Counsel: Commission, housing board no conflict for Ireland |

Counsel: Commission, housing board no conflict for Ireland

Allyn Harvey

County Commissioner Mick Ireland has been given the OK by an independent counsel to deliberate and vote on an application to build affordable housing on the east end of Aspen.

Attorney Linda Donnelly found no basis in the allegation that Ireland’s capacity as a member of the housing board conflicts with his duties as a county commissioner, even when he’s considering applications from the Aspen/Pitkin County Housing Authority.

“It is my opinion that no factors have been alleged or demonstrated that would require Mr. Ireland to disqualify himself from consideration of the [Housing] Authority’s proposal,” Donnelly wrote in her four-page decision.

From 1980 to 1999, Donnelly managed a 13-attorney office for the Colorado Supreme Court that investigated and prosecuted lawyers for disciplinary violations. She was contacted by the county attorney’s office following attorney J. Bart Johnson’s request that the county consider Ireland’s ability to hear an application fairly.

Johnson had suggested at the county commissioner’s June 29 meeting that Ireland’s role on the housing board – with its mission to build affordable housing – conflicted with his duty as a county commissioner to fairly consider the housing authority applications.

Johnson represents two neighbors in their effort to kill or scale back the housing authority’s plan to build 17 units of affordable housing at the Stillwater Ranch subdivision. He was out of town and could not be reached for comment.

This latest assertion that an elected official who sits on the board of another public agency should not decide matters affecting that agency is the second leveled at a county commissioner this year. In January, attorney Paul Taddune claimed that Commissioner Leslie Lamont’s position on the board of directors at RFTA, the organization that runs buses up and down the valley, made it impossible for her to fairly decide some land-use issues.

Front Range attorney Bill Gray, acting as an independent counsel, rejected Taddune’s argument, but that didn’t stop Johnson from raising the issue again, first at the meeting and then in a follow-up letter to Ireland.

Citing a case by the Colorado Court of Appeals, Johnson wrote “the presumption of impartiality enjoyed by a quasi-judicial official is lost when the official has `a personal, financial or official stake in the decision evidencing a conflict of interest.'” Ireland’s position on the housing board gave him an “official stake” in the outcome of Stillwater, Johnson argued.

He then cited a case in a suburb of Seattle where the Washington Supreme Court found that a planning commissioner for the city of Bothell who also sat on the board at the local chamber of commerce should have stepped aside when an application to build a large mall came before the planning commission.

“In City of Bothell, the court found an impermissible appearance of partiality even though Ms. Lovelace was merely a member of the planning commission, which was not even the decision-making tribunal,” Johnson wrote in his letter to Ireland. “In the Stillwater case, the Housing Authority is the applicant – the ultimate proponent – and you sit as a member of the actual decision-maker. If a problematic appearance of partiality existed in City of Bothell, it undoubtedly must be said to exist in the Stillwater matter.”

Donnelly noted that Ireland’s job as county commissioner is the only reason he sits on the housing board, and cited several U.S. Supreme Court decisions to back her finding that no conflict of interest exists in such cases. She also pointed out that Johnson had not given a complete accounting of the facts behind one of the cases he used to bolster his claim that Ireland should not decide the Stillwater case.

Much of Donnelly’s opinion rests on a 1976 case before the U.S. Supreme Court involving a dispute between a school board and teachers. The court found that the school board had the authority to fire the teachers after contract negotiations had broken down.

Donnelly notes that the court found that the board members had no “official” stake in the outcome of the negotiations or the subsequent decision to fire the teachers. She points out that the justices referred to a previous decision to clarify the meaning of “official stake.” In that case, the court found that a village mayor who acted as judge in local traffic cases had an official stake in the outcome of those cases because the more fines that were levied, the larger the village budget.

“No disqualifying conflict has been established by Mr. Johnson,” Donnelly wrote.

Donnelly also notes that Johnson failed to point out in the case involving a planning commissioners that the Washington Supreme Court had found that the those commissioners in question, unlike Ireland, had a “direct financial interest in the outcome of the project being considered.”

Finally, Donnelly cites a Colorado Supreme Court decision that found that a public official who has already made his opinions on an application known doesn’t necessarily have to disqualify himself from voting on the matter.

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