ABSTRACT:
“The Fair Political Practices Commission is a five-member
independent, non-partisan commission that has primary responsibility for
the impartial and effective administration of the Political Reform Act.
The Act regulates campaign financing, conflicts of interest, lobbying, and
governmental ethics. The Commission’s objectives are to ensure that public
officials act in a fair and unbiased manner in the governmental
decision-making process, to promote transparency in government, and to
foster public trust in the political system.”
Moreover, “California was the first state to pass a comprehensive
political reform package. Proposition 9, known today as The Political Reform
Act, was passed as a ballot measure by California voters in the June 1974
election.” On June 7, 2017, Carmel-by-the-Sea
resident and former planning commissioner Ian Martin made a sworn complaint
with the Fair Political Practices Commission.
Excerpts from Ian Martin’s Complaint Number COM-06072017-01036, June
7, 2017 and Additional evidence, COM-06072017-01036 email, June 27, 2017, are
reproduced. Ian Martin’s Complaint Number
COM-06072017-01036, June 7, 2017, Additional evidence, COM-06072017-01036
email, June 27, 2017, “update” correspondence and correspondence from Galena
West, Chief Enforcement Division, June 22, 2017, document
copy is embedded. And the current Political Reform Act 2017 document
copy is embedded. Importantly, Galena West,
Chief Enforcement Division, states, in part, “This
letter is to notify you that the Enforcement Division of the Fair Political
Practices Commission will investigate the allegation(s),
under the jurisdiction of the Commission, of the sworn
complaint you submitted in the above-referenced matter. You will next receive
notification from us upon final disposition of the case.”
First
possible violation:
In
the agenda for the June 6, 2017 City Council Meeting it came to my attention
(by reading the agenda for this meeting) that a member of Carmel's City
Council, Carolyn Hardy, had been one of two council-members on an ad hoc
committee negotiating a lease agreement for the City's outdoor Forest Theater.
Ms. Hardy's home is approximately 50 feet from the Theater property.
The
negotiated lease agreement gives a local not for profit, the Sunset Cultural
Center, the right to manage and operate the City-owned Forest Theater for
fifteen years. It sets terms such as that the City desires that the Forest Theater
be operated and managed “while demonstrating sensitivity to and consideration for
the residential environment surrounding the open-air facility” and that the
Sunset Center is required to “prohibit unnecessary, excessive and annoying
public disturbances such as noise or excessively bright lighting which would
intrude on the quiet enjoyment of the residential neighbors.” It supposedly
includes permitted uses of the theater such as the theatre’s performance and
rehearsal schedules; the move-in-and move-out procedures; and the theater’s hours
of operation, though these were not attached to the agreement in the agenda packet
and thus the details are not clear. What is clear is that the terms of this
lease - the extent to which the outdoor theatre projects sound, uses strong
lights, operates at certain hours, will impact the value of Council-member
Hardy's home. (See Lease Agreement, page 379 of the City
Council agenda packet.)
Many
of the residents of Carmel did not realize this Forest Theater negotiation was
underway. Since negotiations began in December of 2016, the item was improperly
agendized as “Real Property Negotiations – Lease Pursuant to Government Code Section
54956.8- Between Chip Rerig, Carrie Theis, and Carolyn Hardy and Sunset Cultural
Center, Inc”. This agenda item only references another lease that was being negotiated,
apparently at the same time, which gave the Sunset Cultural Center control over
another venue, the Sunset Center in a different part of the City. No mention
was made of the Forest Theater. Therefore many, like myself, had no idea the
negotiations also involved the Forest Theater, or we would have raised the
issue of a conflict much sooner.
According
to my understanding of the Political Reform Act, the only way Ms. Hardy could
or should have been part of this decision was if she had received a letter from
the FPPC allowing her to do so. The FPPC appears to have no such letter on file
online. There is one earlier letter allowing Ms. Hardy to participate in a
decision to adjust the Forest theater’s fee structure, a very different decision
than the one at issue here. (FPPC File No. A-16-257, December 22, 2016)
Ms.
Hardy’s feelings about the Forest Theater and the impact its operations have on
her home have been documented in the local newspaper in the past. In 2001,
after she moved into her home near the Theater, Ms. Hardy complained about the
theater noise affecting her and expressed her personal desire to have
restrictions on the use of Forest Theater, in particular, fewer productions,
quieter music, limits on ticket sales and a curfew of 10:30 p.m. (See Carmel
Pine Cone April 20, 2001 “Does Forest Theater Make Too Much Noise? Neighbors seek
restrictions on plays.”) Ms. Hardy did recuse herself from the council's June 6
decision to allow the City Administrator to sign the lease agreement. However,
the process was over. She had already
been one of two council members in the closed-door meeting negotiating this lease
for several months. At the City Council meeting, two residents notified City Council
that the item had been improperly agendized and that Ms. Hardy was improperly
part of the process. I was one of the speakers. These concerns were ignored by
City Council. (See video of Item 21, June 6 City Council meeting).
Second
possible violation:
Also
in a separate matter relating to the Forest Theater, in the March 21, 2017 City
Council special meeting (See video at time stamp 1:22:40) Carolyn Hardy discourages the council from
spending money on an audio system and acoustical shell for the Theater, items
that could have potentially directed sound towards her home.
In
regards to Complaint Number COM-06072017-01036, I’d like to respectfully
suggest that the FPPC compare the old “use agreements” for the Forest Theater, with the new lease that Carolyn Hardy was a negotiator for. The new lease has language that deals with impacts on the surrounding residential neighbors (which includes Hardy) that does not appear in the old use agreements.
I contend that Carolyn Hardy shouldn’t have been involved in creating the Forest Theater lease because her home is 50 feet away from the theater property. Ironically, even the lease she helped negotiate precludes it, so I would think that she clearly understands the issue:“Conflict of Interest. No member, official, or employee of the CITY shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official, or employee of the CITY participate in any decision relating to this Agreement, which affects their personal interests or interests in any corporation, partnership, or association in which they are directly or indirectly interested.” (Page 395 of agenda packet, 11.13 of new lease.)
Complaint Number COM-06072017-01036, Ian Martin, June 7, 2017
Political Reform Act 2017
Fair Political Practices Commission
REFERENCES:
Martin files complaint over Forest Theater lease, MARY SCHLEY, The Carmel Pine Cone, July 21, 2017, 7A
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