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HomeMy WebLinkAboutS1-City Attorney JAMES F. PENMAN CITY ATTORNEY Entered lntt Record al ,/ / l;n"nr.iIlCmyDavCrns Mtg: I Of?/ () 2.- October 7, 2002 it.~ SI ~ , ~ a Item " ~_ /J.~ City Clarlc/CDC Secy City of San Barunlill Mr. Steven Russo, Chief Enforcement Division Fair Political Practices Commission 428 "J" Street, Suite 620 Sacramento, California 95814 RE: Certain Actions of Planning Commissioner James P. Morris on June 4, 2002; June 19,2002; August 20, 2002; and, September 17, 2002 Dear Mr. Russo: We write to advise you of certain actions by San Bernardino City Planning Commissioner James P. Morris, which, in our opinion, may have violated Government Code S 87100 ,on four separate occasions: 1. At the Planning Commission meeting on June 4, 2002, and again on June 18, 2002, Commissioner Morris discussed, deliberated and voted with the Commission on Agenda Item No.2, Development Permit III No. 02-01 and Variance No. 02-16, a request to construct 38 single-family homes, also known as the "Arrow Vista Project." At that time, Commissioner Morris' employer, the law firm of Best, Best and Krieger, advised and represented the property owner and the applicant, Century Crowell Communities, in purchasing the subject property and in negotiating a Disposition and Development Agreement with the City's Economic Development Agency. The Planning Commission approved the Development Permit with Commissioner Morris voting in favor of approval. 2. At the Planning Commission meeting on August 20, 2002, Commissioner Morris discussed with the Commission Agenda Item No.2, Tentative Tract Map No. 15407 (Subdivision No. 01-09), a request to subdivide 30.59 acres into 110 single-family residential lots. Commissioner Morris spoke in opposition to the project and HEled[RussoS.ltr) 300 NORTH "0" STREET. SAN BERNARDINO, CA 92418-0001 . (909) 384-5355. FAX (909) 384-5238 Mr. Steven Russo, Chief Enforcement Division Fair Political Practices Commission October 7,2002 Page 2 criticized the proposed size of the lots. At that time, Commissioner Morris' employer, the law firm of Best, Best and Krieger, advised and represented Century Homes, in making an offer to purchase the subject property described in said Tentative Tract Map No. 15407 and in negotiating a Disposition and Development Agreement with the City's Economic Development Agency. The Planning Commission voted to cOl}tinue this item to their meeting on September 17,2002, with Commissioner Morris voting in favor of the continuance. 3. At the Planning Commission meeting on September 17, 2002, Commissioner Morris initially abstained, citing a conflict of interest, from discussing and voting with the Commission on Agenda Item No.2, Tentative Tract Map No. 15407 (Subdivision No. 01-09). Michael Grant, an attorney with Best, Best and Krieger (Commissioner Morris' employer) spoke on behalf of Century Homes, the prospective buyer of said Tentative Tract Map property, in support of the project. During his presentation, Mr. Grant stated that his law firm has been general counsel for Century Homes for over twenty years. Prior to Mr. Grant's presentation, because Commissioner Morris disclosed that he had a conflict of interest, I advised the Commission to disregard any comments Commissioner Morris made at the August 20, 2002, Planning Commission meeting regarding this Tentative Tract Map. I also informed the Commission I had just learned that day that a similar conflict of interest situation occurred in June of 2002 regarding the Arrow Vista Project when Commissioner Morris voted to approve the Project while his employer advised and represented the property owner applicant. Commissioner Morris responded that he was not aware at the time when the Commission discussed the Arrow Vista Project or this Tentative Tract Map that his law firm was involved in negotiating transactions with the City on behalf of the applicant or an interested party. We note that Mr. Morris' firm is a large one, and it is not umeasonable to believe that he would not have known of all of the activities of all lawyers in the firm. After the Commission voted to approve this item, Commissioner Morris rejoined the Commission and made comments critical of this Tentative Tract Map stating that the design of this subdivision was not creative but "run of the mill." After I advised the Commission to disregard Commissioner Morris' comments regarding this Tentative Tract Map because he had a conflict of interest and because this Tract would return to the Commission for discretionary action at a future meeting HE/ed[RussoS.ltr] Me. Steven Russo, Chief Enforcement Division Fair Political Practices Commission October 7, 2002 Page 3 . to consider an application for a Development Permit, Commissioner Morris disagreed with my legal advice to the Commission and stated that his comments did not pose a conflict of interest. His position is difficult to understand since he, himself, declared he had a conflict on this item. According to his firm's website, Commissioner Morris is employed as an associate attorney (although our office has been told that he is actually a partner) with the law firm of Best, Best and Krieger at 3750 University Avenue, P.O. Box 1028, Riverside, California 92502. Commissioner Morris' areas of practice, also according to his firm's website at www.bbklaw.com. are Municipal Law, Public Agency and Special District Law, and Environmental Law and Natural Resources; he was admitted to the California Bar in 1996; he has a Masters Degree in Urban Planning from UCLA. Further, according to his firm's website, Mr. Morris specializes in representing public agencies in the areas of land use law, water and wastewater law, environmental law, and municipal law; and Mr. Morris is a Deputy City Attorney for the Cities of Corona and Claremont; he also teaches a course on land use law at the University of California, Riverside. Given all of these facts, we are of the opinion, and therefore concerned, that Commissioner Morris may have violated Government Code S 87100 on the four occasions described above. We are also concerned that Commissioner Morris' actions may have "mouse-trapped" the City of San Bernardino on September 17,2002, when the Planning Commission approved Tentative Tract Map No. 15407: if the Commission ignored Commissioner Morris' criticism of the project and approved it, then Commissioner Morris' employer's client attains their goal of project approval. If the Planning Commission had been swayed by Commissioner Mbrris' criticism of the project and denied the Tentative Tract Map, thell Commissioner Morris' employer could have benefitted by gaining work on an appeal to the Council. Commissioner Morris' employer's client would also benefit because Commissioner Morris created a record from which they could have based a lawsuit challenging the City's denial. Unfortunately, the problem may not have ended on September 17. Because this same project will requirefuture decisions to be made by the Planning Commission, Mr. Morris' actions and comments may have tainted the process and made this an on-going problem for the City. On future projects before the Planning Commission in which Commissioner Morris' employer represents or advises the applicant or an interested party, the Commissioners are on the horns of a dilemma. Even if Commissioner Morris abstains, the other Commissioners may vote to approve such a future project because of Commissioner Morris' employer's involvement. If the Commission votes to deny such a future project, the applicant or interested party can allege that the Commission voted to deny because the other members resented Mr. Morris' previous comments when he had a conflict of interest and therefore, should have abstained and remained silent. HEled[RussoS.ltrj Mr. Steven Russo, ChiefEnforcement"Division Fair Political Practices Commission October 7,.2002 Page 4 Since we have advised the Planning Commission, with Mr. Morris present, that a conflict of interest exists, and since he has chosen to ignore and repudiate our advice in front of other Planning Commissioners, we are apprehensive that additional violations of Government Code ~ 87100 may occur in the future which may jeopardize the Planning Commission's decisions. Also, Mr. Morris' vocal disagreement with our office's legal advice, in front of his fellow Commissioners, and on a project where he may have a conflict of interest, may cause Commissioners to ignore future legal advice on other conflict of interest issues. This could include advice that may involve conflicts of other Planning Commissioners who may decide that since Mr. Morris is ignoring conflict of interest warnings, they can do likewise. We refer this matter to the Fair Political Practices Commission hoping that your review of Mr. Morris' actions will clarify his role as a Planning Commissioner as opposed to his attending Commission meetings and speaking as an attorney, addressing matters of law, during meetings and in front of his fellow Commissioners. Copies of Planning Commission Agendas and Minutes are attached. We are in the process of transcribing audio tape recordings of the relevant ,portions of the above-referenced Planning Commission meetings. Please contact me if we can provide further information on this matter. Sincerely, ~ HENRY EMPENO, JR., Deputy City Attorney Attachments cc: Judith Valles, Mayor Council Members James F. Penman, City Attorney Rachel Clark, City Clerk HEled[RussoS.llr)