UPPER THUMB – Planning officials who vote on developments when they have a conflict of interest could face criminal charges under a bill introduced in the Michigan House of Representatives.
State Rep. Gary Glenn introduced House Bill 4968 recently, which would prohibit members of local government planning commissions from voting on issues on which they or their families have direct financial interest.
The bill would amend Michigan’s Planning Enabling Act.
It does not specify that the provisions are specific to wind development, although Glenn was inspired to craft the bill as a result of dealings with wind development on planning commissions and local boards of government.
“Public officials should act in the public’s best interest – not their own personal financial interests,” said Glenn, A Williams Township Republican.“Government officials shouldn’t be voting on wind farm developments if they stand to personally profit from approval of the projects.”
The legislation would allow local governments to appoint as many temporary planning commission members as is required to constitute a quorum if regular members have to recuse themselves as a result of conflict of interest. Glenn says that would ensure that planning commissions could continue work on wind farm proposals if multiple members hold wind leases.
“Existing law has not sufficiently addressed this issue,” Glenn said. “We need legislation with teeth. We cannot have situations where members of a government board are allowed to vote on a project that would pay them $1,000 or more a month if the project is approved.”
Glenn said the need for this measure has been heightened because of the state’s mandate that 15 percent of all energy in Michigan must come from renewable sources by 2021.
Glenn added he wants to ensure decision-making authority regarding industrial wind projects remains in the hands of local officials or local residents.
Huron County planning officials have visited the issue of conflict of interest regarding wind development extensively in recent years.
The Huron County Planning Commission’s bylaws govern conflict of interest.
At a commission meeting earlier this year, county Building and Zoning Director Jeff Smith gave the following example of conflict of interest: If a planner has a contract with the developer who is bringing a project to the table, and the planner could financially benefit from the project, there is a conflict.
However, if a planner has a contract with a different developer, or in a different area than the one under consideration, this is also perceived as a conflict – even though the planner would not directly profit from the proposal at hand.
Glenn said the legislation only applies to those who directly profit from the development.
In Huron, if it were questionable as to whether a conflict of interest exists with a planner, the remaining members of the body would vote to determine whether a conflict exists, according to the bylaws.
As in Glenn’s bill, the Huron planning bylaws consider it a conflict of interest for a planner to consider an issue that concerns his or her relative. Relatives are defined in the county’s planning guidelines as a planner’s spouse, children, step-children, grandchildren, parents, brothers, sisters, grandparents, parents in-law, grandparents in-law, or member of his or her household.
Glenn’s bill says there is a conflict if the following relatives have a financial interest in the matter: a spouse, parent or stepparent, child or stepchild, sibling or half sibling.
Considering the case of a neighbor is also considered a conflict of interest under the Huron planning bylaws.
And considering cases where a member’s employer or employee is an applicant, agent for the applicant, or has a direct interest in the outcome is considered a conflict of interest in the bylaws as well.
When a conflict of interest exists, the bylaws state, “the member of the commission, or committee, shall do all of the following immediately, upon first knowledge of the case and determining that a conflict exists: a. declare a conflict exists at the next meeting of the commission or committee; b. cease to participate at the commission or committee meetings, or in any other manner, or represent one’s self before the commission, its staff, or others.”
According to Glenn’s bill, failure of a member to abstain from voting when they or family members can financially benefit “is a felony punishable by imprisonment for not more than four years or a fine of not more than $5,000, or both.”
Huron’s planners are currently wrapping up a review of the bylaws. The commission is expected to vote on the latest revisions at its February meeting.
Glenn told the Tribune this week that the legislation is to create uniformity in rules that planning commissions have to follow, and to raise local awareness of necessary regulations.
“We’re trying to establish a threshold for a minimum degree of ethics in this situation,” he said.
In some jurisdictions, planning commissions have the final say, and in some, the township or county boards do, he said.
Glen said he has heard of officials amending ordinances during a meeting so that what someone was about to do no longer violated the ordinance.
“We want to ensure that officials are not making public policy decisions based on personal profit,” Glenn said. “Current rules and regulations at the local level are deficient, ignored or amended on the fly to make decisions based on (members’) own financial interests.”
“Whether it passes or not, it casts a spotlight on the concern (of conflict of interest),” Glenn said. “It will get the attention of local planning commissions and make them more aware of existing rules, and what needs to change.”
He said he considered making the provisions of the bill applicable only to wind energy, but decided that all matters that come before planning commissions should be included.
So, what would happen if the majority of a planning commission was comprised of farmers, and they were considering expansion of a grain elevator? Would temporary members have to be appointed to hold the majority of a planning commission’s seats?
Glenn said that would not be the case.
In that instance, the grain elevator is of benefit to all farmers, he said.
But if a landowner who was considering leasing the necessary land to the elevator were on the planning commission, that landowner would have to declare a conflict of interest and not be involved in the decision to allow the elevator.
And in any conflict of interest situation, if several planners had to temporarily be appointed, and it slowed the process of approval, Glenn said, “The integrity of the process is far more important than the speed of it.”
While Glenn describes himself as “meticulously neutral on wind development,” he does oppose the state’s 15 percent renewable standard.
Chair of the House Energy Committee, he feels that a free market approach should be taken to energy policy.
Some local officials have pointed out that anyone with an agenda, and who does not objectively consider whether developers meet the criteria of an ordinance could be perceived as having a conflict of interest.
“I’m a conservative Republican,” he said. “I clearly have an agenda. I tend to promote principles I believe in. I’m not talking about somebody who has an opinion. It is not a conflict of interest to have strong feelings for or against wind.”
Of the legislation, Glenn said: “It’s a starting point. The impetus for the legislation is a widespread concern that existing rules and regulations are ignored and that they are not taken seriously.”
“If it was working this legislation would not be necessary,” he said.
Corporation counsel’s perspective:
Stephen Allen, Huron County Corporation Counsel, said that criminalizing conflict of interest can discourage people form getting involved in local government.
“Criminalizing this stuff – it’s hard to get citizen involvement in boards and commissions,” he said. “Threatening them with a felony for getting involved, it’s heavy handed”
Glenn pointed out that this is a bill in its early form.
If, as it goes through the legislative process, the penalties become misdemeanors, he said he would not have a problem with that.
Allen said there is nothing wrong with people who have opinions serving on government boards and committees.
But he said they should publicly admit where they stand on issues so the public can balance what they say, and know “how much stock” to put into their position.
“Very few people that comment or get involved are neutral,” he said. “The Zoning Enabling Act and Planning Enabling Act require diversity on a planning commission so that we bring perspectives from the various walks of life.”
“You can’t expect anybody with no ties at all to get on these committees,” Allen added.
He also noted that the Planning Enabling Act, Zoning Enabling Act and bylaws address the issues of conflict of interest sufficiently.
Not to mention, it’s not necessary to “clog up the criminal justice system” with local officials who have a conflict of interest and don’t disclose it.
For instance, Allen said, someone who is reviewing an application for Meijer to build a store may have Meijer stock in their portfolio, but inadvertently forget that while voting in favor of the development.
This legislation would then subject them to felony charges.