Ethics board rejects one charge, dismisses second
The Birmingham Board of Ethics met on Wednesday, June 12 to hear two complaints from Clinton Baller, a Birmingham resident, against city manager Joe Valentine and mayor Patty Bordman, over their involvement with the winning bid and proposals for the new N. Old Woodward Bates project, but the ethics board dismissed the complaint against Valentine as a similar case is pending in federal district court, and the board did not find Bordman had acted inappropriately, while at the same time calling out Baller for verbally attacking her at meetings and in social media as inappropriate actions.
Chairman James Robb noted that Baller had first filed two cases addressed against the city's ad hoc paring committee and the city commission, both of which were dismissed because ethics complaints cannot be filed against boards. Baller, who has consistently complained about the direction the city commission has taken with the Woodward Bates project, then refiled his complaints against Valentine and Bordman.
Birmingham city commissioners approved a resolution to put a parking structure bond proposal in the amount of $57.4 million before voters on the August 6 election at their meeting on Monday, May 6, in order to secure financing for demolition and rebuilding of a new parking structure to replace the N. Old Woodward structure and an extension of Bates Street, the first phase of the Woodward Bates project that will include development of other multi use buildings.
The city issued a request for proposal (RFP) in November 2017, to redevelop the N. Old Woodward parking structure and create an extension for Bates Street. After a lengthy process, two finalists emerged, TIR Equities of Birmingham, represented by Ara Darakjian, and Woodward Bates Partners, to redevelop the N. Old Woodward parking atructure with more parking, an extension of Bates Street, a liner of retail along the new street, a mixed use building comprising residential and office space, and a park. Woodward Bates Partners consists of Victor Saroki of Saroki Architecture in Birmingham; Paul Robertson of Robertson Brothers Homes in Bloomfield Hills; John Rakolta Jr., of Walbridge in Detroit, and Ron Boji of The Boji Group in Lansing.
The parcel of land, approximately four acres in the city’s central business district, consists of the current N. Old Woodward parking garage, a neighboring surface parking lot and adjacent parcels. The city’s objective had been to solicit creative and innovative development plans from qualified developers that will extend Bates Street from Willits to N. Old Woodward, connecting the north and south parts of Birmingham, to redevelop the remainder of the site by constructing a new parking structure that will provide a minimum of 380 parking spaces in addition to replacing the 770 parking spaces currently on the N. Old Woodward / Bates Street site, plus adding residential, commercial and/or mixed uses in order to create an activated, pedestrian-oriented urban streetscape while also providing public access to the Rouge River and Booth Park to the north.
The city commission chose Woodward Bates Partners in June 2018, and have proceeded with predevelopment agreements, development agreements, and approval of the bond resolution vote.
Darakjian filed suit, still pending, in federal court against the city of Birmingham, Valentine and commissioner Mark Nickita in March 2019, asserting that Saroki helped Birmingham develop its RFP, thus depriving Darakjian and TIR of their constitutional right to due process. The lawsuit stated that the city’s selection of the Woodward Bates Partneers was the “culmination of an arbitrary, capricious, unfair, and unjust bidder selection process, tainted by, among other things, favoritism and conflicts of interest.”
The city of Birmingham denied the allegations and requested a jury trial, attorney costs and denial of damages to Darakjian.
The ethics complaint against Valentine asserted that by city manager “approving the issuance of an RFP for the development of Bates Street that was written with substantial assistance from architect Victor Saroki and his firm, and then allowed a development group that includes Mr. Saroki and his firm to respond to the RFP...is in direct violation of … the Ethics Ordinance...'City officials and employees are bound to observe in their official acts the highest standards of ethical conduct.'”
Robb said he had looked at the complaint carefully, “but there is a federal lawsuit that is pretty much the same.” He noted that as the aggrieved party, TIR and/or Darakjian should have come to the ethics board for an opinion before filing its lawsuit, and that two weeks after it was filed, Baller filed his complaint. As it is still before U.S. District Court, Robb said, “I intend to vote to dismiss this case without prejudice – to allow Mr. Baller to bring this case back at a later date – until the court decision is through all of its appeals or there is a settlement. I'm not convinced that it is the role of this body to determine jurisdiction for district court. I don't think it's good government for us to interfere.”
Fellow board members John Shrot Jr. and Sophie Fierro-Share agreed, as did Michael Sullivan, attorney for Valentine.
Baller, who argued he was representing the residents of Birmingham, disagreed.
“I'm asking the question of whether Saroki Architecture was ethical to bid on a proposal it was hired to draft,” he said. “I think time is of the essence. A decision bears on a project – a vote is scheduled for August 6. One way or the other, voters want to know. What would be the harm in making a decision?”
Robb said what concerned him was that he could not anticipate the impact of the ethics board's ruling. “This was not raised until eight months after the contract was let. The ethics complaint came up during the lawsuit.”
“The suggestion that my complaint is in timing with the lawsuit or that I'm in cahoots with the developer,” Baller huffed back. “Another resident pointed it out to me.”
Fierro-Share asked if the federal court decision could affect the election. Robb answered that he didn't know, but if TIR wants to enjoin the election, they can, but the board shouldn't make any decision. The board concurred, voting 3-0 to dismiss without prejudice.
In Baller's complaint against Bordman, in reference to her and her fellow commissioners' votes in favor of a vote in August to approve a bond to finance the parking garage, he asserted that it was a violation of Birmingham's ethics ordinance that “city officials are bound to observe in their official acts the highest standards of ethical conduct,” and that by accepting the offer of a private developer to help defray the cost of a special election, “Mayor Bordman has created the appearance that the city has lost complete independence or impartiality.”
First, the ethics board clarified to Baller that in her role as mayor, once the commission votes in favor of anything, it is mandated that the city's mayor sign an agreement or contract on behalf of the city, so it was not an ethical violation for her to sign the commission-approved development agreement as Baller had alleged.
“By ordinance, I see even if you don't vote for something, you are required to sign an agreement,” Robb noted.
“It's the timing of when the (development) agreement was given to the city commission,” Baller countered. “Did they have time to read it? It's dense. Did they have time to consider everything?”
Sullivan, also representing Bordman, responded, “That seems to be a procedural issue, not an ethics complaint.”
“I can't see any facts in dispute,” Robb agreed.
In her written response to the complaint, Bordman noted that as a commissioner, she is one vote of seven; as mayor, which is a largely ceremonial title, she has no no authority to sign any contract on behalf of the city of Birmingham without the vote of the commission. Further, she noted, by Baller filing the ethics complaint against her and not other members of the commission, “I believe that Clinton Baller is furthering his threat to defeat my candidacy by claiming that I violated the ethics ordinance, and that he is also attempting to coerce me to vote against the project.”
“In the complaint, it states in part that there was an offer for the developers to defray the costs of a special election,” Shrot said.
“Do you know of any special offer like that?” Baller asked. “Perhaps the city suggested that, but I can't imagine that, so I assume the developer threw that in...I think by accepting this provision of the contract, it certainly raised my eyebrows. It certainly dropped my respect for mayor Bordman. If she undermined the respect of even a small amount of residents, there is a problem. They should avoid giving the appearance of impropriety. I think it did. The private developer is in it for money – the public is potentially losing money. It doesn't pass the smell test.”
“Could the city have made the developer pay for improvements on roads,” Robb asked.
“They could have insisted on a lot of things they didn't,” Baller said.
“I don't understand how it's an obstacle to the election,” Robb asked. He asked how Bordman lost her impartiality by voting for the city to hold this election with the developer offsetting the cost. Baller went on a tangent how Bordman limited his – and others – comments at a commission meeting to two minutes, and he was angered to the point he was going to put it on YouTube, and only didn't because “I didn't like the angle, it wouldn't have made good YouTube.”
Shrot pointed out to Baller that he said the developer was in it for profit, and asked him if most residents assume that a successful developer is in business to make a profit. Baller answered “yes.” Shrot followed up by asking if the city's citizenry knew that the city was getting a break on expenses associated with a special election “is undermining the confidence of Birmingham as related to its government.” Baller said confidence would be undermined, but acknowledged that there was nothing wrong with the contract providing for the developers to pay for other items in the development project.
The board asked city attorney Tim Currier if he knew if private underwriting of election costs had happened before and if it was legal.
“I know it's happened before in other towns. I don't know if it's happened before in Birmingham,” Currier said.
“I don't believe there is any semblance of ethical violation,” Shrot said of Bordman. I don't think there is anything presented that showed any ethical violation or loss of impartiality, or any action on her part that showed loss on the part of the city, or that at any time she didn't act in highest ethical standards.
“I have a concern about the exchange between Baller and the mayor, and I hope they are resolved,” he noted.
“I agree. I think it's unfortunate at any time she should be made uncomfortable or unsafe,” Fierro-Share said of threats to future elections for Bordman that Baller acknowledged he made towards her.
Robb concurred, and the board voted 3-0 against Baller's complaint.