WENDY COSIN, Director of Planning and Development VIVIAN KAHN, Acting Deputy Director of Planning and Development

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1 Office of the City Attorney To: From: Re: WENDY COSIN, Director of Planning and Development VIVIAN KAHN, Acting Deputy Director of Planning and Development MANUELA ALBUQUERQUE, City Attorney By: LAURA N. McKINNEY, Deputy City Attorney Landmarks Preservation Commissioners Conflict of Interest on the Congregation Beth El Project by Virtue of Being Board Members and Staff of the Berkeley Architectural Heritage Association Which Has Already Taken a Position on the Project Issue: Are Landmarks Preservation Commissioners Doug Morse, Carrie Olson, Becky O Malley and Lesley Emmington Jones disqualified from the participating in the Landmark Preservation Commission s decision regarding the Congregation Beth El project? Conclusions: 1. Yes. Commissioners Doug Morse, Carrie Olson, Becky O Malley and Lesley Emmington Jones are disqualified from participating in the Landmark Preservation Commission s decision regarding the Congregation Beth El project. 2. Such Commissioners must also disqualify themselves from any other projects on which BAHA takes a position as long as the Commissioners continue to retain the position with BAHA on projects which will appear before the LPC Center Street, Berkeley, CA Tel: TDD: Fax:

2 Page 2 Background: 1. LPC s Role in the Approval Process of Congregation Beth El s Project Congregation Beth El has purchased property located at 1301 Oxford Street and proposes to demolish existing structures on the site and to construct a synagogue and school. The Congregation has applied to the City of Berkeley for Use Permits for the project. Since one of the structures proposed to be demolished is over 40 years old, BMC section 23C requires that the Use Permit (UP) application be forwarded to the Landmarks Preservation Commission (LPC) for review and its comments are to be considered by the Zoning Adjustments Board (ZAB) in making its determination on the approval or disapproval of the UP. In addition, due to the fact that the City has determined that issuance of the Use Permits for the project may have a significant effect on the environment, an Environmental Impact Report (EIR) is in the process of being prepared pursuant to the California Environmental Quality Act (CEQA). Public Resources Code et seq. The LPC is scheduled to review the Final EIR and the UP application for demolition of the structure which is over 40 years old and provide comments to the ZAB for its determination on the certification of the EIR and its approval of the UP. Finally, the LPC has an additional role in this process due to the fact that the project site has been designated a landmark by the LPC. A previously existing structure on the site (the Napoleon Byrne House) and the site were designated as landmarks by the LPC in The Byrne House was damaged by fires in 1984 and 1985 and demolished in In 1990, the LPC reviewed and reaffirmed the site designation. Due to the fact that the site status is a designated landmark, Congregation Beth El s proposal to carry out construction, alteration and demolition on the site requires that it apply for a permit to alter the landmark pursuant to BMC section and the LPC has authority to approve, modify or disapprove this application under BMC section BAHA s Participation in the Approval Process and the LPC Commissioners Positions with BAHA During the EIR process, the Draft EIR was provided to the public and brought before the LPC for its review and comments. One organization to submit comments on the adequacy of the EIR was the Berkeley Architectural Heritage Association (BAHA). See Attachment A (BAHA s comments on the DEIR). Specifically, BAHA commented: BAHA finds the DEIR document to be insufficient in disclosing the decisions and recommendations made by the Landmarks Preservation Commission to ensure

3 Page 3 that the site is protected, enhanced and perpetuated as a reminder of past eras, events and persons important to local history and as a setting reflective of the natural history of the upper Codornices Creek corridor. Given the glaring deficiencies in the published DEIR and the responsibilities that are mandated under the California Environmental Quality Act, BAHA urges the City of Berkeley to request that a new DEIR document be prepared. Landmarks Preservation Commissioners Doug Morse, Carrie Olson and Becky O Malley were members of BAHA s Board of Directors and Landmarks Preservation Commissioner Lesley Emmington Jones was employed as BAHA s Preservation Specialist at the time BAHA took this position. Discussion: The U.S. Supreme Court has held that a fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man is permitted to try cases where he has an interest in the outcome. American Cyanamid Co. v. FTC, 363 F.2d 757, 763 (6th Cir. 1966) citing In re Murchinson 349 U.S. 133, 136 (1955). Although specific requirements for procedural due process vary depending on the situation under consideration and interests involved, courts have held that [p]rocedural due process in an administrative setting requires the right to [appear] before a reasonably impartial, noninvolved reviewer. Gai v. City of Selma, 68 Cal.App.4th 213, 219 (1998) citing Williams v. County of Los Angeles, 22 Cal.3d 731, (1978) and Burrell v. City of Los Angeles, 209 Cal.App.3d 568 (1989). In examining the issue of what it means to be an impartial noninvolved reviewer, courts have determined that: [P]rocedural due process is denied where a member of a government agency votes on an issue having legal substance if that member [has] a non-pecuniary position with an organization which has taken an affirmative stand concerning the issue, and the member is aware that stand. Air Transport Association of America v. Hernandez, 264 F.Supp. 227, 231 (D.C. 1967). The facts of the Hernandez case are similar to those in this instance. Ms. Hernandez was a Equal Employment Opportunity Commissioner who, during her tenure as a Commissioner, was elected Executive Vice President of the National Organization for Women (NOW). A request was made of the Equal Employment Opportunity Commission (EEOC) to issue an interpretive ruling on whether or not sex is a valid occupational qualification for the position of flight

4 Page 4 attendant. Id. at 228. While the case was still pending, NOW issued a policy statement adverse to the interests of one of the parties in the case. Id. at 231. A request was made for Ms. Hernandez to disqualify herself and the request was denied. Id. Ms. Hernandez participated in the decision and the suit was brought for a violation of due process. Id. In defense, Ms. Hernandez argued that the position with NOW did not influence her decision in the matter. Id. The court held that: Regardless of the fact that Mrs. Hernandez may have already come to a decision prior to her knowledge of NOW s activities, she was not called on to actually vote on the issue until and had knowledge of NOW s activities and was considering taking the office of executive vice president. The law is clear that where a[n] interest inhibits the free exercise of the decider s mind, disqualification is an appropriate remedy. The very appearance of complete fairness on the part of Mrs. Hernandez was not present as required by law. Id. at In a similar case, an attorney for the EEOC who was deeply involved with the investigation and prosecution of a case against Sears for employment discrimination held a position as a member of the Board of Directors of the litigation arm of NOW (NOW-LDEF). EEOC v. Sears, Roebuck & Co., 504 F.Supp. 241 (N.D. Ill. 1980). During the course of investigation, NOW embarked on a publicity campaign against Sears. Id. at 247. After being apprised of the attorney s affiliation with NOW-LDEF, EEOC Chairman requested an opinion regarding the propriety of this activity from his General Counsel. Id. The opinion recommended that the attorney terminate his position with NOW-LDEF, but not his involvement with the Sears investigation. Id. After the EEOC filed its decision charging Sears with violations of law due to their employment practices, Sears challenged the decision in court alleging improprieties and abusive practices in the Sears investigation. Id. at 249. The Court held: While not a voting commissioner, [the attorney s] involvement in the Sears investigation was significant, and he exercised extremely poor judgment in accepting the directorship on the NOW-LDEF Board. The Commission should not have allowed [him] to continue working on the Sears matter once his NOW-LDEF involvement was disclosed. The decision to allow [the attorney] to continue as a key figure in the Sears investigation turns on its head the high duty of a government attorney to strive toward fairness, independence and impartiality in the official proceedings. Id. at

5 Page 5 Further, the courts have reasoned that [a] finding of self-interest sufficient to set aside a municipal action need not be based upon actual proof of dishonesty, but may be warranted whenever a public official, by reason of personal interest in a matter, is placed in a situation of temptation to serve his or her own purposes. Clark v. City of Hermosa Beach, 48 Cal.App.4th 1152, 1170 (1996) citing 4 McQuillin, The Law of Municipal Corporations (3d ed. rev. 1992) 13.35, pp and [i]t is fundamental that both unfairness and the appearance of unfairness should be avoided. Wherever there may be reasonable suspicion of unfairness, it is best to disqualify. American Cyanamid Co., supra at 767 citing Prejudice and the Administrative Process, 59 Nw.U.L.Rev. 216, 231(1964). Congregation Beth El is entitled to fair hearing before the LPC on its application for the proposed project. Here, BAHA has taken an adverse position to the applicant before LPC on the subject of the FEIR certification. This very subject will come before the LPC and it will be required to review and provide comments to the ZAB, comments which the ZAB must consider in its determination on the adequacy of the FEIR. This certification is a necessary prerequisite to and closely intertwined with the adjudicatory decision pending before the LPC and the ZAB. In addition, the LPC will function in an adjudicatory role regarding the Congregation s permit to alter the designated landmark site. Due to the fact that Commissioners Morse, Olson, and O Malley have been members of the Board of Directors and Commissioner Jones was a staff member of BAHA during the period that BAHA took these positions, their participation in the advisory and adjudicatory decisions of LPC with regard to the Congregation s project would present a conflict of interest. As the cases reflect, it is not necessary that the Commissioners be involved in the formulation of the BAHA comment adverse to the Congregation or that actual bias on the part of each Commissioner be demonstrated. Instead, the cases hold that a mere affiliation or even plans of a future affiliation, with an organization which has taken a public position on the subject of the decision before the Commission, and knowledge of that position, is sufficient to disqualify those Commissioners affiliated with the organization from making that decision. Given BAHA s public opposition to the adequacy of the EIR, including its specific reference to insufficient disclosing [of] the decisions and recommendations made by the LPC, and Commissioners Morse, Olson, O Malley and Jones position with BAHA during this period, these Commissioners must disqualify themselves from the decision regarding the Congregation s project in order to provide the Congregation with a fair hearing. In addition, in the future, these Commissioners may not participate in any LPC decisions involving a matter on which BAHA has taken a position. Even if the Commissioners resign their positions on BAHA, they will be disqualified for any decision which BAHA took a position on while they were on the Board or staff.