The Cincinnati Situation IV - Proportionality
In determining whether a conflict or preferential treatment might
exist, another aspect of benefits, in addition to how definite or
direct they
are, is their proportionality. Stated in the form of a question, Is the benefit at issue
just one of many equivalent benefits to a sizeable group, such as
senior citizens or property owners, or is it especially large?<br>
<br>
The council member took the position that he and his family firm
benefited no more than others who owned or had development rights in
properties along the proposed streetcar route. In <a href="http://news.cincinnati.com/article/20100430/EDIT02/4300355/Bortz-I-am-n…; target="”_blank”">his
letter
to the editor</a>, he quotes an unrelated state EC advisory
opinion that states that there is no conflict if a benefit is not
"selective, differential, or in disproportion to the benefit provided
to other property in the political subdivision, or the portion thereof
receiving the improvements." He insists that his family firm is not
being treated or benefited any differently than others. There is no
preferential treatment, he concludes.<br>
<br>
While most business and property owners in proximity to the streetcar
route would benefit equally, larger businesses and owners of larger or
numerous properties would benefit disproportionately. Effectively, a disproportionate benefit to an individual or entity can be seen as de facto preferential treatment, even when no special action has been taken to prefer the individual or entity over others.<br>
<br>
In his letter to the editor, the council member notes that the vice
mayor owns a condo a block away from the proposed route, the mayor's
father owns a home less than three blocks away from a proposed
connector to Uptown, and a former vice mayor, who voted on the
streetcar while a council member, owned a business along the proposed
route. He then concludes that, "Under the [state EC] staff attorney's
reasoning,
none of these dedicated and committed public servants would be able to
participate in the streetcar debate."<br>
<br>
This statement totally ignores proportionality. The owner of nine
properties, or
development rights in these properties, on or near the streetcar route
would have a far greater benefit than the owner of a nearby condo,
home, or small business. In addition, according to a May 8, 2010 letter
sent to the council by a Cincinnati attorney (attached; see below), the
family firm was quoted as saying that its
$100
million proposed project
was “drawn up with the streetcar in mind” and that the family firm is
“expecting
the streetcar system to loop the project.” If
this
big proposal is directly related to, and possibly dependent on,
the streetcar project, it appears that the family firm expects to
receive a benefit far larger than the great majority of other firms.<br>
<br>
According to <a href="http://news.cincinnati.com/article/20100525/NEWS0108/5250380/Chris-Bort…; target="”_blank”">the
May
25 <i>Enquirer</i> article</a>, the May 25, 2010 state EC advisory opinion
stated, “While the streetcar project will undoubtedly affect all
citizens in Cincinnati, it cannot be argued that its effect on all
citizens is ‘uniform’ in manner. The first two phases of the streetcar
will serve a small portion of the city. Those individual citizens whose
properties are located along or adjacent to the proposed route ... will
be affected by the streetcar project in a way that is particular,
definite and direct.”<br>
<br>
Most likely because the law does not expressly refer to
proportionality, the EC took the position that because the property
owners along the route represent a small percentage of property owners
in the city, all property owners are not benefited uniformly. This
allowed the council member to respond, “How can you possibly know when
a project is big enough to go from providing a direct benefit to a
uniform one? This is a seven-mile streetcar loop. Is eight miles big
enough? Ten? One hundred? Who knows?"<br>
<br>
Considering the issue of proportionality would have been, I think, a
better approach.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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