Ryan Woods
Nearly 10 months ago I sent you and email regarding what I believed to be ethics violations on part of the staff and those appointed to the planning commission. You have ignored my request to have those individuals as it relates to the Family Search project mention in ALL meetings that they are a member of the LDS Church (if they are a member).
I know there has been a clear cut violation of ethics as it relates to staff and those appointed to review the two Family Search applications. There are remedies and penalties for ignoring this very specific and important portion of the law and it will be critical for me to present these violations if this matter ends up before the courts (which I am fully prepared to do! 4th District and 10th Circuit Court of Appeals)
I sent you an email indicating I do not believe those appointed to the board of appeals can hear my appeal if they are members of the LDS Church, I am very serious about this. You may think otherwise, but I believe my position in a court of law will overcome any personal opinions one might have otherwise to suggest that members of the LDS Church can hear matters about the LDS Church and not be biases, prejudiced, impartial and completely open minded.
Below you will find just a few items regarding ethics that I have researched. I will not go into depth as I have in my notes, but give you the essence of what I am currently researching as it relates to ethics. The substance of what I am researching and what I will provide you in this email forms a basis for a court appeal. I have only begun my research and will continue to look at local, state and federal case law. I have added a couple of narratives which I believe you should very carefully read because it will require action on your part prior to my appeal hearing.
Ethics and the adherence to the ethics law is critical and should never be taken lightly or ignored or dismissed as unimportant! I have made this an issue at the city of Lehi for 6 months and NO ONE to date seems to think this is important. In fact, EVERYONE at the City of Lehi, Staff and those appointed or elected have made a conscious choice to NOT adhere to the ethics standards as set forth by the State of Utah as required.
This will be a very costly mistake, I assure you. This sort of behavior spills over into DRC and the Planning Commissions who seem to believe adherence to the law is optional and that all the laws (codes) as set forth by the city are merely suggestions. I believe a clear cut review of the attitudes and behaviors expressed by the staff and those who serve on the planning commission will in the end be detrimental to the application (s) as presented by the LDS Church through their architects.
Bill Conley
801 867 7227
Here is an email I sent to you in December, 2015. Cut and paste the link below or simply click on the link.
Original email
http://lehicityut.blogspot.com/2015/12/email-to-r-woods-and-m-cummings.html
Here is a bit of my research (not in any type of order).
Handbook for Appeal Authorities
An Appeal Authority
must know both know the law and possess the courage to follow it.
4. Ethics
10-9a-701
Brief
summary – ANY PERSONAL INTEREST WHICH
CREATES A CONFLICT WITH YOUR PUBLIC DUTIES MUST BE DISCLOSED IN OPEN MEETING
AND SUBMITTED TO THE MUNICIPALITY ANNUALLY IN A DISCLOSURE FORM.
Comment: I
have not done this and I have been on the Board of Adjustments for over 2
years. I would like to see the forms
submitted by other Board of Adjustment members and I would like them to publically
state they are a member (if they are) of the organization (the LDS Church) that
they will be hearing the appeal about.. (LDS Church Members hearing a matter
about the LDS Church). In my opinion, a conflict of interest exist whereas the
members CANNOT be subjective are prejudice and are biases that make it
difficult to carry out their fiduciary duties of being impartial and of clear
mind and thought.
Comment: I
have repeatedly instructed the staff at DRC and the Planning Commissioners
publically acknowledge when it comes to this particular project involving the
LDS Church( if they are a member) to publically announce their membership in
the church and whether or not they are or have ever been a worthy of a Temple
recommend (do they currently hold a Temple recommend?). This has not been done and it is my opinion,
this is a clear violation of ethics.
The fairness
doctrine REQUIRES you to abstain from voting on a matter on which you have a
material conflict of interest.
Comment: These
members if they are LDS have a material conflict of interest and MUST abstain
from voting. I will go into this a little later in this brief.
“A court has
no interest in making land use decisions for you; it is interested in making
sure that you followed due process, obeyed the laws as written, and protected
the rights of everyone involved.”
“The Appeal
Authority’s decision MUST be based on the law as it is written in the land use
ordinance.”
“State law
gives municipalities the option of adopting their own standards of review for
appeals. The municipality could require the Appeal Authority to hear all
evidence, including new evidence, and decide the matter as if the land use
authority had not already made a determination of rights. This is called “de
novo”. Alternately, the municipality could require the Appeal Authority to
review an appeal ‘on the record”, to look only at what had been submitted to
the land use authority, and then decide.
Many
jurisdictions will allow the review authority to take new evidence and hear the
matter as if it were new or “de novo”. If the city or town does not designate
the standard of review, state law assumes that the review will be ‘de novo”. As such, the appeal authority would be required
to allow the appellant and the respondent to submit any relevant evidence on
the appeal.”
“Whether the
Appeal Authority takes new evidence or relies only on the record before the
land use authority, the appeal authority must determine whether the decision of
the land use authority was a correct interpretation and application of the law.
This correctness standard is found in 10-9a-707(3)
Key, in
processing each petition separately it is necessary that the appeal authority
cite the law, have the minutes reflect that the law was read and interpreted to
the facts of the case, and that every effort was made to apply the law as
written to the specific situation.
Comment: EACH PETITION (EACH APPEAL, SEPERATELY )
Your job on
these appeals is very limited in scope. You should ask:
1 Did the
land use authority correctly interpret the factual situation?
2 Did the
land use authority correctly apply the law as written?
3 Did the
land use authority violate due process or any rule of procedure?
10-9a-706
Each appeal
authority shall respect the due process rights of each of the participants.
The appeal authority
may not ignore the law.
Your role is
to determine if the facts were interpreted correctly and whether the law was
correctly applied.
Remember:
the person making the appeal has the burden of proving that an error has been
made.
Comment: I intend to prove my case beyond a shadow of
a doubt.
Here are
some basic rules that apply if you have a Board of Adjustments.
Remember
that you are not there representing a specific neighborhood, business or
interest. Your responsibility is to protect the public good and apply the law
which has been defined in the land use ordinances and state law.
Comment: Interest = LDS Church of which you are a
member. The LDS Church is also a business of which many are members of that
business.
You are subject
to the same rules of ethics and procedures as elected officials.
List of shalts
for appeal authority member
Preview materials
for cases and take field trips when appropriate.
Comment: I would like to bring the board of appeals
members to my neighborhood and show them the area; in fact, I would like to
make this a requirement of this board of appeals hearing.
Ask
questions if you need to
Represent
the good of the community rather than the good of the few.
Community: Not the LDS Church and not staff. This is not time to placate staff, the
planning commissioners, the mayor, city administrators or any other person at
the city who also happens to be an LDS church member.
Be knowledgeable
and respectful of constitutional rights.
Become familiar
with, and respect the laws of the country, the state, and the city in which you
live
Comment: This is critically important that they are
familiar with ALL the laws of the country, state and city.
Treat others
with dignity, regardless of how you may view their issue or point of view.
Make
decisions based on the law, and good planning, rather than on public sentiment
or pressure
The shalt
nots are
Ignore the
law
Have a
closed mind to arguments or new ideas
Make up your
mind before hearing all the available information
Represent a
single point of view or base your vote on a single personal experience.
Comment: This has happened repeatedly throughout this
process. Most if not all those who have been part of this application have
looked at this from the perspective of being LDS First.
Use your
position, or information given to you as a result of your position, to benefit
yourself, friends, or family or the LDS Church.
Who sets the
agenda and runs the appeal authority meetings?
The chair is
in charge of all appeal authority meetings if it is in a board format. The
authority should have written procedures that are reviewed and a chair who is
elected by members of the appeal authority once a year.
Comment: I
have NEVER been part of a procedure of electing a chair which is required each
and every year. Whoever the chair is has not been elected but appointed and
that is not allowed. The chair MUST be elected by those sitting on the
board. This is not an appointed
position! I have no idea who the chair person is and I sit on the board of
adjustments. I have been the chair
person from time to time. It seems as
though the chair person who has not been elected is a person who shows up to
the meeting and is willing to sit as the chair for that meeting. If there is a
designated chair person, this person has been appointed and not elected and that
is not how the law is written. Before the appeal hearing I would like to
schedule an election by the current appeal board members. By not electing an appeal board chair properly,
I will use this in any defense I need to in court.
I have not
received a copy of written procedures and I have not reviewed a copy of the
written procedures as provided to me by the City of Lehi. I currently sit on
the Board of Adjustments and severed on the Board of Adjustments for 4 years in
the City of Alpine, UT.
One of your
procedures should deal with how a meeting is called. A petitioner should meet
with the clerk or recorder, or the land use staff, and fill out an application
form. The chair is then notified and he sets the date of the meeting and
everyone is notified.
Comment: The
chair sets the meeting, not the city recorder or attorney. The fact that I am
receiving correspondence from Ryan Woods and Marilyn Banasky clearly informs me
that he/she is setting the agenda of the meeting and not the chair. Any correspondence I receive as it relates to
the agenda of the meetings should be created by the chair person and may be
sent to me through the city attorney. Not the other way around. The City
Attorney and the City Recorder are not in charge, the Chair is in charge.
The chair is
the person who sets the date of the hearing, not the city recorder or the
attorney. The date of the hearing should be set by appeal board chair and may
be sent to me through the city recorder or the city attorney, not the other way
around.
The agenda
is usually determined by the staff and the chair. It is the chair’s
responsibility to make sure that the meeting is conducted in a fair, legal and
efficient manner.
Here is a
brief list of materials that should be made available to you.
Copy of your
municipality’s land use zoning ordinance and subdivision ordinance
Copy of the
UT State Code, sections Title 10, chapter 9a
Copy of the
open meetings act, Title 52, chapter 04, U.C.A.
Copy of the
municipal ethics requirements.
Established written
procedures developed by the municipality.
Definitions
Conditional
use: A conditional use is a land use that because of its unique characteristics
or potential impact on the municipality, surrounding neighbors, or adjacent
land uses, may not be compatible in some areas or may compatible only if
certain conditions are required that mitigate or eliminate the detrimental impacts.
In order for a conditional use to be considered, it must be listed as such in
the applicable zone.
Street,
collector: A Street which collects traffic from local streets and connects with
minor or major traffic arteries.
Street
local: A Street designed to provide vehicular access to abutting property and
to discourage through traffic.
Street,
minor arterial: A Street with signals at important intersections and stop signs
on the side streets, and which collect and distributes traffic to and from
collector streets.
Subdivision:
The process and the result of dividing a parcel of RAW land into smaller
buildable sites. Complete plans will eventually include streets, blocks, open
space, public areas and other improvements. A subdivision may be established
any time a new boundary line is drawn.
Trip generation:
The total number of vehicle trips produced by a specific land use or activity. It
is used to calculate traffic impact of a proposed use.
Other notes
Participation
in decision making by so many persons who may be personally affected by the
decisions presents the need for safeguards to assure that these decisions are
being made in the public interest, not the personal financial interests of
board members.
Persons
making land use regulatory decisions have an obligation to act in the public
interest. Both constitutional and statutory provisions address the
question of when a conflict exists between a decision maker’s personal
interests and public obligations.
Due process requires an impartial
decision-maker.
A fixed
opinion that is not susceptible to change may well constitute impermissible
bias, as will undisclosed ex parte communication or a close familial or
business relationship with an applicant.
Comment: Fixed opinion = LDS Church membership! Close
familiar relationship = membership in the LDS church. Membership in the LDS
church is a lifestyle. The church
encourages its members to live their lives based on the values they set forth
(e.g. what underwear they should wear (can there be anything more personal than
ones selection of underwear, if the church can dictate the type of underwear
you wear, they certainly can dictate any number of other things which forms
your lifestyle), what you should drink, eat, how you should dress, what you
should and should not read, internet sites you should not visit, dictates on
smoking, caffeine, pre-marital sex, if you are a BYU Student or have gone to
BYU, the honor code, when you go to church, who you go to church with, home
teaching, callings in the church etc. I seriously could go on and on, suffice it
to say, being a member in the LDS church is a lifestyle choice ones chooses.)
An impartial decision maker is required for quasi-judicial decisions.Comment: Impossible for an LDS church member to review an LDS church application and be impartial. (e.g. The LDS church says that you must conform to the LDS church standards or risk your salvation status and that of your family.)
With quasi-judicial land use decisions the constitutional demand for impartiality extends beyond financial conflicts to include bias (an opinion on the case that is fixed and not susceptible to change), close or associational relationships, and undisclosed ex parte communications.
Providing
that members of boards making quasi-judicial land use decisions shall not
participate in or vote on any quasi-judicial matter in a manner that would
violate affected persons’ constitutional rights to an impartial decision-maker.
The statute provides that Impermissible conflicts include, but are not limited
to, a member having a fixed opinion prior to hearing the matter that is not
susceptible to change, undisclosed ex parte communications, a close familial,
business, or other associational relationship with an affected party, or a
financial interest in the outcome of the matter.
As a general
rule, a member with a bias or conflict of interest makes that determination and
recuses him or herself. If the board making the decision is the governing
board, the member generally requests that the entire board vote to approve the
recusal. For planning boards and boards of adjustment, the member
may simply announce the recusal at the initiation of the matter.
While the focus of conflict of
interest consideration is on the decision makers, conflicts by staff members
advising the decision makers can occasionally be problematic, especially for attorneys
advising a board making land use decisions. Surveys of various jurisdictions
indicate it is very common for the city or county attorney to provide legal
advice to the boards making special and conditional use permit decisions and
variance decisions. In both of these types of quasi-judicial matters,
some 90 percent of the jurisdictions reported that the jurisdiction’s attorney
provided legal representation for the decision-making board. When
this arrangement is used, the jurisdiction’s counsel must take care to avoid
playing an active role assisting staff or advocating before the board while
also providing legal advice to the board.
Handbook for members of the State of Utah
Boards and Commissions
Ethics act
and conflicts of interest
This section
provides information on ethics requirements and potential or actual conflicts
of interest of members of boards.
Utah Code
Annotated (UCA) Title 19.
Applicable
law
By amendments
in 1989 to the Utah Public Officers and Employees Act (Ethics Act), board
members are now covered by it various provisions. The definition of Public
Officer means all elected or appointed officers of the state who occupy policy
making posts.
Conflicts of
Interest
Discussion –
Procedure
In the past,
different approaches have been taken by various members of boards when they
have had conflicts of interest. These
approaches have included:
Oral disclosure
of the conflict before discussion and then participating in the discussion but
not vote.
Oral
disclosure of the conflict at the beginning of the discussion with no participation
in discussion or the vote, or
Oral disclosure
of the conflict and physically withdrawing from the meeting when an action is
being discussed and voted upon.
What is a
conflict of interest?
One question
which often arises is what constitutes a potential conflict of interest. It is
generally considered that a potential conflict of interest is ANY direct and
immediate interest or relationship, including financial interest, with persons
or businesses regulated by or directly affected by decisions of the board, or
persons or organizations which may present request or issues before the board.
Types of
interest to be considered as potential conflicts of interest include
relationships or interest with persons, business enterprises, or non- profit,
professional, charitable, RELIGIOUS, social, educational, recreational,
environmental, public service or civic organizations.
Comment: Types of interest to be considered as
potential conflicts of interest include relationships or interest with persons,
business enterprise (LDS church is also a corporation – the corporation who is
overseeing this project and who as signed off on the special warranty deed is
The Corporation of the Presiding Bishop of the Church of Jesus Christ of
Latter-day Saints), charitable RELIEGIOUS, social, educational, environmental,
public service or civic organizations. I
believe I can make the case the LDS church, BYU and all the various entities
created by the LDS Church are a potential problem for any member of the LDS
Church hearing matters of the LDS Church.
With which
You are
connected as a member, employee, officer, owner, director, trusted, partner,
advisor or consultant.
Comment: MEMBER, OFFICER = appointed position within
the church hierarchy (e.g., Bishop, Priesthood leader of any sort etc.)
In which
You have ANY
continuing financial interest (tithing = salvation) as a creditor or through ownership
of stocks, bonds, or other securities, ownership or real property or rights in
the lands, or through a pension or retirement plan, shared income or OTHERWISE,
or which you are indebted financially (Tithing).
Comment: OTHERWISE.
I will be able to make this case as well.
Handbook for
planning commissioners
The
appearance of fairness doctrine requires you to abstain from voting on a matter
on which you have a material conflict of interest. (Personal or financial)
Material
conflict of interest
A conflict
of interest is considered to be material if a reasonable disinterested person
would take it into account in exercising judgement of making a decision. A
material personal interest is a board members personal, professional or
business interest or the personal, professional or business interest of individuals
or groups with whom a board member is closed associated, that
Have, or
appear to have, the capacity to influence the conduct of the staff member.
Material
personal interest may include:
Non-financial
interest: those that could, or could reasonably be perceived to, adversely
affect the impartiality of the person having the interest and includes;
Other interest
that may include a tendency toward favor, bias or prejudice resulting from
personal involvement with any other person or groups and situations in which
financial or other personal considerations may compromise or may have the appearance
of compromising a board members professional judgment.
Comment: I can make a clear case that being a member
of the LDS church is a clear cut violation of the ethics standard on so many
levels.
The city
needs to live to the letter of code (law) on every aspect of the Lehi City code
and not pick and choose which codes they will live to and which codes you will
ignore. You don’t get to pick and choose which codes you will enforce and which
codes you ignore. ADHERANCE TO ALL CODES IS REQUIRED, MANDATORY AND CRITICAL. Ignoring provisions of local, state and federal
codes is a violation of the law and is subject to a multitude of penalties.
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