County denies conflict in Ireland’s dual role
The challenge to County Commissioner Mick Ireland’s impartiality on the Stillwater Ranch affordable housing project advanced yesterday, when the attorney who raised the issue backed his assertions up.
In a June 29 letter addressed to Ireland, attorney Bart Johnson said that because the commissioner sits on the Aspen-Pitkin County Housing Authority Board, he may have an “official” stake in the outcome of the Stillwater Ranch proposal, and thus be disqualified from voting on the application as a county commissioner.
“Our concern is that a member of the Board of County Commissioners – and it could be any commissioner, not just you – is also a member of the board of directors of the applicant in this case,” the letter says.
The letter points out that if the applicant were a private development firm, and Ireland sat on its board of directors, it would be inappropriate for him to decide the matter as a county commissioner. “I do not know why this situation should be treated any differently,” Johnson wrote.
Johnson represents Vernon Friesenhahn and Stewart and Linda Resnick in their effort to scale back the size of Stillwater Ranch, a 17-unit project proposed for four acres of county-owned land just east of Aspen. He first raised his concerns at a public hearing on Wednesday.
The Housing Authority’s plan to build seven buildings with three- and one-bedroom units met little organized opposition at Wednesday’s public hearing, when Johnson brought the question of impartiality up.
Ireland reacted strongly to the suggestion that he may somehow be violating the public trust, and requested examples of statutory or case law backing that contention. Johnson’s letter did just that, citing decisions by the Colorado Court of Appeals and the Washington state Supreme Court.
Although neither Ireland nor County Attorney John Ely had read the letter when contacted for comment, both were doubtful that Ireland would need to recuse himself from the vote.
Ireland pointed out that he was elected partly on the promise to build more affordable housing, so it doesn’t make sense that he wouldn’t be allowed to vote on an issue he promised the voters he’d address. Ely noted Ireland’s seat on the Housing Board is connected to his duties as a county commissioner.
“One responsibility of a county commissioner is to get appointed to boards the county has an interest in. If a commissioner is required to serve on a board, then that certainly can’t exclude them from making decisions as a county commissioner,” Ely said.
Both also noted that a similar challenge to Commissioner Leslie Lamont was rejected by an independent counsel earlier this year. In that challenge, which was connected to the county’s development moratorium, attorney Paul Taddune argued that Lamont should recuse herself from some land-use decisions because she sits on the board of the Roaring Fork Transit Agency.
The independent counsel, Front Range attorney Bill Gray, found no conflict of interest between Lamont’s position as a RFTA board member and as a county commissioner.
“This question has already been asked and answered,” Ireland said. “But if it’s necessary, I guess we’ll ask it and answer it again.”
Even if they are successful in removing Ireland from the decision, the 4-0 vote by the commissioners approving Stillwater on first reading indicates Johnson and his clients face an uphill battle in their effort to scale the project back.
Nevertheless, Johnson’s letter cites a 1984 decision in the state Court of Appeals that “declared that 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 … .’ “
He continues, “I believe that under any reasonable definition of the term `official,’ your position on the board of directors of the Housing Authority must be seen as giving you an official stake in the decision being made by the county commissioners.”
Johnson then uses the Washington state case as an example of where a court agreed a person who sits on separate boards may at times have to recuse herself.
In that case, a woman serving on a city’s planning commission and as a board member of the area chamber of commerce, voted, as a planning commissioner, to recommend rezoning and approval of a development application for a new shopping mall. The chamber had supported the project, and the state Supreme Court ruled that the planning commissioner should have stepped down from the deliberations.
“She was aware of the Chamber’s support for the project; from the point of view of a disinterested observer, her position on its board of directors might well suggest entangling influences impairing her ability to be impartial,” the court wrote.
In an interview yesterday, Johnson said he hadn’t really thought about how his clients should respond if Ireland remains on the board during Stillwater deliberations. “My job on behalf of my clients is to identify a concern. Now it’s up to them to decide what to do with it,” he said.
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