Conflict of Interest: Should Laura Miller Recuse Herself From PD-15 Matters?

Two weeks ago, District 13 council member Jennifer Staubach Gates debated rival candidate and former Dallas Mayor Laura Miller at a luncheon hosted by the Dallas Builders Association. The event was live-streamed and later posted by CandysDirt.com. About 20 minutes into the recording, the topic of PD-15 was raised. (Planned Development district between Preston Tower and Athena on Northwest Highway).

The proposed updating of the area’s decades-old governing document has been one of two zoning issues at the center of this campaign. In mid-February, I pointed out that Laura Miller’s ownership of an Athena condo would constitute a financial conflict from which she’d have to recuse herself.

At the debate, Gates pointed out the conflict to Miller. Here is Miller’s response:

[The city of Dallas’ ethics code says,] “If you are involved financially in a situation that’s voted on by the Dallas City Council, where you will personally be making money where other people will not be making money but you are personally involved and will make money from it, then you have a financial conflict of interest …

My living in the area plan area and having a rental unit that we bought for my mother-in-law before she passed away has nothing to do with the code of ethics and any financial conflict of interest. I do not have a conflict of interest nor would I be or will I be recusing myself from any vote involving zoning in the area.”

According to Miller’s own words, “you have a financial conflict of interest” if “you will personally be making money where other people will not be making money.” Whether redevelopment is good, bad or indifferent to surrounding property values, that trajectory will be influenced by city hall’s vote.

Steve Long, SMU’s Maguire Chair of Ethics wrote that using Aristotle’s definition of truth, “I’m puzzled by the candidate’s response because it appears to violate this basic tenet of truth-telling.” He continued, “If she is making a profit from a rental unit then her conclusion makes no sense.”

Mayor Mike Rawlings echoes this sentiment, “I think that your assessment of the situation is absolutely correct.” (more from Rawlings further down)

Going back in time, Councilwoman Jennifer Gates recused herself from Transwestern’s Laurel apartments on the corner of Preston Road and Northwest Highway. In that deal, global real estate firm JLL (who bought The Staubach Company in 2008) was handling the land transaction.

Dallas’ ethics rules are quite clear.  There are two versions of the rules to help citizen comprehension – legalese and plain English. On the first page of the plain English version it states:

A city official or employee cannot take any action that would affect the financial interests of themselves, their clients, their outside employers, or any business that the city official has a relationship with. For example, you cannot approve a city project that would affect the value of real estate that you own.

Delving into the legalese version there are specifics:

Were Laura Miller to win the District 13 city council seat, she would be subject to:

SEC. 12A-3. IMPROPER ECONOMIC INTEREST.

(a)Economic interests affected. To avoid the appearance and risk of impropriety, a city official or employee shall not take any official action that the city official or employee knows is likely to affect particularly the economic interests of:

(1) the city official or employee; (emphasis mine)

(g) Disclosure of conflicts.

(1) Any applicant seeking city council, city plan commission, board of adjustment, or landmark commission approval on any zoning application shall file a disclosure statement along with the zoning application at the time of application.

(2) The disclosure statement must name any city official or employee known by the zoning applicant to have a conflict of interest in the matter …”

In “g” above, zoning case applicants must file a disclosure statement naming any “city official or employee known by the applicant to have a conflict of interest”.  In PD-15, a zoning “applicant” would be the owners of Preston Place, Diplomat and potentially Royal Orleans.

Listed below in SEC. 12A-12.1 titled Recusal and Disclosure are the rules for city officials to follow when recusing themselves after discovering a conflict.

SEC. 12A-12.1.RECUSAL AND DISCLOSURE.

(a) General rule. A city official or employee whose conduct or action on a matter would violate any section in Article II of this chapter must recuse themselves. From the time that the conflict is recognized, the city official or employee shall:

(1) Immediately refrain from further participation in the matter … and

(2)promptly file with the city secretary a written statement disclosing the conflict …

(b) Additional recusal and disclosure requirements. In addition to the requirements of Subsection (a):

(8)  a city councilmember shall promptly disclose that member’s conflict to the city council and shall not be present during any discussion or voting on the matter.  (Ord. 30391, eff. 7/1/17)

Armed with this, I approached many current and former Dallas politicians, city ethics representatives, and city attorneys about the contradiction between Miller’s statement and the city ethics code. None would comment publicly, except Mayor Mike Rawlings. Some couldn’t comment due to their own conflicts, but the vast majority just didn’t want to get involved. (Insert a comforting “evil flourishes while good men do nothing” quote and I’ll add “how ‘good’ are those who do nothing?)”

“There is no question the city’s enforcement procedures regarding ethics violations creates a way for people to justify their behavior”, said Rawlings. “I also think that your assessment of the situation is absolutely right. I’ve checked with city attorneys and they believe there is a conflict of interest for anybody that is in a situation such as this. Jennifer (Gates) has been very cautious in recusing herself in any issue involving JLL.”

Another who would comment on the record is Stephanie Martin, Assistant Professor of Political Communication at SMU and co-author of Visual Ethics: A Guide for Journalists, Photographers and Filmmakers.

“People confuse ethics and morality,” Martin said. “Morality is more about knowing the difference between right and wrong. Ethics is about behavior—it has to do with the actions people take. It is often easier to talk about morals because we’re speaking in the abstract. Ethics require courage.”

The problem with ethics in Dallas government is that it’s voluntary and almost always retroactive.  City employees can seek advice from the ethics commission, but even a klaxon-call of impropriety can be freely ignored. Typically, only after a violation has occurred, does a citizen file a complaint. And then, in the case of council members, punishment is decided by the city council itself after the ethics commission has heard the case and ruled.

Dr. Martin continued by saying that politics is, by nature, deal making. Candidates seek votes and choose sides. Ethics standards are necessary, but for them to have meaning, ethics requires elected officials and candidates for office to actually behave in ways that bring these values to life.

In 2017, District 14 council member Philip Kingston was found to have violated city ethics when he filmed an invitation to a fundraiser in his City Hall office (a no-no). Kingston didn’t even bother showing up to his hearing and didn’t take down the video until after the hearing nor issue any kind of apology until the city council was discussing punishment. Punishment wound up being ethics training and a reprimand.

Today, April 16, Kingston finds himself again before the ethics commission. An ethics complaint was filed because Kingston didn’t recuse himself from a council vote on Accessory Dwelling Units (ADU) being approved for the neighborhood he lives in. Once ADUs were approved, Kingston filed paperwork for his own ADU.

Kingston’s latest ethics complaint mirrors Miller’s potential ethics violation. Exchange “ADU” for “PD-15” and “lives in” for “owns property in” and Miller’s future may be foreshadowed.

The way Dallas handles ethics, with no preemptive enforcement and weak punishment, enables “crime” that pays. Judging by the signs in and around the Pink Wall, voters looking to Miller to tamp development are rooting for her means to justify their ends.

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Remember:  High-rises, HOAs, and renovation are my beat. But I also appreciate modern and historical architecture balanced against the YIMBY movement. In 2016, 2017 and 2018, the National Association of Real Estate Editors recognized my writing with three Bronze (2016, 2017, 2018) and two Silver (2016, 2017) awards.  Have a story to tell or a marriage proposal to make?  Shoot me an email [email protected]. Be sure to look for me on Facebook and Twitter. You won’t find me, but you’re welcome to look.