Malibu interim city attorney claims charges of conflicts of interest at the Planning Commission won’t hold up
The City of Malibu has responded to a conflict of interest charge complaint submitted to the California Fair Political Practices Commission (FPPC). City Attorney Trevor Rusin wrote the FPPC that any charge of a conflict of interest against two Malibu planning commissioners “is a novel interpretation of the Political Reform Act (“Act”) that has not been accepted by any court.” Rusin adds: “the Complaint fails to cite even a single FPPC advice letter that would support this interpretation.”
The complaint filed by former FPPC Chair Ann Ravel alleges Planning Commissioners Skylar Peak and Dennis Smith of having a reasonably foreseeable material financial benefit when they vote on development projects. Recent votes have been in favor of development on a 3-2 vote with Peak and Smith voting in favor. Stated in the complaint: “These Planning Commissioners were contractors who ultimately were employed to work on the projects on which they had voted.”
In his letter to the FPPC, Rusin states of the complaint: “It relies on an assumption that the City of Malibu has only a handful of electricians and building/grading contractors who perform work in the City. This is simply not true. Literally hundreds of electricians and grading contractors perform work in the City.
“It also ignores the fact that property owners in Malibu have a right to develop their property in compliance with the City’s codes. The Complaint does not argue that the Commissioners have a specific interest in any project before them, instead it insists that the mere fact that an approved project will potentially involve electrical or building/grading work for someone requires recusal. It assumes the Planning Commissioners control whether development occurs in the City. They do not. The City’s codes define how much development may occur on a specific property. If the code allows a 3000 square foot home to be built, the planning commission cannot stop a property owner from building such a home. The Planning Commission’s role is simply to ensure that the 3000 square foot home is located and constructed in conformance with the City’s codes.
As a result, while a Planning Commissioner can have a financial interest in a particular project which requires recusal, there can be no financial interest in “development” in general. Many professions gain work and income from “development,” including realtors, lawyers, insurance brokers, construction workers, interior designers, landscape professionals, business and real estate investors and many more. Prohibiting an individual from serving on a Planning Commission solely because their profession is involved in development is not supported by the Act, and would have wide-ranging implications if such a rule applied.
Further, while Councilmembers Riggins and Grisanti and the City of Malibu are named in the Complaint, no conduct that violates the Act has been alleged against them. Councilmember Riggins appointed Commissioner Peak, and Councilmember Grisanti appointed Commissioner Smith, but the action of appointing them does not violate any provision of the Act. Even if the unsupported theories in the Complaint were the law and Commissioners Peak and Smith were not eligible to hear items that involved electrical or grading work, they would still be able to serve on the Planning Commission and participate in items that do not involve such work as well as legislative items that come before the Planning Commission. Again, even if everything stated in the Complaint were true, it would not constitute a violation of the Act by the City or Councilmembers Riggins and Grisanti.”
Rusin then goes on to state that the complaint does not describe an instance where Peak and Smith were ultimately employed on projects they had approved, but does note that Peak, an electrician, was hired to perform work at a Portshead Road site that was approved years earlier when he was a councilmember and after the property changed hands.
“Then Councilmember Peak had no financial interest in the project at the time it was approved; the development of such an interest years later when the property had a new owner does not violate the Act,” Rusin said.
Rusin’s response concluded, “The City is committed to ensuring compliance with all ethics and conflict of interest laws and regulations. City staff routinely coordinates with all of the Commissioners to assess their financial interests, and to ensure consistency with FPPC Regulations and ethical standards. In situations where the City Attorney’s office believes there is a conflict within the scope of the Political Reform Act (“Act”) or FPPC regulations, that Commissioner is advised of his or her legal obligations, which may include recusal.
“The City takes these matters seriously and has examined in detail the allegations contained in the Complaint. As stated above, and further described below, close examination of the Act shows that Commissioners Peak and Smith have not violated it, and are not required to recuse themselves from all applications that involves “development” as claimed in the Complaint that would cause a similarly situated person to weigh the advantages and disadvantages of the decision on the financial interest in formulating their position.”
The FPPC is investigating the matter. It is not known yet when the commission will issue its findings.