What Happened to Lowe’s? a Case Study in Ethics

The required biannual ethics training program for planning commissioners and the brief training program for new commissioners are apparently insufficient and ineffective. For example, one commissioner correctly abstained from discussion and the vote on the Lowe’s matter because she owned between $2,000 and $10,000 of the applicants stock. This amount is disclosed on the mandatory reporting document Form 700. Another member reported that he owned from $10,000 to $100,000 of stock in Home Depot, which is a major competitor of Lowe’s and active in the region with several nearby large stores. No recusal (the technical term for abstaining from discussion and voting) was offered by the latter commissioner.

Two planning commissioners, other than the above commissioner with the Home Depot stock, voted against the Lowes EIR while serving on the Board of Directors of a non-profit lobbying group actively opposing the Lowe’s proposal. One of those commissioners, who was chairman of the executive committee of this lobbying group, took a particularly active role. He testified about EIR issues to the Planning Commission prior to his selection as a planning commissioner. He was a leader of the task force appointed by the lobbying group to focus on the Lowe’s matter. He was chairman of another lobbying group that provided coverage of the first lobbying group making it qualified for 501c3 contributions that are tax deductible. The first nonprofit lobbying group developed a presentation for the Planning Commission hearing complete with lawyer, professional planning expert, and professional graphics that cost an estimated $100,000. This money presumably qualified as tax deductible. The first planning commissioner, on interview, said he was predisposed on the matter before the Planning Commission but open minded. He had refrained from active participation in the activity of his non profit group during the time he actually was on the Planning Commission. The records of this lobbying group are very sparse and were carefully edited before being turned over on subpoena to the Grand Jury. No activity by the special task force is described.

The second planning commissioner, also on the executive committee of the lobbying group, said that he did not participate actively in the decision of the lobbying group and was not a member of the task force dealing with the problem. No mention of recusal is made in the minutes of this lobbying group.

Several planning commissioners recognized the distinction between the quasi judicial and the legislative nature of different decisions they make on the Planning Commission. This distinction comes up in both ethics training and appeals court decisions based on common law. There was, however, no clear consensus on how to draw this distinction in the Lowe’s case.

The key to” ex parte” disclosure made by all planning commissioners with whom we discussed the topic is to ensure that the same information base is available to all participating decision makers. The problem arises that highly committed participants can interpret the same information, rationalize and select from available data in a manner that fits preexisting prejudices. This decision and many other high profile decisions have long complex EIRs presenting many scenarios with much data supporting positive and adverse consequences of different courses of action.

A quorum for the seven member planning commission is four members. Any motion that passes must have four affirmative votes, so long as it concerns a legislative matter. The Lowe’s application had a general plan amendment accompanying the EIR and, therefore, needed a 4-0 vote ratheer than a 3-1 majority. If the highly active planning commissioner and the Home Depot stock holder both recused themselves, the motion to reject the EIR would have failed to attain four affirmative votes. The Grand Jury believes that both cases have the clear appearance of predetermined decision making that on ethical, if not legal, grounds should have led to recusals. Virtually every training resource we consulted emphasized the importance of maintaining the appearance of unbiased and impartial judgment.

If the planning commissioner sitting on the Board of an organization actively lobbying on one side of a matter before the commission had recused himself, there would not even have been a quorum. CONCLUSIONS No general conclusions can be proven by a case study of one Planning Commission decision. One cannot claim any general pattern for planning commissioners opposing other big box developments. Nor can one claim that these same commissioners might evidence similar conduct on other decisions. What the Grand Jury does believe, and did find in this investigation, is that ethical issues abound which need to see the light of day. The City of Santa Rosa has an opportunity through implementing stronger ethics training to provide leadership on these issues that can illuminate practice in other cities, the County, and even the State. RECOMMENDATIONS