AUBURN — The city’s Ethics Panel found that Planning Board member Brian Dubois did not have an “actual” conflict of interest when he voted to approve a 60-unit housing project last month, but said the public perception of a conflict should have been recognized by the board.
The panel also said Dubois should have disclosed his involvement in the sale of the property at 555 Court St., the eventual site of the development.
The advisory opinion, issued by the three-member panel May 17, lays out a series of recommendations for officials to consider, including a better mechanism for officials to “identify potentially conflicting relationships.”
The 4-3 vote on April 12 approved the Stable Ridge Apartments development slated for the Court Street property, the first to be approved under new zoning regulations in Auburn’s core residential area.
Shortly after the Planning Board decision, resident Ryan Smith gathered the required 25 voter signatures to force a hearing of the panel. Among the questions submitted by Smith was, “Is it appropriate for (Dubois) to vote on a development in which he was a buyer agent for?”
Dubois, a real estate agent, represented developer Jessica Klimek when the property was purchased. Smith is one of five petitioners seeking to repeal the new zoning that paved the way for the project, and has argued that Dubois should have recused himself simply due to the “appearance” of a conflict.
The panel said that state law and local ordinances “contain language providing, in essence, that all municipal officers ‘shall attempt to avoid the appearance of a conflict of interest.'”
The city’s ordinance states, “A public official shall refrain from participation in a matter when there exists an actual, potential or reasonably perceived conflict of interest arising from a personal relationship or a financial involvement that would cause a reasonable person to believe that the public official cannot act in his official capacity without self-interest or bias.”
During the initial hearing April 26, Dubois said his business relationship with the developer ended after the sale, and that a vote by fellow Planning Board members found there was no “reasonably perceived conflict of interest.”
The panel said “the Planning Board’s unanimous vote finding that (Dubois) did not have a reasonably perceived conflict of interest was erroneous,” but that (Dubois) did nothing wrong by participating in the vote.”
The Ethics Panel also concluded that Dubois “did not have an ‘actual’ conflict of interest in the outcome of the Planning Board’s vote,” and did not have “a financial incentive to vote one way or the other.”
“There can be no doubt, and this Ethics Panel believes, that (Dubois) was not and is not using his position on the Planning Board for personal gain,” the opinion said. “The Ethics Panel believes that (Dubois) was acting independently, and impartially when he cast his vote with the majority of his Planning Board colleagues on April 12.”
However, the panel found that Dubois’ “prior financial relationship as the buyer’s agent in its purchase of the property gave rise to a reasonably perceived bias.”
In its recommendations, the panel urged public officials to be more sensitive to the public’s perceptions, especially when making decisions on items that are already under public scrutiny.
“When matters of public concern are highly controversial, public officials need to have a heightened sense of awareness about how their relationships with involved parties will be perceived by the public,” the opinion states. “The Ethics Panel does not believe that (Dubois) failed the public, or the trust it places in the Auburn Planning Board. But, because this was a matter of heightened controversy, there were many more eyes perceiving the actions of the Planning Board and a spotlight fairly or not has been shined on (Dubois) because of the controversy surrounding the proposed development of the property.”
The panel also recommended that the city establish a “procedural mechanism” for public officials to identify “potentially conflicting relationships,” either at the beginning of official meetings, or when each agenda item is introduced.
It also states the city ordinance should be amended to allow for the Planning Board to refer conflict questions to the Ethics Panel prior to a Planning Board vote on the matter.
Lastly, the panel said public officials need to keep in mind both the state and local language regarding conflicts.
“Conflict of interest training for local officials should ensure that both standards are explored and understood by public officials, with adequate warning about the heightened attention to conflict issues that comes with controversial issues before the board,” it states.
The opinion was submitted to Smith and Planning Board Chairman Evan Cyr, but the board is not bound to take action on the opinion.
On Monday, Cyr said the board is not scheduled to meet until June 21 and has not yet discussed the opinion.
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