Special/Signature Issues » A Closer Look

Legal Opinion

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TO: Bob Mills, Chairman, Planning Commission

THRU: Norman B. Sales

City Attorney

FROM: Jan T. Reid, Asst. City Attorney II

DATE: January 25, 2008

RE: Request for legal opinion-State and Local Government Conflict of Interest Act



Issue Presented

You have asked for a legal opinion interpreting the State and Local Government Conflict of Interests Act. (the "Act"). Specifically, you have asked whether the fact that your architectural firm, Commonwealth Architects, performs architectural services for the Commonwealth of Virginia and Virginia Commonwealth University ( the "State") prohibits you as a member of the Planning Commission (the "Commission") from commenting and voting on the Downtown Master Plan (the "Plan") when it comes before the Commission for a public hearing.



Factual Scenario

You have advised the Law Department that Commonwealth Architects currently has multiple projects underway with the State and that you personally have an ownership interest in that firm that exceeds three percent of the total equity of the business. As the Chairman of the Commission you are in a position to comment on and vote for the approval or disapproval of the Plan during the public hearing process. The Plan includes recommendations on hundreds of buildings including the State buildings on which Commonwealth Architects is providing professional services.



Applicable Law-State's Immunity

First of all, it is important to clarify the legal relationship between a local government and state government on land use matters. In Virginia, the law on whether or not the State's buildings are exempt from local zoning regulations, including compliance with a local master plan adopted by the local governing body, has been the subject of several Attorney General opinions. The opinions have consistently concluded that, "absent a statutory exception, zoning and planning regulations apply to facilities of governmental bodies of equal or lesser authority than the local government seeking to apply them…" In a 1980 Attorney General opinion which answered the specific question of whether or not the University of Virginia was exempt from mandatory compliance with a local comprehensive plan, the Attorney General was consistent with prior opinions when he stated that, "Under the terms of 15.1-457, the State and its agencies are obligated to coordinate with local governments in connection with their comprehensive plans, but their ultimate independence from local regulation is unaltered." The Attorney General concluded that the University of Virginia was exempt from mandatory compliance with the locality's comprehensive plan.



The State's exemption from compliance with the City's proposed Plan is integral in determining whether or not any Commission member could have a conflict of interest under the Act as it relates to land use transactions before the Commission on State owned property.



Applicable Law-Conflicts of Interest

A member of the Commission is an "officer" as defined in the Act. The Code of the City of Richmond list the planning commission as one of the agencies to which financial disclosure applies under the Act. A public hearing and vote held by the Commission on the Plan would constitute a "transaction" as defined in the Act. The Act is therefore applicable in those circumstances where an individual Commission member by definition has a "personal interest" in a business that may realize a reasonably foreseeable direct or indirect benefit or detriment as a result of the action of the agency considering the transaction (i.e., the Planning Commission).

Analysis/Conclusion

You have confirmed that your business, Commonwealth Architects, in which your personal ownership interest exceeds three percent of the total equity of the firm, currently has professional services contracts with the State for several of its buildings. As a result of that level of ownership you have a "personal interest" in Commonwealth Architects under the Act. You also currently serve as Chairman of the Commission. A proposed Plan covering fifteen City identified neighborhoods on each side of the James River will soon come before the Commission for final action. Although the State owns a number of the buildings located within the area encompassed by the Plan, none of those State buildings must comply with any of the recommendations outlined in the Plan due to the State's immunity from land use controls by a local government.

It is therefore my opinion that your professional business relationship with the State for architectural services does not present a conflict of interest under the Act that would require you to abstain from participating in discussions and voting on the Plan. This conclusion is based primarily on the fact that no action of the Commission has a binding legal effect on any State owned buildings and as a result of that limitation, your firm, Commonwealth Architects, does not stand to realize a reasonably foreseeable direct or indirect benefit or detriment as a result of the Commission's actions.

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