Carbondale trustee conflict question remains unresolved

CARBONDALE – An alleged conflict of interest involving a member of the Carbondale Board of Trustees could prove to be a test case for a provision in the town’s home rule charter that broadly defines the issue.

After more than two hours of board discussion and input from dozens of citizens who packed the room for the Tuesday night town board meeting, the question of whether Trustee John Foulkrod has a conflict in voting on the proposed Village at Crystal River development remains unresolved.

A motion by Trustee Frosty Merriott for the board to ask Foulkrod to recuse himself from further participation in the ongoing public hearing failed on a 3-3 vote.

But Mayor Stacey Bernot and Trustee Elizabeth Murphy, who both voted against the motion, asked for clarification from town attorney Mark Hamilton on a section of the home rule charter that refers to “indirect” conflicts of interest by elected officials.

That provision states: “Neither the mayor nor any trustee shall vote or participate in discussion or deliberation on any question in which he or she has a substantial personal or financial interest, direct or indirect …”

Foulkrod reiterated Tuesday that some of his business partners in the real estate holding company C’dale LLC are also investors in the Village at Crystal River project, a mixed commercial and residential development proposed for 24 acres along Highway 133.

C’dale LLC is the would-be developer of the previously proposed Overlook Neighborhood development, on what’s now a light industrial site in downtown Carbondale.

The application for the Overlook expired last spring after the proponents decided not to proceed. But some of the same investors who were involved in that project with Foulkrod are still associated with the Village at Crystal River project.

Foulkrod first disclosed the relationship when trustees opened the VCR public hearing a year ago, on Feb. 9, 2010. However, he said he did not have any financial interest in the project and could consider the proposal in an unbiased manner.

Town attorney Hamilton advised then, and reiterated Tuesday, that the relationship does not constitute a direct conflict of interest according to state laws, as defined by financial gain. Given that advice, Foulkrod was allowed to take part in the hearings without any objections from other board members.

Now, a full year later, numerous members of the public, along with at least three town board members, think Foulkrod should step away from the proceedings.

After taking public comments and receiving letters from citizens asking Foulkrod to recuse himself, including one letter with more than 110 signatures, Bernot said the conflict question is not closed.

She asked Hamilton to do some research to see if there’s any case law related to “indirect” conflicts of interest.

“It’s not clear to me what ‘direct versus indirect’ means,” Bernot said, suggesting she might change her mind given new information.

Hamilton said he’d look for some legal precedents in other jurisdictions. But he said the interpretation of conflicts under the town charter is ultimately left to a majority opinion of the board.

According to the charter provision, “… the remaining trustees may determine by a majority vote whether said interest does in fact constitute a conflict of interest. When such conflict of interest is established, the trustee affected shall not vote on the matter …”

Trustee Merriott said he felt Foulkrod’s situation was a clear conflict of interest, since his decision could affect his future business relationship with the common partners.

“If I were in this situation, I would find it particularly difficult to be objective and would have to step down,” he said.

However, Foulkrod stood his ground. Short of a board majority vote, he said he doesn’t intend to recuse himself on his own, and that it has become a political issue driven by opponents of the Village at Crystal River project.

“It would be simple for me to just recuse myself, but this is political,” Foulkrod said. “Most of these people who signed these letters would vote against this development. For me to recuse myself now is wrong.”

The board continued the matter until March 1, and also postponed the continued public hearing on the VCR project itself until then.

jstroud@postindependent.com