MADELINE ISLAND NEWS AND INFORMATION
Conflict of Interest
TOWN'S ATTORNEY FAUERBACH
"PLANNING COMMISSIONERS SHOULD HAVE ABSTAINED FROM VOTING"
Updated: October 10
Posted: October 8
A recommendation by the Town Plan Commission recently caught our attention.
At their September 17th meeting, the TPC approved a request for a C.S.M. for properties owned by Jim & Elizabeth Ryder which would allow them to change the lot lines of three contiguous properties of approximately 21 acres located at Big Bay Road and Snowplace Road; properties that they own and are now selling. The Ryder's requested that the lot lines of these properties, which run parallel to the road, be changed to run perpendicular to the road. The Ryder's currently have setback issues relating to a house and pole barn constructed on these properties.
The Town Plan Commission voted five to one for the change, with one abstention. (Click here for minutes of this meeting.)
What got our attention is that TPC Vice Chair Michael Childers and Lois Carlson voted "yes" on this issue, rather than abstaining. Michael Childers is a realtor for Island Shores Realty and is the agent involved in selling the property. Lois Carlson is the wife of Todd Carlson, owner of Island Shores Realty; a company previously owned by Jim Ryder. Ryder now works for Island Shores Realty as an agent. (Click here for the Island Shores Realty website.)
Town's attorney, Michael Fauerbach was contacted by Jennifer Croonborg, La Pointe Zoning Administrator who was unsure if the Town Board could proceed with their vote on the C.S.M. due to this apparent conflict of interest and solicited his opinion before the Town Board meeting where this C.S.M. was discussed.
In a letter sent to Croonborg on September 23, 2008, before the evening's Town Board meeting (where Jim Ryder took up nearly an hour of the Board's time), Fauerbach's response was that he believed that they had violated Sec. 19.59 (c) (1), and probably (2) of Wisconsin law.
Wisconsin Sec. 19.59 (c) and (d)
(c) Except as otherwise provided in par. (d), no local public official may:
1. Take any official action substantially affecting a matter in which the official, a member of his or her immediate family, or an organization with which the official is associated has a substantial financial interest.
2. Use his or her office or position in a way that produces or assists in the production of a substantial benefit, direct or indirect, for the official. one or more members of the official's immediate family either separately or together. or an organization with which the official is associated. (d) Paragraph (c) does not prohibit a local public official from taking any action concerning the lawful payment of salaries or employee benefits or reimbursement of actual and necessary expenses, or prohibit a local public official from taking official action with respect to any proposal to modify a county or municipal ordinance.
He stated that it violates the first part of the statute because it was an a official action which substantially affected the matter in which the official or a member of his/her immediate family, or the organization with which the official is associated, has a substantial financial interest.
In his letter, he said that in similar situations that involved litigation, he had seen judges simply ignore the vote of the person with the conflict, as though it had not occurred. In this case, there would still be an adequate number of people to approve the C.S.M.. He added that the town can decide what they think they should do because of the ethical lapse, but he wasn't sure that Croonborg should do anything differently.
He went on to comment that he was not offering an opinion about whether or not the lot subdivision by the proposed CSM was legal, but he would be happy to provide one upon request.
Fauerbach's letter went on to legitimize the concern whether these lots were, in fact, grandfathered as non-conforming lots with inadequate area. We went on to say, that even if the lots were grandfathered as non-confirming, he did not think that that the Town Plan Commission would necessarily have the authority to approve the C.S.M. or that a C.S.M. could be used to create new non-conforming lots just because the old lots were non-conforming.
We agree with Fauerbach's opinion that having a couple of real estate people on the Town Plan Commission probably provides for some valuable insights but when a C.S.M. or other decision comes before the Town Plan Commission that directly affects their agency or their spouse's agency, they simply have to abstain under this statute.
Click here to read Fauerbach's letter.
UPDATE: One of our readers pointed out a page from the Wisconsin Government Accountability Office's webpage. We have reprinted here, but we urge you to explore the website yourselves by clicking here.
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Overview of statutes pertaining to local officials. Section 19.59, Wisconsin Statutes, creates a code of ethics for local government officials. The statute also authorizes a county, city, village, or town to create its own code of ethics in addition to the state code. Some key definitions applicable to s.19.59 are found in s.19.42, Wisconsin Statutes.
Other statutes that apply to local officials include ss.946.11, 946.12, and 946.13, Wisconsin Statutes, pertaining to misconduct in public office and private interests in official actions. Who's covered? Section 19.59, Wisconsin Statutes, applies to all political subdivisions and special purpose districts of the state, as well as instrumentalities and corporations of the political subdivisions and special purpose districts. Within those local units of government, the statute covers elected officials, individuals appointed to a position for a specified term, individuals who serve in a position at the pleasure of the local government's governing body or executive, and county administrators and city or village managers. What are the rules? In general, the ethics code contains two kinds of restrictions. The first restricts an official from personally profiting from holding public office, apart from the receipt of salary and expenses to which the official is entitled. The second restricts an official from participating in decisions in which the official has a personal financial interest. More specifically:
Accepting items B. A local public official may not accept (and no one may offer or give) anything of value that could reasonably be expected to influence the official's vote, official actions or judgment. C. A local public official may not accept (and no one may offer or give) anything of value that could reasonably be considered a reward for any official action or inaction.
Controlling conflicting interests B. A local public official may not use office or position to produce a substantial benefit for official, family, or associated organization. How to file a complaint. Violating the code of ethics can subject a local public official to civil or criminal penalties. The statute is enforced by local district attorneys. An individual may call or write the district attorney in the county in which an alleged violation has occurred. An individual may also file a verified complaint with a district attorney. A verified complaint is a notarized, sworn statement of the alleged facts to the best of the individual's knowledge and belief. If a district attorney fails to bring an action within 20 days of receiving a verified complaint, the complainant may petition the attorney general to bring an action.
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The penalties for violation of this statute are as follows:
19.58 Criminal penalties. (1) (a) Any person who intentionally violates any provision of this subchapter except s. 19.45 (13) or 19.59 (1) (br), or a code of ethics adopted or established under s. 19.45 (11) (a) or (b), shall be fined not $100 nor more than $5,000 or imprisoned not more than one year in the county jail or both.
(b) Any person who intentionally violates s. 19.45 (13) or 19.59 (1) (br) is guilty of a Class I felony.
With the large amount of public protests at the recent public hearing on zoning changes, we would think that La Pointe's public officials, particularly those sitting on the Town Plan Commission, would be wise to to take great care when voting on issues that might even appear as a conflict of interest.
Edward Itor
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