New ethics question raised in Carbondale conflict debate
CARBONDALE – No sooner had Carbondale Trustee John Foulkrod agreed to step away from the Town Board’s now year-long deliberations on the Village at Crystal River development proposal than a new ethics question was raised.
Local attorney Eric Gross argued at the board’s Tuesday night meeting that Trustee Frosty Merriott’s participation in a regular Wednesday morning talk show on public radio station KDNK, called “the trustees’ report,” violates rules on engaging in conversations outside the formal public hearing process.
Gross represents Rich Schierburg and his Crystal River Marketplace LLC, the developer of the proposed 24-acre Village at Crystal River (VCR) mixed-use commercial project on Highway 133.
The radio show is intended to be an objective report of what happened at the previous night’s trustee meeting, Gross acknowledged.
But it often leads to a broader on-air discussion of issues, including opinion and perceptions about other trustee’s positions, he said.
“We find it completely unacceptable, and we object to it formally,” Gross advised the Town Board, adding he believes Merriott should disclose those conversations and perhaps also recuse himself from discussions and voting on the Village proposal.
Because land-use hearings are a quasi-judicial proceeding, Gross said decision makers should not have so-called “ex parte” conversations – held outside formal trustee meetings – that could taint the process.
“Ex parte contact is looked upon by the courts as problematic, and we believe this to be a serious breach of due process to the applicant,” Gross said.
His comments came after Foulkrod voluntarily recused himself from the VCR hearing, bowing to public pressure over a conflict of interest question.
“I will recuse myself due to this perceived conflict of interest,” Foulkrod said at the start of what had been a scheduled discussion about his situation.
When the VCR public hearing opened in February 2010, Foulkrod disclosed that he has a business relationship with Briston Peterson, who is separately involved with the VCR development. The question has since been raised by members of the public and some of his fellow trustees whether that constitutes a conflict.
At the time it was first brought up, Foulkrod’s relationship was determined not to be a direct conflict of interest, according to state law. The new question was whether it violated a Carbondale Home Rule Charter provision related to indirect conflicts of interest.
Foulkrod said he personally didn’t view it as such, but agreed to recuse himself.
“To the members of this community who have voted for me and trusted me to make decisions that will affect their town and its future, I apologize that I will no longer be a part of this process,” Foulkrod said.
Regarding the new ethics question posed by Gross, town attorney Mark Hamilton said he agrees that conversations by trustees outside the formal public hearing can be a problem.
“It’s a valid question,” Hamilton said. “There is the potential for a legal claim of violation of due process.”
In the case of Merriott’s radio discussions, it would depend on what was discussed and if that prejudiced his opinion or influenced other trustees in any way, Hamilton said.
If those conversations could be entered into the formal record, it could resolve the issue, he said.
In a followup interview Wednesday, Merriott said he is careful in the radio reports not to bring up anything that wasn’t discussed at the previous night’s meeting.
“It’s pretty common knowledge around town that, the day after a trustees meeting, we talk on the radio about whatever went on at the meeting the night before,” he said. “It’s more informational, with a little banter.”
He said he doesn’t view the radio reports as being outside the public process.
“It’s public radio, so to me it’s already disclosed,” he said.
Trustees continued the Village public hearing until March 22, when the new question regarding Merriott will be discussed.
“I’m a firm believer in process, and in people having their say,” Mayor Stacey Bernot said. “I applaud John [Foulkrod] for stepping aside, but that was a question of a substantial indirect conflict of interest. This is a very different issue.
“We have to be fair to the process, and to sweep this under the rug would not do it any justice,” she said, regarding the new challenge to Merriott’s participation.
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