Friday, December 3, 2010

Why the City Council must replace the Nuisance Hearing Board with an appointed board.

The City Council is certainly under a lot of heat for tough budgetary decisions they have made of late. However it is time for the council to "grow a pair" and stop being led around by the nose by city legal and certain city employees and address the serious Conflict of Interest Issue with the current Nuisance Board and its process.

On December 17th, yet another batch of properties will go before the Nuisance Board and in a 'farce' that repeats itself  monthly, all off those properties will be added to the city demolition roles. From the initial "rubber stamping by the Urban Conservator Larry Harris , who has an architecture degree but not a degree in historic preservation ,or a background in it, to a Nuisance Board that has members who are 'hostile' to preservation and have a clear conflict of interest, this process must be changed in 2011 or the council  'could'  find itself in a position of legally defending the current process in court and the potential loss of Federal funding should it be found the process is flawed.

The 15 day notification cycle the city uses to notify Community groups is inadequate. Many neighborhood groups because of their bylaw structure provide for  a 30 day meeting notice for a 'special meetings' which is often required to take a vote to tender an "official position" by the neighborhood. The notification does not allow enough time for neighborhoods to conduct proper research for the section 106 review process which must be completed prior to the Nuisance Board Hearing (typically less than 10 days). There is no reason for a "rush to judgment" on these properties which are not 'emergency situations' and often have no structural issues.

There is no 'appeal' process to Mr Harris's determinations regarding section 106 eligibility. The process MUST provide an avenue of appeal at the city level on these determination since the State OHPO defers to the city to make these determinations as part of its programmatic agreement. That 'fix' would be easy by setting up an appeal process to the Historic Conservation Board  (which SHOULD be required to review the Urban Conservators determinations anyway) before they are even sent to the Nuisance Board Hearing.

While it is the position of Mr Cervey and the city solicitors office there is no conflict with the Nuisance Board being composed of city employees. That ethical conflict is clear and two fold.

One; some members of the Nuisance Board are in direct supervisory positions over the very inspectors who brings the cases before the board. They maintain a familiar, typical employee/supervisor relationship. Whether or not a board member would 'side' with the inspector over a  property owner at this hearing, the fact that they are in a direct supervisory position and make policy decisions, should render them ineligible to serve on this board.

Two; The board enjoys indirect compensation as result of their determinations. Case in point. The determinations of the Nuisance Board results in that property being placed on a demolition list. That demolition list (a demonstration need) is a component in the City of Cincinnati obtaining Federal and State conduited funds like  NSP and CDBG funding for  for activities including demolition. One component of those awarded funds is  a percentage for "administration and processing" In other words,  a portion of the monies are expended on salaries for the department. There is a 'vested interest' in the Nuisance Board continuing to add properties to the demo list because it directly impacts federal funding WHICH helps pay their salaries.

The answer here is simple and its clear. It will not be popular with Mr Cervay, Mr Cunningham or Mr Minihan and the city solicitors office (who wish this issue would 'go away') but the Nuisance Board MUST be a non compensated, appointed board of non-city employees who have no financial interest in the determinations they make, nor share a working relationship with the inspectors bringing the cases before that board. The fact that the inspectors have daily access to the Nuisance Board members, could discuss the issue prior to the hearing in private and directly influence the outcome is a serious situation that can not be allowed.

The Council can continue to "ignore" these conflicts of interest issues and potential ethics violation but they run the risk that Preservationists and neighborhoods 'fed up' with this "good old boy rubber stamp process" , will take their concerns to the State of Ohio Ethics Commission and file a request for review and opinion on the current makeup of the Nuisance Board and the Conflict of Interest Issues and potential notification violations as they relate to the Ohio Sunshine laws.

Further the city exposes itself to potential losses of Federal  Funding. With the new Congress one can expect greater oversight of the way federal funds are spent and those would include those funds dispersed by HUD through the CDBG program and review of how NSP  (stimulus finds) were actually spent. The lack of Transparency of the city process could result in the denial or severe restriction of how CDBG funding is spent. The city already is under a "cloud of suspicion" regarding the Section 106 review process with HUD , the added issue of governmental conflicts of interest of the Nuisance Board, an integral part of the process,could result in much needed federal funds being withheld or even denied, at a time when the city desperately needs them to offset local budget shortfalls.

More importantly by having an 'independent board' the city lessens the chance of lawsuits that could result due to Board decisions being challenged under the current conflicts of interest that 'appears' to exist with the current board. It is always wise to avoid any appearance of conflicts of interest (real or imagined) and an appointed board is a good step towards the transparency taxpayers expect

The council need to get its "head out of the sand" and start taking steps that restore the transparency of this process and remove the widely held belief that city officials  are ineffective and corrupt. Either they do it or some State or Federal entity will ultimately wind up taking that decision out of their hands.

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