Carefree Truth

Issue #390, April 10 , 2015

 

 

A legal opinion was sought from municipal law attorney Bill Sims pertaining to the allegation of a conflict of interest of Councilman Mike Farrar by Councilman Glenn Miller.  Mayor Les Peterson stated that Carefree regards a charge like this as serious, checks into it, and abides by the law.

 

 

 

Gary Neiss said some of the Council members requested a third party evaluation.  Bill Sims has a rich history of experience in Open Meeting Law and Conflict of Interest issues, and is by far the leading expert in the state of Arizona on municipal law.  Mayor Peterson added that this is normally done in closed meetings, but the Town wanted the transparency of a public meeting, so all would be privy to the results.  

 

 

 

Mr. Sims began by saying there is very rigorous Conflict of Interest legislation to insure elected officials act in the interest of their constituents, not in self interest.  If a conflict exists, an official or staff member must declare and record it, and recuse him or herself.  In lectures he gives at League of Cities and Towns meetings, however, he warns that this should not be applied so vigorously as to disallow everyone from voting on anything.  Business people with community experience are desirable members of Councils, as opposed to Councils containing nothing but lawyers.  The courts concurred.  During his investigation of this allegation, he found case law supporting that position.  Cases are considered speculative if there is no certain monetary gain.  The Court doesn't want a law that results in every business owner in a community being denied service on a Council.

 

 

 

Mr. Farrar, a commercial broker, declared a conflict of interest on October 3, 2014, and signed a disclosure form which was filed by the Town Clerk when the Town was deliberating about buying a lot to use for municipal parking, because the lot was owned by a client of his.   He also publicly declared that conflict of interest during a Council meeting, explaining why he would need to recuse himself from those discussions and actions.  On October 24th, 2014, an email was received from the property owner to inform the Town that he was not interested in selling the lot at that point, that his intent was to lease it.  The Town was only interested in making a purchase, resolving the conflict of interest.  Other Council members were not necessarily aware of this resolution, and that the conflict of interest no longer applied.  

 

 

 

Mr Sims suggested that, in order to avoid future misunderstandings of this type, resolutions to any conflict of interests should be made known at public meetings, and all conflict of interests and their resolutions should be noted in the meeting minutes.  Mr. Sims said, "Mr. Farrar did nothing wrong.  He did exactly what the Town Clerk asked him, did exactly what's required by the Conflict of Interest Statutes." But communications should be improved.

 

 

 

There was also concern about a conflict of interest due to the proximity of the client's property to a proposed cultural center. Three options were discussed for the location of this center. The first was adjoined to the existing Town Hall building on Town property, in conjunction with a Council Chamber.  The second was on Easy Street, near the sundial on Ed Lewis' north parcel.  The third, and Mr. Lewis' preference, was on his south parcel, across from the Lutheran Retreat.  Certain Council members believed that Mr. Farrar opposed the center going onto Mr. Lewis' property.  Mr. Sims said he and Ms. Price reviewed videos of the meetings in detail, and it was shown that Mr. Farrar had expressed the opinion that the center would be more beneficial to the town businesses as an attraction if it were located either on Town property or on Mr. Lewis' north parcel, nullifying the concern that he was opposed to it anywhere on the Lewis property.  When measurements were taken, it was ascertained that all three locations were in sufficiently close proximity to one another that the location of a cultural center on any one of them would not differently affect the value of Mr. Farrar's client's property.  

 

 

 

In addition, Mr. Farrar's contract with the client was non exclusive.  Because there was no certainty that the location of the cultural center would change the value of the property listed by Mr. Farrar, or that Mr. Farrar would actually be the agent who leased the property, his compensation was speculative.  The case law identified by Mr. Sims supported the fact that the criteria for recusal and disclosure were not triggered.  But he added that it would have been preferable to have documented in the minutes why that conclusion was reached.  Again, he felt that although legalities were followed, communication fell short, resulting in misunderstandings.  The details of his findings are in the letter he submitted to the Town, which can be accessed through this link and read in its entirety.  http://carefreetruth.com/Carefree_Truth/William_J_Sims_III.html    

 

 

 

The Arizona Attorney General issued an opinion that the appearance of an impropriety does not mandate recusal and disclosure unless other aspects of the statute are triggered.  Ms. Price identified instances in which Mr. Farrar participated in discussions dealing with the location of a cultural center in January, 2015.  Since there had been a conflict in the past, she felt one still existed.  Mr. Sims understood why there was concern about a violation, and again suggested better communication to avoid future misunderstandings.  All the legalities were met, but it could have occurred better, and a lesson was learned.   Ms. Price thanked Mr. Sims for "putting it to bed" so they could move forward. 

 

 

 

Mr. Farrar added that if there is a concern about a violation, the concerned person should talk to staff to see if procedure was followed, and if there was a resolution, before making public accusations.  He hoped to now move forward, but since he was publicly accused of engaging in a conflict of interest, he hoped for a public apology from Councilman Miller and Councilwoman Price, who he said co-authored the accusation. Then they could put the matter behind them and work forward for a better Carefree.  Councilman Miller immediately rose from his seat and crossed to where Councilman Farrar sat.  He apologized, and they shook hands.  Mr. Farrar accepted the apology.  Mr. Sims said, "That's exactly what government is supposed to do."  When Mr. Miller returned to his seat, Mr. Farrar got up and walked towards him, apologizing for not standing.  Mr. Miller rose again, and they met in the middle, shook hands, and hugged.

 

 

 

Mr. Miller asked Mr. Sims how to better communicate without violating the Open Meeting Law (OML).  Mr. Sims replied that council members who disagree should talk to each other, as long as there is not a quorum.  They should not hide behind OML as an excuse not to talk.  Also, concerns could be raised at public meetings in a polite manner.  Mr. Miller pointed out that non agendized items may not be discussed at meetings.  Mr. Sims said a request should be made to put it on a future agenda, and asked what the procedure is to do so in Carefree, noting that many cities and towns require a request from several Council members in order to place an item on the agenda, and it can sometimes be difficult to get the required consensus.  Mr. Neiss explained that Carefree's ordinance allows agenda items to be requested by a single Council member.  Mr. Sims repied that was ideal democracy in action. 

 

 

 

Mayor Peterson stated that there had been a breakdown in communication, but now they could get back to working together for the good of the people of Carefree, which is why they are all there.  He thanked Mr. Sims for attending the meeting and resolving the issue.

 

https://vimeo.com/user18676056/review/124607690/6fcb5a7bce

 

 

Lyn Hitchon

 

 

 

Prepared by Carefree Truth

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