commitment of their time and professional training. To then ask those people to bury those passions while judging the issues before them is nonsensical. It seems that perhaps Wolpert shouldn't have written the letter. But the real misstep on which he is being judged is having an opinion. And opinions based on training and long community involvement should never be outlawed. However, I know Bill and consider him a friend, so perhaps must recuse myself from this conversation.
Petaluma Seer August 23, 2012 at 12:48 AM
I think Ms. Thomsen goes too far. I do not think the Commissioner should have been advised to recuse himself. The question is, "Who is putting the bug in our city attorneys ears to continue to ask our sitting government officials to recuse themselves on such a narrow margin of question? Further, why is the ear bugger being so successfull with our attorneys? Don't these atttorneys work for on behalf of the city? I observe far too much caution coming from fear, on behalf of our attorneys. Our attorneys should stand strong without undue influence.
Doug Miller August 23, 2012 at 01:13 AM
An attorney's job is to make sure the city follows the law so the city doesn't get sued and lose the public's money in a lawsuit. (This site had a previous story quoting a Deer Creek opponent, bemoaning commissioners "listening to the city attorney" instead of voting their conscience or whatever the heck he thought they should do - what is it with development opponents and disdain for the rule of law??) Conspiracy theories about developers influencing a city attorney might be fun to bandy about as solace for being on the losing side of an issue, but think about it: the city's attorney is part of a major municipal law firm that didn't get to where it is by throwing out the law book whenever an applicant asks them to. The law may be bad, but as Dave Alden says, it has to be followed. Mr. Wolpert had numerous roles to fill on the planning commission, he wasn't done with them when he wrote his letter, and so he needs to recuse himself. I do think, if it isn't being done already, the city needs to reinforce when, and of what nature, commissioners and board members can make public statements regarding projects before them so this hopefully won't happen again.
David Keller August 23, 2012 at 03:10 AM
It seems as if Regency's and Merlone Geier's strategies of using threats or real "strategic lawsuits against public participation" (known in California as "SLAPP suits", and prohibited by law) has been endorsed by the city attorney's advice. Shutting up or shutting out a planning commissioner or city council member, from expressing their informed opinions about a proposed project or action is a clear detriment to democracy and good government. CEQA particularly, and land use law generally, requires an informed public and decisionmakers, prior to decisionmaking. Expressing an opinion to the council or planning commission regarding non-compliance of a project with our General Plan is a duty of our public servants - not a whimsical afterthought to be allowed when convenient. The use of the Nasha case here seems like an abuse of the law. If our city attorney were supportive of having an informed dialogue for decisionmakers, they would strongly defend the city, its council members and planning commissioners against the threats of lawsuit by aggressive builders like Regency and Merlone Geier, not shrink from that duty by silencing them.
Paul Andersen August 23, 2012 at 04:04 AM
The "City Attorney" is actually the law firm of Meyers-Nave. The City contracts with them to provide legal advice. The question is who was the driving force behind the email from "Assistant City Attorney" Leslie Thompson. My impression is that this didn't come out of nowhere. I think someone in the actual city government, be they in the City Manager's office or on the City Council forced this issue.

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