Observers of Salem government have questioned the legality of the composition of the city’s Planning Commission.  The Commission is the group that makes recommendations to the City Council on how the community is to grow.
“Nobody who has any economic interest in the outcome of a development project should have a vote on that particular project.  That just makes sense,” says Attorney Mike Swaim, former Salem mayor (1997 – 2002).  At a recent Progressive Film Series event Swaim voiced concern about the makeup of the Planning Commission, which is currently manned by several people involved in real estate-related businesses.

Swaim’s argument has a basis in law.   The City of Salem’s Revised Code of March 2009 agrees with him.

The Revised Code makes certain requirements of Salem’s seven appointed Planning Commissioners, including that no more than one member may be engaged in the same kind of business, trade or profession as any other.  The Code, in other words, provides rules to ensure Commissioners bring a variety of backgrounds and experiences to their decisions.

The Code is also specific that the Commission should be manned by economically disinterested people, particularly in connection with commercial development: “No more than one member shall be engaged principally in the buying, selling, or developing of real estate for profit as an individual or be a member of any corporation that is engaged principally in the buying, selling, or developing of real estate for profit.”

However, when Salem Weekly reviewed the applications filed by members currently serving on the Planning Commission, it looks as if five of the seven are involved heavily in real estate
Three of these were approved since the 2009 Revised Code was written: Jim Lewis was reappointed in 2010, Mitch Schmidtke appointed in 2010, and Rich Fry in 2011.   The three were added despite the existing memberships of Darr Goss and Nathan Levin.

Lewis is Executive Director of the Salem Board of Realtors, Schmidtke is president of an aboveground tank manufacturer that serves, among other industries, the construction industry and Fry listed Stephanie Fry Construction as his employer and described himself as someone with a “residential and commercial development background.”

Goss is a real estate appraiser and real estate consultant and Levin lists his profession as “Commercial Real Estate” on the application, and mentions his service on the Salem Board of Realtors.
Former City Council members tell Salem Weekly that when observations about the apparent disconnect from Salem law and practice were brought forward in past years, Salem City Attorney Randall Tosh essentially dismissed them.  They say that Tosh defined “real estate” narrowly, so that working in related fields – sometimes fields many would describe as “real estate” itself – were, in his judgment, unrelated.

Former City Council member Kasia Quillinan, recently appointed to Salem’s Parks and Recreation Advisory Board relates, “Tosh said a mortgage broker could serve on the Commission because, in his legal opinion, the broker wasn’t involved in real estate.”  Quillinan feels that Tosh’s position does not reflect the spirit of the law.  “The Planning Commission is supposed to represent the community at large, and not just rubber stamp every development that comes along.”
Sources say Tosh maintained people with personal intimate knowledge of development were vital as Commissioners because they understood the intricacies of the issues the Planning Commission ruled on.

Mike Swaim understands arguments in favor of including people who have real estate savvy.  “It’s not unreasonable to think that growth-oriented people have valuable expertise to lend the Planning Commission.  I agree that those with an economic interest should be invited to participate – they should just not be voting members.  Instead they should use their persuasive powers to convince less-involved people of what’s best for the city.”

The Salem Revised Code enumerates ethics rules for public officials, including detailed definitions of “conflict of interest.”  It prohibits “any action or any decision or recommendation by a person acting in a capacity as a public official, the effect of which would be to the private benefit or detriment of the person or the person’s relative or any business with which the person or the person’s relative is associated.”  The Code requires that if any public official is aware of a conflict of interest, he or she must report this to the appointing authority, in this case, the City Council.

Every year serving Commissioners must sign a declaration swearing they are in compliance with ethics guidelines, including that they have no involvement with issues they vote on.

Salem Weekly asked the City for clarification about the apparent inconsistencies between policy and practice, but officials were not given adequate time to respond before publication.  Their comments will be featured in a future issue.
Two Salem Planning Commission positions are currently open.  Tom Gallagher’s and David Fox’s terms both ended in December of 2011.  Gallagher and Fox are the two members of the Commission least involved in real estate.
We asked Mike Swaim how the Planning Commission might represent the interests of a broader range of Salem residents.

“You have to gain the agreement of the majority of the City Council first, that having diversity is the way to go, and issues like this are best discussed publically.   Then you need to develop public interest and make sure ordinary citizens know they are welcome to participate on the Planning Commission.  And if they start applying, they must be prepared to understand that whenever change comes, and especially when it impinges on the economic interests of some, they may face strong and sometimes vocal opposition.”

If a citizen believes the rules of Salem’s Revised Code are being violated, they can file a grievance with the Oregon Government Ethics Commission.