LAUREN MEISTER: Why ethics matter in local land use decisions

Land use decisions can contribute to contention between community members and public administrators. In the City of West Hollywood, there is a clear perception by many that developers have greater access to public administrators than the general public. Developers and their lobbyists are known to have private meetings with city planners and the city manager, as well as planning commissioners and councilmembers in advance of public hearings. Moreover, developers have direct access to the company that is hired to conduct the environmental impact report for their projects; the public does not. Historically, land use lobbyists have been known to run election campaigns for councilmembers, and both developers and lobbyists contribute generously to local council campaigns. Whereas planning commissioners and city councilmembers, as review authorities and thus decision makers, are required at a public hearing to disclose any conversations had with stakeholders, city staff and the city manager are not.

In land use matters, city planners solicit comments from internal staff members from other divisions and then write the published staff reports. Staff reports include recommendations and, generally, staff has a point of view – rarely do they take a neutral position. For a city manager, general oversight is expected alongside considering additional goals of keeping the city solvent and trying to satisfy council majority (Johnson et al., 2017).

It is not surprising, then, that the unchecked and non-transparent access of public administrators are a source of anxiety and suspicion, if not outright mistrust, particularly, when it comes to land use decisions. Obviously, there is a lot at stake – a developer’s investment, a city’s revenue base, tenant or resident interests, a neighborhood’s quality of life. As Lauria and Long explain in their 2017 article, “Planning Experience and Planners’ Ethics,” planners have to deal with competing interests, such as city management, appointed and elected officials, developers, neighborhood advocates, community activists, and so on. Planning decisions will impact some positively and others negatively, posing various ethical challenges.

Local But Not Localized

The City of West Hollywood is not the only local government to face challenges related to ethics and land use. Headlines across the country (including cases of bribery, extortion, conspiracy, defrauding the public, and questionable campaign contributions) highlight various types of cases involving planning boards or local legislative bodies and indicate the demonstrable need for clear ethics rules and standards, specifically, in the context of land use (Salkin, 2011). Oftentimes, ethical misconduct leads to civil cases, misdemeanor penalties, or removal from office; however, conflicts of interest and self-dealing that lead to corrupt behavior can also result in criminal liability.

Who Is Watching the Henhouse?

In the State of California, the California Fair Political Practices Commission (FPPC) is the body that administers governmental ethics laws. This independent, non-partisan commission is responsible for implementing the Political Reform Act, which regulates the ethical conduct of elected and appointed officials, campaigns, and lobbyists (FPPC, 2022). The intention of the law is to make government more accountable and transparent. The purview of the FPPC extends from campaign finance to financial conflicts of interest, lobbyist registration and reporting, political mass mailings paid for by the public, and gifts. However, there are two issues: one, it assumes that people are reporting as required and, two, it assumes conflicts of interest are financially-based. Clearly, conflicts of interest can extend beyond reportable economic factors. Influence peddling, information peddling, bribery, outside or future employment, and dealings with relatives are not actions that would likely be reported. Conflicts of interest can also result simply by having access to resources (such as private databases, special invitations, or inside information) that one would not normally have under other circumstances. For example, a developer can help a public official by making introductions to influential people that they may not have had access to previously. Through their employment situation, some may have access to specific issue-driven contact lists. Unfortunately, there is no reporting mechanism for these type of scenarios. Because of gaps at the state regulatory level, it is imperative that local jurisdictions have a clear code of ethics or localized code of conduct (for decision makers and staff) that address ethics-related situations not addressed by the FPPC. And these codes should be accompanied by substantive consequences for those who do not follow them.

Ethical Analysis

Real or perceived, untainted planning analyses and land use decision-making can be challenging for local jurisdictions due to ethics issues. Fairness, equivalent access, and transparency must be the guide, and eliminating insider dealings and conflicts of interest, the result. The City of West Hollywood relies heavily on FPPC filings to foster transparency and address conflict of interest issues. Required filings for decision makers include Statement of Economic Interests (Form 700), Payment to Agency Report (Form 801), Ceremonial Role Events and Ticket/Pass Distributions (Form 802), Behested Payment Report (Form 803), Agency Report of Public Official Appointments (Form 806), and Committee Campaign Finance Report (Form 460). The City also has its own Lobbyist Registration form. While all of these forms entail extensive reporting, completeness and accuracy of reports filed may depend on the filer’s sense of ethics. It should also be noted that, for the most part, it takes a complaint to the FPPC or to the city attorney for punitive action to be taken regarding a filing.

The City’s Code of Conduct lays out a number of policies and rules regarding what is expected of public officials in terms of acceptable behavior. However, this Code focuses more on officials’ general roles and responsibilities, not, specifically, on conduct or behaviors related to land use and planning. For instance, it stresses that public officials must treat employees and the public with respect; they cannot ask a city employee to work on non-city business; and they should avoid the appearance of impropriety in the performance of their official duties. They also must disclose any private meetings with applicants or their representatives prior to public hearings

related to land use matters. Yet, violation of the City’s Code of Conduct does not lead to penalties or legal action. The code is intended to be corrective and it does not address real consequences.

Opportunities and Recommendations

Ethics must become a central part of local land use and planning decisions. Like so many other aspects of the built environment, the City of West Hollywood has the opportunity to become a true leader in this arena and take on, directly, concerns regarding access, transparency, and conflicts of interest.

With respect to equity in access to staff, one recommendation is that as soon as a project application is submitted, the location should be immediately mapped in the city’s information system and an electronic notification sent to all those who have requested notification of activity in their neighborhood. If requested by residents, staff should make themselves available is the same way they now do for applicants for new development. Information included in the development application (such as contact information, the applicant’s name/company, the applicant’s representative, the existing condition of the property, what is allowed on the property based on the City’s zoning code, and the proposed use) should be shared as public information. Oftentimes, the only information shared is by the applicant at a developer-arranged neighborhood meeting, where staff has no oversight over the quality or accuracy of the information shared or not shared. As the process moves forward, and applicants make land use programming or design changes and submit revised project narratives, such documents should be posted in a public forum to ensure greater transparency and allow neighbors to follow the progress.

With respect to the environmental review (CEQA), the City should not only choose the company that conducts the EIR but, also, function as the sole contact. There should be no communication between the project applicant and the EIR company. In addition, because the City does not always use the same company for every project, a standardized template for EIR reporting would be very beneficial. The company must remain neutral and purely objective and analytical in their review of the project – just provide the study results and detail considerations, concerns, potential impacts, beneficial alternatives to consider or possible mitigations when alternatives are unable to be identified. There should be no commentary regarding how the project meets or does not meet the goals of the City’s General Plan. This should be up to planning staff to assess as part of their evaluations and for the decision-makers to ultimately decide.

To address transparency, it is recommended that planners, city management, and public officials maintain a written account of all meetings so that there is a public record. Written or emailed correspondence should be printed out and placed in the project file and email correspondence should be kept on the server for at least 90 days. On land use issues, ex parte meetings between public officials and applicants or other stakeholders should be discouraged.

However, if unavoidable, city hall staff should be required to be in attendance.

Another recommendation is that there be a simple staff disclosure in the staff report regarding the number of submittals and contacts (meetings, phone calls, substantive land use communications) that have occurred with both the applicants and community members or groups during the review process so the public can follow the extent of the interaction.

Additionally, although the municipal code requires all lobbyists to be registered with the City, registered lobbyists should be listed on the City’s website, along with their contact information and the names of the clients they are representing. All campaign contributions to sitting city councilmembers should be listed as part of this registration and updated annually. Residents should not have to search through campaign finance statements – contributions by developers and their representatives should be listed on the City’s website. And if a city councilmember has received a more recent campaign contribution from a lobbyist, developer, or developer’s representative which is not noted on the City’s website, the amount should be disclosed during the disclosure portion of the public hearing.

Regarding conflicts of interest, registered lobbyists in the city should not be allowed to manage or be otherwise actively involved in political campaigns for City Council seats. The City should expand its code of conduct to address issues and identify consequences for topics such as access to people or resources, bribery, extortion, conspiracy, defrauding the public, self-dealing, and campaign contributions in exchange for land use approvals. The city attorney should be required to investigate any reasonable concern regarding a potential conflict of interest or appearance of impropriety, whether the allegation relates to the city manager, staff, commissioner, or elected official, and publish a result of such investigation. Lastly, prior to registering, developers, lobbyists, and contractors should be provided a code of ethics so that they know about campaign limitations and the behavior that is expected of them in the City of West Hollywood.

Concluding Thoughts

Not enough focus is given to fundamental importance of ethics in the context of local planning and land use decisions. Especially in a small city like the City of West Hollywood, zoning, planning, and land use decisions can have major consequences for a number of stakeholders, including impacts from construction, general accessibility, changes to neighborhood livability, ease of mobility options, environmental factors, climate action related issues, and the functioning of the city itself. In order to ensure ethical outcomes, the City must foster creation of a transparent and consistent ethical organizational culture with predictable internal processes and protocols and sufficient external controls to reinforce ethical behavior and deter unethical behavior. As wisely concluded in T. L. Cooper’s book, “The Responsible Administrator” (2012), “designing an organizational environment that is both supportive of expected ethical conduct and preserves space for ethical autonomy is what an administrator [and cities] ought to see as the goal” (p. 128).

References

California Fair Political Practices Commission. (2022). About the FPPC. https://www.fppc.ca.gov/the-law.html

Cooper, T. L. (2012). The responsible administrator (6th ed.). Wiley Professional Development (P&T). [Vital source.]

Johnson, B. J., Peck, M. K., & Preston, S. A. (2017). City managers have ethics too? Comparing planning and city management codes of ethics. Journal of the American Planning Association, 83(2), 183–201.

Lauria, M., & Long, M. (2017). Planning experience and planners’ ethics. Journal of the American Planning Association, 83(2), 202–220.

Salkin, P. E. (2011). Failure to articulate clear ethics rules and standards at the local level continues to haunt local land use decision makers. Urban Lawyer, 43(3), 757–773.