Indirect Interests and Freedom of Speech
An unpublished Connecticut Superior Court
opinion takes an odd approach to a conflict of interest charge against
a member
of a zoning commission in the small town of Pomfret (pop. 4,000). Not
only is it odd, but it could very well be unconstitutional, as it
partly bases
its decision on whether individuals have spoken out for or against a
matter before the zoning commission. My thanks go to Patricia Salkin,
who
wrote about the decision in her excellent <a href="http://lawoftheland.wordpress.com/" target="”_blank”">Law of the Land blog</a> and
sent me a copy of the decision.<br>
<br>
In the case of Dooley v. Planning & Zoning Commission of Pomfret
(CT Superior Court, judicial district of Tolland, June 16, 2009), the
plaintiff was seeking to void a P&Z decision because one of the
commission members' in-laws lived next to the property with respect
to which the commission granted a permit to extract gravel.<br>
<br>
CT General Statutes §8-11 states, "No member of any zoning
commission or board ... shall participate in the hearing or decision of
the board or commission of which he is a member upon any matter in
which he is directly or indirectly interested in a personal or
financial sense."<br>
<br>
The court in Timber Trails Associates v. Planning & Zoning
Commission, 99 Conn.App. 768, 775, 916 A.2d 99 (2007) concluded that
"If a zoning authority member fails to disqualify himself despite a
conflict of interest, the action of the authority in which he
participates is invalid."<br>
<br>
That's pretty tough, tougher than the City Ethics Model Code, which
only <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC58…; target="”_blank”">calls
for
the voiding</a> of contracts or transactions based on an ethics
code violation.<br>
<br>
The Dooley court looked at two other CT cases. In Thorne v. Zoning
Commission, 178 Conn. 198, 204-05, 423 A.2d 861 (1979), the court
voided
a zoning change where the board's chair had actually acted on his
parents' and sister's behalf as abutting landowners by presenting a
petition to the zoning board of appeals. Nothing like that in the
Dooley case.<br>
<br>
In Frusciami v, Zoning Board of Appeals (Superior Court,
judicial district of Middlesex, Docket No. 6082, April 7, 1992,
Higgins, J.) (6 Conn. L. Rptr. 298, 300), a zoning board member's
father-in-law, also an abutting landowner, had "expressed concern or
opposition [to the board member] with regard to the plaintiff's
renovation work,"
thereby causing the court to invalidate the board's denial of a
variance.<br>
<br>
The Dooley court found that there was no evidence that the board member
in
Dooley had been active in the matter outside the zoning commission, nor
"that the [in-laws] have expressed any
opinion on CT Real Estate's special permit application to [the board
member] or to anyone else and,
therefore, that there was not a personal interest so as to warrant the
board member's disqualification."<br>
<br>
The implication here is that evidence must be presented that a relative
actually expressed an opinion, to the related zoning commission member
or anyone else, for the zoning commission member to be considered to
have a personal interest. This
not only seems illogical and hard to prove, if the expression was
private. But such a decision chills the speech of such a relative who,
if he or she knows the law, will feel compelled to keep silent about
his position on a public issue in order to protect his board
member-relative's ability to participate in the matter.<br>
<br>
If a commission member has an indirect interest in a matter, what is
said by the person with the
direct interest, and to whom it is said, should not be relevant. The
interest exists or it does
not. The commission member-relative is in the same position either way,
damned by the public if he or she seems to vote to protect the
relative, and
damned by the relative if he or she votes against the relative's
interest. The public and the commission member-relative should be
protected
from the commission member's participation in the matter, even if the
relative says nothing about the matter. The existence of a conflict
should have nothing to do with the relative's exercise of his or her
freedom of speech.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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