Truth Tahoe: Do District 5 county supervisor candidates face recusal in future Meyers Area Plan discussions?
May 30, 2018
The subject of recusal for Meyers Area Plan discussions and decisions is a hot topic among the candidates for El Dorado County District 5 supervisor. But whether or not owning a home within or near the plan area is a conflict of interest depends on who you ask.
At a recent candidate forum hosted by the Tahoe Regional Young Professionals, there was a lot of back and forth among candidates about incumbent Sue Novasel recusing herself from participating in decisions on the Meyers Area Plan.
For the first time since 1993, the Meyers Area Plan updates land uses; revises zoning, building and sign design standards; and identifies measures and proposed projects to improve recreation opportunities, transportation, community vitality and the environment for the roughly 669 acres of the community. The plan was approved by the Tahoe Regional Planning Agency Governing Board at the end of February, more than two months after being adopted by the county board. The county board approved the plan once more on March 20.
Back in 2015, Novasel reached out to the California Fair Political Practices Commission to ask whether she should recuse herself from these discussions. Novasel and her husband own a home within the Meyers Area Plan as well as commercial property.
“The FPPC is the agency charged with responsibility for addressing such conflict of interest.”
— Michael Ciccozzi,El Dorado County Counsel
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The FPPC said that due to Novasel's "real property interest" located within the area plan "decisions regarding the plan foreseeably affect your interests in a material way." The FPPC determined she could not participate in making decisions or use her position to influence decisions.
Novasel maintains that the recusal was based on the fact she owns both residential and commercial property. She argues that other candidates who own a residential property within the Meyers Area Plan also would have to recuse themselves from these decisions should they win her seat.
Though the letter from the FPPC points to Novasel and her husband's 23-percent ownership of a parcel within the commercial strip of the Meyers Area Plan, which amounts to a fair market value of $161,000, it is not clear from the letter if the ownership of a home also factored into the agency's decision.
The FPPC told the Tribune it could not clarify this point, noting that the "legal division can only offer advice in their advice letters when asked by a public official or entity," according to FPPC Communications Director Jay Wierenga.
"Personal property such as a home is not required to be filed on one's SEI (Form 700). However, one's personal property can be a potential conflict of interest and all public officials should know that," said Wierenga.
Brian Hildreth, a political and election attorney based in Sacramento, agreed that the letter was not clear on whether both the commercial and residential properties factored into the FPPC's decision on Novasel, but noted that there could be a potential conflict for other candidates.
"Residential property is an independent basis for a conflict of interest analysis/finding," wrote Hildreth in an email. "So candidates living in or near the boundaries likely would have conflict of interest issues on the basis of ownership of their residences."
Candidate Kenny Curtzwiler, who lost to Novasel back in 2014, has been vocal about the negative impact he believes Novasel's recusal has had on Meyers' representation at the county level.
"Sue has stated, quite falsely I might add, that I and others who own a house in the Meyers Plan area would have to recuse themselves. She has specifically pointed to me several times in public and that is quite unbecoming of her," wrote Curtzwiler in an email to local media outlets asking whether the subject would be investigated.
"She has to recuse herself due to her real property commercial investment that she would benefit financially if it was rezoned. Where my house is located is not within an area that is going to be rezoned, that area is in the commercial strip only."
Candidate Jeffrey Spencer also disputes Novasel's claims that he would have a conflict of interest over the Meyers Area Plan.
"For one, my house is not within the plan area," said Spencer. "The litmus test here is whether the public official would realize economic gain from their decision, more than that of the general public."
Spencer lives outside of the Meyers Area Plan and more than 500 feet from the boundary. However, according to the FPPC, the former "500-foot rule" for conflicts of interest changed in 2015 and is no longer a "hard and fast red line."
"So, we have had a case where something far outside 500 feet still led to a conflict, while others are within 500 feet and do not lead to a conflict. It's much more of a case by case analysis, generally speaking," said FPPC's Wierenga.
Candidate Norma Santiago lives within the city of South Lake Tahoe.
"Just because you live in the area doesn't mean you recuse yourself," said Santiago. "The whole thing about recusal and any kind of decision making process is whether you receive financial benefit from it."
Ultimately, it's unclear if any of the candidates would have to recuse themselves if elected.
El Dorado County Counsel Michael Ciccozzi said he would advise whoever takes the District 5 seat to reach out to the FPPC to determine if there is a conflict of interest.
"The FPPC is the agency charged with responsibility for addressing such conflict of interest," said Ciccozzi.
Truth Tahoe is a recurring series that investigates commonly heard questions or claims in the community. To submit a question, email firstname.lastname@example.org.
CORRECTION: This article incorrectly reported that the Meyers Area Plan was to be sent back for a final vote by the El Dorado County Board of Supervisors. The plan was in fact approved for a second time by the board on March 20.
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