Friday, February 21, 2014

In rare event for Davidson, Commissioner recuses from a vote. (VIDEO)

Photos from Planning Board Meeting
Wednesday night finally saw the vote on the proposed CHS sign change for the new mental health facility on highway 73 near Summers Walk.   As reported here, this approval seemed to be a foregone conclusion after the Davidson Planning Board unanimously approved the change last month.

While it does appear that CHS gamed the system to a degree in pursuing this zoning change and it likely sets an unwelcome precedent for signage on the East Side of town, the truly important thing for good government is what happened just before the vote.

For the first in recent memory at a Davidson Town Board meeting, there was a detailed discussion about allowing a Commissioner to be excused from voting because of a conflict of interest.  More importantly, a Commissioner was actually allowed to be excused from voting by his fellow Board members - removing the fa├žade that somehow Davidson's Board is beyond reproach and that members' business dealings never collide with their responsibilities as elected officials.

As we've been very strongly encouraging in these pages (here, here, and here), Commissioner Brian Jenest requested and was allowed to not vote on the CHS sign - a sign he designed.  He did not disclose how much money his firm made on the project.  He did not disclose any information about when the need for the zoning change was determined.  He reversed the logic and said that he'd actually get more work if the zoning change was not approved - meaning if he was allowed to vote and he voted for it, he would somehow be voting against his own best interest, thus minimizing the issue to a degree.  However, in the end Commissioners agreed that voting on a project where a Commissioner's firm is directly involved is in fact a conflict of interest.

The vote to allow the recusal was unanimous (4-0) by the remaining Commissioners, but it was not completely without reservations.  Town Attorney Rick Kline described allowing this particular recusal as exercising an "abundance of caution".  (Commissioner Jenest designed the sign?!?!?  How much more clear a situation could there be???) Commissioner Graham said he was concerned about setting the bar too low for allowing recusals - meaning making it too easy to recuse.  His stated reason was that he might not be able to vote on future changes to the Town's affordable housing policy because he's a builder.  (Really?!?!?  If any proposed changes to the affordable housing policy would impact an in-flight, previously approved affordable housing plan including one of his projects, then no, Commissioner Graham should not vote on such a change.  However, if they would just impact future projects and require a separate vote to impact his project, then he could vote on the ordinance changes but NOT vote on any change directly impacting his project.)

Here's the point.

The Board did the right thing here.  This was a small victory for good government.  However, Commissioners and our Town Attorney should not continuously be looking for loopholes in how to vote on things where a Commissioner has a clear self-interest.
Incidentally, Commissioner Fuller was allowed to vote on the sign after admitting that his employer, the McIntosh Law Firm, does significant business with CHS.    However, that business is likely not related to building design, so he did not recuse himself as this vote did not directly impact his firm.  That was also the right thing to do.

Below is the video.  The whole meeting is only 25 minutes.  The discussion about recusals starts at the 6:45 mark.

Davidson Town Board Feb 2014 Meeting


  1. Rick, thanks for the article and video. To clarify my comment about my participation on any discussion pertaining to affordable housing, obviously if we were discussing one of my projects, I would recuse myself (and when we voted on the affordable housing plan for my upcoming neighborhood on Delburg Street a few months ago, I asked to be excused and I was recused). My broader point is that if we start discussing changes to the affordable housing ordinance that might affect future projects, should I ask to be recused just because there is some potential financial impact? If we set the bar too low and everyone gets recused just because of some potential impact, the risk is that the commissioners who know the most about a certain topic are going to be sidelined all the time. I think that would be unfortunate. It is a balancing act and every situation is unique.

  2. Hey Rodney, thanks for the comment. Agreed, every situation is unique. That's why they all have to be looked at as they come up.

    This article from the UNC SOG sums it up nicely.

    As a builder it would seem you certainly could talk about an ordinance change as long as it does not immediately impact a current project. Speculating on how it might impact a future, unplanned development you might do would appear to not meet the threshold of the current statutes and would not require a recusal if that speculation was the only indication of financial interest. There are several things that would need to happen and those are not all certain.