Is it a conflict of interest to have a large-scale developer on a city’s planning advisory committee?
For context, here is what Halifax says about conflict of interest in the city’s Public Appointment Policy:
Applicants should consider whether they have a real or perceived conflict of interest with a board, including direct or indirect pecuniary interest with HRM. As part of the application process applicants must identify and disclose any actual or potential conflicts of interest they may have. Potential conflicts of interest may include … Serving as a lobbyist for an industry, interest or organization that may be affected by the outcome of considerations of the board.
I put the question to Joe Metlege, who is president of two companies: JONO Developments and Templeton Properties, and who was recently appointed to Halifax’s District 7 & 8 Planning Advisory Committee (PAC). This is one of five Community Council Advisory Committees, comprised of citizens and councillors. The PAC makes recommendations to council on development applications.
“It is a rather offensive question,” Metlege says. “I sit on several boards. It is an altruistic thing. I am a citizen and have just as much of a right to have a say as others.”
He makes several arguments against the idea that he could be in a conflict-of-interest situation. Most significantly, he says he would not participate in any discussion on one of his company’s proposals.
“If me or my company is going forward with an application, absolutely I will recuse myself because it could be seen that my opinion will sway a decision that will influence my livelihood,” Metlege says.
He says he would do this even though he believes he has a right to make a case for his fellow committee members in favour of one of his own proposals. “I could still make a case that I have a right to make my case,” he says.
But city policy would not actually allow that. In addition to the above-noted requirement that PAC applicants state potential conflict of interest, PAC members must withdraw from cases in which they are directly involved:
Should a conflict of interest arise with any member of the Committee, he/she is responsible for declaring the conflict of interest and withdrawing from his/her place for the duration of the matter. Conflict of interest may involve:
— Indirect financial interest as a shareholder, official, or employee in any matter of the Committee’s concern
— Direct financial interest of a family member or spouse
Metlege also points out that it is common for professionals with interest in the subject matter to be on advisory groups, and it is inevitable that some of them will have financial or other interests in the city’s decisions in those matters. With PACs, he says that “the last group of appointed members also included a developer. Appointments have included engineers and architects. If the question [of conflict of interest] should be asked of anyone it’s them; they work for all the developers.”
And “all the developers” are, of course, the ones submitting the proposals that Metlege’s PAC reviews. According to the Planning Advisory Committee Orientation Toolkit, the purpose of the group is to facilitate citizen involvement in the planning process and improve development outcomes. More specifically:
The main agenda items on a PAC agenda are development proposals and will include a presentation by an HRM staff planner, followed by a discussion by the PAC. After considering the proposal, the Committee will pass a motion in the form of a recommendation, which accompanies a staff report and staff recommendation to Community Council.
Community council then considers the staff and PAC recommendations and makes its own decision, which then goes to regional council.
Metlege is correct in pointing out that engineers, architects and other professionals also have potential conflict of interest. Presumably, they all have significant financial considerations at stake, indirectly or.
At the moment, the committee consists of two city councillors (Jennifer Watts and Waye Mason), the director of communications with the Downtown Halifax Business Commission, a fitness instructor, an economist, a program manager with Efficiency Nova Scotia, the executive director of the Africville Heritage Trust, a land-use planner, an administrator at Saint Mary’s University, and Metlege.
Conceivably, several of those individuals bring their own interests and biases to the table. And some of them may in fact be financial – though of an entirely different scale than with Metlege. Others on the committee do work that has little or nothing to do with development or planning, and are probably there either to learn something or because they feel compelled to be active, engaged citizens.
It’s an odd mix. Is this a citizen group or a group of experts?
Metledge argues that this is the whole point. “It’s not a conflict of interest if it’s citizen backed,” he says. “Every citizen is bringing forward their best opinions on enhancement of the city. We are there to give council assistance with what the temperature of the city is. It’s a matter of personal opinions, subjective dialogue.”
Jennifer Watts, the councillor for District 8 and therefore part of the committee, offers a similar perspective and also points out that Metlege is not the first developer to be on the committee. “It brings a certain set of skills,” she says. “I think it indicates a maturity in our process. It’s helpful to hear all their comments.”
So the theory is that you have citizens who may be novices on the issues and professionals who guide with expert advice. “There’s conflict of interest and there’s subject-matter expertise,” Metlege says. He feels that a good developer is a mediator between the pure efficiency of engineers and the cost-prohibitive idealism of architects. It’s a complex balancing act that he can help laypersons understand.
Citizen or stakeholder?
But there is a problem with Metlege’s theory, according to Dalhousie law professor Meinhard Doelle. It boils down the confusion over Metlege’s role on the PAC. “Is he there as a citizen or as a stakeholder?” Doelle asks.
These are two different roles that should be kept separate. If the goal is to get expert input, a committee of stakeholders should be engaged. If you do that you have to be broadly inclusive and fair, giving all stakeholders an equal say. That could include business owners in the area of a proposed project, renters in the area, home or property owners, the developer in question, other institutions operating in the area, etc.
With a citizen’s advisory group, which is what a PAC is supposed to be, including some stakeholders and not others introduces the potential for conflict of interest, which opens up a range of unfortunate scenarios. “It’s complicated as to what extent approvals of certain developments set precedents,” Doelle says.
The PAC’s job is, after all, to make a recommendation to Council. Staff may also be influenced by the PAC. (It’s also conceivable that laypersons become unduly influenced by experts.)
The PAC’s recommendations can include amending city planning policy on massing, height, materials, traffic, overall design and fit, in order to allow certain developments. Each of these can become precedents used to allow future, similar developments, which may in the long-term benefit a developer sitting on the committee.
“Or, if he has an interest in another development in the same area, he may have an interest in preventing the [proposed] development,” Doelle says. “You may not realize there’s a conflict until years later.”
Metlege argues that the PAC is “not a legislating body” and only deals with specific project proposals, so his influence could not extend to policy or have any far-ranging implications. “We don’t make any policy. What does another developer’s application have to do with setting planning principals?”
However, the city’s own orientation on being a PAC member says differently. It reads:
Through their recommendation, PACs have the potential to influence:
— The decision of Community Council
— The content of development agreements
— Planning policy
Given that the city perceives influence – and common sense tells us that even just making recommendations in an official capacity can be interpreted as power or authority – raising the potential for conflict of interest is indeed a fair question. The Halifax Examiner doesn’t ask it as a challenge to Metlege’s integrity. It is a question of appropriate checks and balances.
The reality is that the standard for conflict of interest is often lower among municipal governments than at other levels. Legally, it is very difficult to prove conflict of interest with municipal councillors. The counterpoint from municipalities is usually the same one we hear here: “We need a diversity of perspectives.”
Metlege is right in pointing out that there are other stakeholders sitting on the PAC, albeit of a different financial scope. Meinhard Doelle suggests that if the PAC is a citizen committee, it can always invite experts like Metlege (or an engineer or an architect as the case may require) to come speak to it. “Developers already have a lot of chances to influence city planning in several different ways,” he says.
On the other hand, if stakeholder expertise is what’s required, that could be a separate committee.
At the very least, Halifax should require each member of its PACs to provide a written statement of any potential conflict of interest, and those statements should be made public. At the moment, no biographical information about the PAC members is provided on its website.