Ethics opinion issued on planning board member

By David Hohendorf

The Birmingham Board of Ethics issued a five-page advisory opinion Tuesday, July 12, basically concluding that a Birmingham Planning Board member did not violate portions of the city ethics code in his handling of a private business client's development application with the city, while at the same time the opinion serves as a cautionary warning to others of how private business dealings must be handled while holding a position within city government.

The board of ethics advisory opinion was requested by Birmingham City Manager Tom Markus, who in discussions at an earlier meeting and in filed documents stressed that he was not making a formal complaint of conflict of interest on the part of planning board member Bert Koseck, also an architect, with the city manager noting that he considers Koseck a valued member of the planning board.

Markus formally requested the advisory opinion in late April of this year due to the fact that planning board member Koseck was hired as the architect working on behalf of Cannelle Patisserie, located at 159 N. Eton Street in the city's Rail District.

Koseck on a number of occasions dealt with members of the city planning department relative to possible changes to the property and possible site plan review by planning and engineering department workers. During some of those conversations, the request for an advisory opinion said that Koseck told assistant city manager Jana Ecker and planning department member Brooks Cowan that he had showed his plans to fellow planning board members Scott Clein and Jason Emerine, who are also both civil engineers. Koseck, according to documents filed by Markus, also told city workers that the two planning board members agreed with his plans for the N. Eton Street site, raising the ethics question of whether he was attempting to influence staff for a favorable decision because of his position on the planning board.

The advisory opinion filing by Markus also noted that Koseck on occasion acted in an angry manner and raised his voice with staff members when discussing the plans for his development client, which could also be a violation of the city's ethics ordinance.

The request to the ethics board cited possible applicable sections of the city ethics code.

In response to the advisory opinion request, Koseck said he did not think the Cannelle plans would come before the planning board, but at the same time he sought opinions from board members Clein and Emerine because they were also civil engineers and at no point did he lobby for their support of his project. Both Clein and Emerine supplied letters to the board attesting to Koseck's ethical behavior in the past and stated that at no point did Koseck pressure them for support of the site plans but instead were only asked their opinion as civil engineers on an issue relative to the site for Cannelle Patisserie.

Koseck said that in working with the city employees, he experienced repeated delays and became frustrated but rejected a description of himself as having “lost his temper.”

The opinion issued by the three-person ethics board – attorneys James Robb, John Schrot, Jr. and Sophie Fierro-Share – basically dealt with how Koseck interacted with city staff members and whether there was a violation of the ethics ordinance when he spoke with other members of the planning board.

On the issue of Koseck's behavior, the advisory opinion concluded that the city ethics ordinance only addressed behavior of city officials and employees and Koseck, when dealing with city employees, was not acting in his capacity as a board member but in a private capacity. The opinion also noted “that does not mean we condone his behavior.” The opinion noted that had Koseck been acting in a capacity of representing the city, his behavior would amount to a violation of the ethics ordinance.

Relative to the second issue, the advisory opinion said there was “no indication that this matter was going to come before the planning board” and “no indication that Mr. Koseck lobbied Mr. Clein or Mr. Emerine to take or not take any action should the matter come before the planning board.” Therefore, the board determined there was no violation of the ethics code.

In closing, the opinion cautioned that “board members who choose to take on private work that involves the city must be constantly vigilant to conduct themselves ethically every step of the way.”