Monday, January 18, 2016 by Jack Craver

Ethics panel dismisses complaints against Historic Landmark Commission

For the second time in recent months, the Ethics Review Commission waded into the affairs of the Historic Landmark Commission in response to a complaint from an activist.

But unlike the previous instance, the commission quickly dismissed the complaints, ruling that it did not have the jurisdiction to judge the merits of the allegations, which were made against the Historic Landmark Commission by former City Council candidate Fred McGhee.

McGhee’s complaint centered on a vote taken by the commission in August on whether to designate the Rosewood Courts public housing project as a historic landmark. During that meeting, the commission, which was composed mostly of recently appointed members, voted 3-3 on the motion to support the designation, meaning the motion failed. McGhee has brought this vote to the attention of the city’s Human Rights Commission as well, sparking a debate late last year about whether gentrification is, in fact, a human rights issue.

McGhee found the commission’s failure to approve the motion indefensible, pointing out that the same commission had in December 2013 endorsed Rosewood Court’s nomination to be on the National Register of Historic Places.

The commission in 2013 had different members, and the two votes were on distinct issues, but McGhee contends that the two votes are contradictory. The standards for the national register are even more stringent than those for local historic districts, he told the Austin Monitor. And because Rosewood Courts is a public property that is already exempt from property taxes, the typical discussion of property tax exemptions that accompanies local historic districts is not relevant.

“(N)one of the commissioners who voted against the local historic district designation – all of them new appointees with scant historic preservation experience – explained the historic preservation rationale behind their decision,” he wrote in his complaint.

McGhee further argued that the commission had failed to stand up to “misleading” information on the case presented by the city’s historic preservation officer, Steve Sadowsky, who opposed granting the historic preservation district.

“They allowed themselves to be bamboozled by a city official,” McGhee told the Monitor.

As a result of the commission’s “lack of professionalism,” McGhee argued, the city has shamefully neglected to preserve the history of neighborhoods that are home to marginalized communities in East Austin and elsewhere.

“(T)he evidence suggests that Austin’s historic preservation program has primarily become a misguided and publicly financed property tax reduction program geared for taxpayers who own high-dollar West Austin real estate,” he said in the complaint.

McGhee thus alleged a violation of section 2-7-1(A) of city code. That section refers to two sentences at the beginning of the city’s ethics ordinance, including that “public officials be independent, impartial and responsible to the people.”

Although McGhee’s complaint named every member of the Historic Landmark Commission as defendants, only three of the 11 members opposed the Rosewood Court’s landmark designation in the vote that prompted his complaint.

One of them, Commissioner Michelle Trevino, did not defend her vote but highlighted her qualification to serve on the board according to what is known as the U.S. Secretary of the Interior’s Standards and Guidelines for Archeology and Historic Preservation.

Commissioner David Whitworth similarly said little in his defense, simply voicing perplexity with the complaint. “I’m really a fish out of water in this context,” he said.

But Commissioner Arif Panju – who had already been reprimanded by the Ethics Review Commission in October for taking part in a vote on whether to grant historic preservation district status to an area in which he lives – forcefully rejected the complaint’s merits, saying that it was little more than a policy disagreement masked as an ethics complaint.

“Not having a policy outcome achieved before a commission or Council … does not give rise to a legitimate ethics violation,” he said.

Unlike in its previous affair with Panju, the Ethics Review Commission agreed with him. The wording in the code that McGhee was referencing is far too vague to be enforced, it found. Commission Chair Austin Kaplan, a public interest attorney, likened it to the preamble of the U.S. Constitution (“We the People …”), none of which is generally considered enforceable.

“I will be sure not to teach my children the preamble to the Constitution,” McGhee quipped in response.

“Well, more like you shouldn’t file a lawsuit for violating it,” replied Kaplan.

The commission also dismissed another complaint by McGhee, ruling that it did not have the jurisdiction to judge his allegation that the Historic Landmark Commission had violated Section 2-1-44 of city code by not following Robert’s Rules of Order.

McGhee nevertheless received a measure of support from one of the targets of his complaint. Terri Myers – the only current member of the Historic Landmark Commission who also served on the panel under a previous Council, and who voted in favor of creating the historic preservation district for Rosewood Courts – told the Ethics Review Commission that she agreed that some of her colleagues lacked the expertise to judge the issues presented to them.

In comments ostensibly aimed at Panju, whose consistent and ideologically based opposition to historic preservation efforts have been a source of controversy, Myers said that “the real ethics violation” is that “some of the new members have no intention of following city code.”

“We have members of the commission who are not preservation advocates, which I think is the intention of having this commission,” she added.

Speaking to the Monitor after the meeting, Panju made no apologies for his opposition to Austin’s historic preservation policies, which he said were “broken.”

“The Historic Landmark Commission is not a place for advocacy, it’s a place for policymaking,” he said. “The fact that somebody puts property rights at the top of the list, as a commissioner, is something that should be celebrated, not criticized.”

Larry D. Moore [CC BY-SA 3.0 or GFDL], via Wikimedia Commons

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Key Players & Topics In This Article

City of Austin Ethics Review Commission: The Ethics Review Commission is charged with review of, among other issues, ethics complaints leveled against City of Austin boards and commission members. They meet quarterly.

East Austin: East Austin is the quadrant of Austin that, generally speaking, is east of IH-35.

Historic Landmark Commission: The city’s Historic Landmark Commission promotes historic preservation of buildings and structures. The commission also reviews applications and permits for historic zoning and historic grants.

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