Supervisors’ possible conflicts of interest put brakes on stream rules

10/03/2013

Homeowners and environmentalists primed to once again pontificate on the long-debated expanded streamside ordinance were stymied on Tuesday when the meeting hit an unexpected snag, courtesy of a political fairness committee. Three of the county’s five supervisors have presumed conflicts of interest due to their places of residence, according to the Fair Political Practices Commission,  and may literally have to “draw straws” to resolve the issue. 

The discussion on Tuesday was set to focus on the proposed adoption of an interim ordinance further regulating development in streamside conservation areas, or SCA’s, for the San Geronimo Valley. On the agenda was whether the interim ordinance should be adopted for the entire county, along with a proposed “SCA Work Program,” a one-year process involving discussions between homeowners, environmentalists and government agencies that could inform future amendments to either county code or the Marin Countywide Plan.

But a surprise announcement from the county counsel, Steven Woodside, shelved the debate.

Earlier this year, Supervisor Steve Kinsey, whose San Geronimo Valley property lies 200 feet from an SCA boundary, asked the county’s legal team to investigate whether he might have a perceived conflict of interest in light of his home’s proximity to the expanded SCA. Such conflicts are under the purview of the state Fair Political Practices Commission, the product of a 1974 ballot initiative that paved the way for the Political Reform Act. The group regulates political disclosures and establishes ethics rules, including how to handle conflicts of interest for elected officials.

The legal department discovered that three of the five supervisors—Mr. Kinsey, Sleepy Hollow resident Katie Rice and Susan Adams, who lives near Marinwood—own property within 500 feet outside the edge of a stream conservation area. The Political Reform Act stipulates that property owned by government officials that is located within 500 feet of the boundaries of a government decision may create a conflict of interest because of potential  financial implications.

The county wrote to the fairness commission in May, requesting an assessment of the supervisors’ interest in the ordinance, which it described as “contain[ing] various new development restrictions—depending on the location of the property—on over three thousand parcels of real property.” 

The county argued that the supervisors’ financial interests could only be construed as “indirect,” based on a portion of the law that provides exceptions for decisions that amend land use regulations that apply to all properties in a zoning category. 

Concerns that home values within the protection area would plummet due to new regulations have been voiced repeatedly, but Mr. Woodside said the county could think of no ways in which supervisors would personally be affected by the expanded ordinance.

But on Sept. 20, the fairness commission responded that in its estimation, the three supervisors indeed have a direct interest. And if there is a conflict of interest, the commission automatically presumes there could be a monetary effect on the officials, though their letter did not specifically say what that effect could be.

However, it appears that there is miscommunication between the county and the commission, which could be influencing the commission’s understanding. Mr. Woodside said the ordinance applies uniformly, but the fairness commission told the Light in an email that its response assumed that the ordinance could apply differently to properties within the conservation area.

Regardless, the county still believes there is no conflict. “We thought, and to this day still believe, that you all fall within this exemption,” Mr. Woodside told the board, but the fact that the committee disagrees, he went on, “leaves you in a quandary.”

The letter from the commission is not the final word on the matter. The presumption of material impacts can be rebutted, and the county will now respond and attempt to get a more definitive answer before the next scheduled SCA meeting on Oct. 29. If the county does not obtain a firm answer by the time the agenda is posted, typically the Thursday before the meeting, then the SCA discussion will be postponed. 

If the commission ultimately rules that the supervisors have direct conflicts of interest and could stand to benefit financially, Mr. Woodside said with a chuckle, the three supervisors will draw straws and the “lucky one” will be able to participate with his or her unaffected colleagues—but those three deciders would need to vote unanimously to pass an ordinance. 

It is an approach that goes back to a historic “rule of necessity,” Mr. Woodside told the Light, so that government can continue despite potential conflicts. So, he added pointedly, a complication “doesn’t mean that government comes to a halt.”

No one was warned before the mid-morning meeting convened that the discussion would be postponed, as evidenced by a room full of longstanding parties to the streamside conservation debate, including advocates of anadromous fish and representatives of homeowner groups.

“I’m shocked. What can you say?” said Barbara Salzman, president of the Marin Audubon Society. “People have a right to live where they want to live.” Ms. Salzman expressed skepticism at the convoluted manner in which three supervisors may have to coordinate their votes. “That doesn’t seem fair.”

Peggy Sheneman, a member of the San Geronimo Valley Stewards, said she was also skeptical of the turn of events. “I find it very disturbing that we may not have this voted on by all five supervisors,” she said. 

As for the drawing straws aspect, she said, “If I were a California historian, I might find it interesting, but as a citizen it’s quite alarming.”