Concerns of Conflict of Interest and Michael Fiocco
A letter from Paul Konove to the Pittsboro Board of Commissioners and Mayor:
April 14, 2014
CONCERNS REGARDING APPEARANCE OF CONFLICT OF INTEREST OF A PITTSBORO TOWN COMMISSIONER
This letter represents my personal opinion and does not represent any organization. I have, over the years, served as a board member of a state-wide non- profit organization, on the Chatham County Green Building and Sustainable Energy Advisory Board (GBASE) and I am presently serving on the board of the Home Builders Association of Durham, Orange and Chatham County. I am also an owner of a residential construction business. In those capacities, I have had to be aware of and adhere to conflict of interest policies of these organizations as they pertain to the potential appearance of direct or indirect financial conflict of interest in issues that might come up for decisions as part of these board’s business.
From these experiences, I am aware that if there was either the potential or appearance of a conflict of interest it was my responsibility to make that known to other board members and, if appropriate, to any public members present at a board meeting. In fact as part of the GBASE board it was my duty to disclose “any actual or possible conflict of interest …..”
Because of my visible involvement in recent months with the Town Boards deliberations concerning the possibility of enacting rezoning, some people in the community have spoken to me of their concerns of a Town Board member’s potential conflict of interest or the appearance of such. To be honest, I share their concerns.
These concerns resulted from actions and comments by Commissioner Michael Fiocco over the last nearly 9 months. It would seem that from his actions that his opinion was fixed prior to hearing all information so that any decision on his part might be considered biased, which if so, should prevent him from participating in a vote on this matter. Below includes a partial list of observations and actions of Commissioner Fiocco since August 2013.
- Following the August 24 town work session, Commissioner Fiocco proposed the creation of an official two board member and staff committee to review and make recommendations concerning the proposed Chatham Park master plan. As was pointed out by others directly to Mr. Fiocco and town staff, the resultant meetings that he participated in were clearly violations of the NC Open Meetings statute. Setting up this closed committee process specifically ignored the staff recommendation to hire an outside objective consulting firm to review the master plan proposal and advise the town board. Another recommendation of the staff was to develop a citizen input process to review the master plan proposal. Commissioner Fiocco specifically agreed that would be one of the tasks of the subcommittee, which he proceeded to ignore.
- The resulting “comments” of this closed subcommittee on the master plan included a substantial revision of the approval process for the development that, contrary to the requirements of the Planned Development District’s PDD, would allow the developer two years to develop plan elements. How this came about behind closed doors between two board members, no one knows and the public has never been told. This work was not presented to the entire board for their public deliberation and review. Instead, the subcommittee’s comments were sent directly to the developer as though they were actually representing the entire board.
- The proposed revised master plan and rezoning that was posted for the first time on Friday November 22, three days prior to the November 25 board meeting appears to have been worked out in secret between Commissioner Fiocco and the developers, with little or no professional town staff input. When it was clear that his four fellow members of the town board wanted to table this secretly revised master plan and rezoning request and seek outside consultant review, Fiocco attempted to brow beat them into changing their votes and ultimately was the only board member to vote against bringing in outside consultants as originally proposed by the town’s professional staff.
- When the consultant presented their findings to the Board, including the statement that the plan had “significant deficiencies” … that “would preclude making a well-informed decision about such a significant project…” Commissioner Fiocco made no attempt to obtain a better understanding concerning the rationale for the consultant’s recommendations. Instead, he proceeded to filibuster the board’s discussion by both defending the previous master plan he worked out in the closed meeting and by attacking the consultant’s recommendations requiring minimal design guidelines and other requirements before allowing the developers to start commercial and residential properties before the final master plan and development agreement has been approved. Ironically, he implied these recommendations would slow down the start of the development, despite the fact that his own effort preventing outside professional advice to the board had actually delayed the review process. Moreover, Commissioner Fiocco’s behavior at the conclusion of the Lawrence Group presentation displayed a profound disrespect for the objective professional work of this nationally recognized planning firm.
- At the following meeting upon hearing a response from the developers’, Commissioner Fiocco proceeded to act in a way that made it appear he was lobbying directly for their interests and in many ways against citizen concerns, specifically attempting to push as many design requirements as possible out of the list to be in the final master plan to instead be delayed by two years as part of individual small area plans for residential communities that would be developed, thus, essentially preventing a town board review and approval of a comprehensive design of this development.
- Additionally, the consultant stated “… this PDD master Plan must provide a greater narrative and supporting goals/benchmarks to ensure that the hand-off from this high level document to small area plan to development plan provides a predictable framework of excellence.. “ Upon learning that Commissioner Fiocco works for a company that contracts with developers and also has a real estate license, one might think that his development experience would help make this kind of master plan happen. Instead, there has been a continual interest on his part to support no more clarity than presently exists in the Master Plan regarding this issue while promoting the Developer’s details to come much later in the small area plan time frame. It raised the questions of whose interests are best being served.
- Although there are more issues I could bring up, my last points relates to the Developers interest in having 500 foot long cul de sac where according to the consultant report – a walk-able community should have cul de sac no longer than 300 feet. Again, with Mr. Fiocco’s experience in development one might think he could have made the suggestion to support the consultant’s length with the caveat that in certain situation as site issues arise that the developer could ask for a variance on length of particular cul de sacs. Instead he supported keeping the Developers 500 foot long request. Supporting the town’s stated interest in walk-able again seemed to be not his priority.
Having experience in the construction industry, I know that elected officials who are developer friendly work to make the development approval process less restrictive and streamlined. But rather than working to change planning regulations and procedures in a general manner, Commissioner Fiocco appears to see his role as working to provide a specific developer as much flexibility as possible, restrict most environmental, traffic and design standards to each small area plan, when in most cases it is the interests of the town and citizens to require the developer to address these issues comprehensively as part of required elements of an overall master, which would be then legally binding in the development agreement. Additionally flexibility would then be up to a decision of the town board, rather than to the developers alone. Commissioner Fiocco’s transparent lobbying for the interests of the developers is not only highly unusual, but truly troubling.
So when a town board member, who works for a commercial and residential development engineering firm and operates his own local real estate firm, acts and speaks on a consistent and persistent basis for the benefit of a major outside developer, it is not surprising that local citizens begin to wonder why his allegiance does not appear to be for those of the town and its residents. Regardless of whether Commissioner Fiocco has any actual conflicts of interest or not, his actions and words concerning the Chatham Park Investors proposal clearly give that appearance.
As I mentioned at the beginning of this statement, if I were to serve on a similar decision making body as the Town of Pittsboro Board of Commissioners, and I were in the position to make a decision about a development of any size, that I might have even a small possibility of working with, I would feel ethically responsible to either recuse myself from a vote or publicly state that I would not benefit financially from any decision I might make and to have my statement be reviewed and decided upon by the board that I am serving.
I would like to presume that Commissioners Fiocco’s heart is in the right place, and there has not been any back room agreements with Chatham Park Investors, nor winks and nods that may have occurred, but having attended nearly every town board meeting since August, I have yet to hear any discussion of a possible conflict of interest on his part.
I would suggest that Commissioner Fiocco, in order to prevent the appearance of potential conflict of interest, should either recuse himself from voting on this matter or at the very least of his own accord agree in writing or through any manner that the Town of Pittsboro allows, state that for the duration of his serving as a Pittsboro Town Board member and for a minimum of 5 years following his service or following the commencement of Chatham Park Investors construction, he, family members, or the company he works for will not benefit monetarily from Chatham Park Investors or Chatham Park Development.
Carolina Country Builders