Neighborhood Leader Files Ethics Complaint

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Mary Ingle

Land Development Code Advisory Group Member Neslund accused of failing to register as lobbyist

Updated Friday July 25, 2014 9:55am to link recording of statements made at press conference
Updated Friday, August 15, 2014 8:15pm

Update: The Ethics Review Commission met the evening of Tuesday, August 12, 2014. After spending more than an hour and a half in executive session, the Commission heard testimony from the complainant’s attorney; Fred Lewis, from respondent Melissa Neslund; and from her attorney, Casey Dobson of Scott Douglass & McConnico LLP. After hearing testimony the Commission members asked questions, debated matters, and on the motion of Commissioner James Ruiz, seconded by Commissioner Dennis Speight, voted 4-2 to dismiss the complaint. Voting in favor of the motion were Commissioners Ruiz, Speight, Austin Kaplan, and Peter Einhorn. Voting no were Commissioners Donna Beth McCormick and Velva Price.

Mary Ingle
Mary Ingle

The president of the Austin Neighborhoods Council, acting as an individual, lodged a Sworn Complaint Filed by Mary Ingle July 24, 2014 with the City of Austin alleging that an appointed member of the Land Development Code Advisory Group failed to register as a lobbyist.

The complaint names Melissa Neslund, a senior associate and project director for land use and entitlements with Bury Inc., a consulting firm founded by professional engineer Paul J. Bury III in 1984, according to the firm’s website.

The Austin City Council approved the establishment of the Advisory Group December 6, 2012, “to assist in the development of a new Land Development Code per the Imagine Austin Comprehensive Plan.” The minutes for City Council Agenda Item 74 of December 6, 2012 state the resolution specifically prohibited members “who are registered or required to register as a lobbyist under City Code Chapter 4-8 or who are employed by a person registered or required to register under that chapter.”

The Austin City Clerk’s website lists the names of 65 lobbyists registered with the city. That list does not contain Neslund’s name or the name of anyone else The Austin Bulldog could identify as working for Bury Inc.

In a e-mail responding to The Austin Bulldog’s request for comment, Neslund provided a written statement, as follows:

Melissa Neslund
Melissa Neslund

“I am not a lobbyist (registered or unregistered), and I do not undertake in lobbying activities. My role at Bury is to support real estate industry clients through the City’s land development process.  At no time during that process do I lobby or solicit support for my projects from any City official. If I (or my firm) are working on a project that requires lobbying, we refer our clients to a land use attorney.

“Additionally, related to the make-up of the (Citizens Advisory Group) membership, the Resolution adopted by Council (20121206-074) states, ‘Members should be selected based on expertise in the fields of urban planning (my background), architecture, household affordability, neighborhoods, construction, project review and permitting (also my background), environmental protection and sustainability or other fields.’ I was appointed to this committee because of my land use and permitting expertise, and I do not intend to resign or step down from the (Citizens Advisory Group) due to this unfounded claim.”

Fred Lewis
Fred Lewis

Austin attorney Fred Lewis provided free legal assistance to Ingle in drafting and filing the complaint against Neslund.

Provided a copy of Neslund’s statement, Lewis said, “I think Ms. Neslund’s arguments are sophistry. She describes herself in the Melissa Neslund Profile on LinkedIn.com as essentially a lobbyist, an admission against interest: “Representing developers through the zoning and entitlement processes throughout Central Texas; tracking and responding to code and ordinance amendments being processed through the jurisdictions within the region….”

“This is lobbying, both in common meaning and legally. She fulfills the City’s lobbying definition because she is representing clients to directly or indirectly influence an official (which includes city staff) on a municipal question, which is defined broadly as any recommendation, regulation, or policy,” Lewis said.

“A lobbyist should not serve on a city committee because they represent two masters: the public interest as an appointed public member and her lobby clients’ financial interests. That is a classic conflict of interest between public duties and private interests,” Lewis said.

What the law says

City Code Chapter 4-8-11 states, “A person who lobbies in violation of a provision of this chapter, or who shall knowingly obstruct or prevent compliance with this chapter, or who shall fail to meet the reporting provisions of this chapter shall be guilty of a Class C misdemeanor.”

Such complaints are handled by the City of Austin’s appointed Ethics Review Commission, which operates in accordance with City Code Chapter 2-7-41 to accept complaints and conduct hearings.

The City Code requiring lobbyists to register has a provision in it that may be key in whether Neslund will be found to have violated the code by not registering.

Chapter 4-8-2(6) Defines Lobby or Lobbying to mean: “the solicitation of a City official, by private interview, postal or telephonic communications, or any other means other than public expression at a meeting of City officials open to the public under Chapter 551 (Open Meetings Act) of the Texas Government Code, directly or indirectly by a person in an effort to influence or persuade the City official to favor or oppose, recommend or not recommend, vote for or against, or to take action or refrain from taking action on a municipal question. The term lobby or lobbying shall not include a mere request for information or an inquiry about a municipal question, matters, or a procedure or communication to a City official which is incidental to other employment not for purpose of lobbying.” (Italics added for emphasis.)

Along with a copy of the sworn complaint attorney Lewis provided copies of the agendas for five meetings of the Austin City Council, one meeting of the Zoning and Platting Commission, and one meeting of the Board of Adjustment. Each agenda shows that Melissa Neslund was listed as the representative for a property owner.

So the crux of the matter appears to be whether Neslund, in fact, lobbied with any city official that did not involve whatever she may have said during the course of these posted public meetings.

Lewis said, “When she is down there with city staff trying to get them to recommend or approve some parcel for zoning, platting or whatever, she is lobbying. She is directly or indirectly trying to influence city officials. It’s lobbying if you are paid or compensated for it. It is lobbying under the law in my opinion and we need to have an investigation and hearing.”

In addition, Lewis said that aside from this particular complaint, the City Code needs to be tightened.

“We need to change the law so people can’t make these kinds of arguments, however weak. We ought to clarify the law so those who want to misunderstand can no longer misunderstand.”

What’s driving this complaint?

Ingle and Lewis were accompanied by more than a dozen neighborhood representatives at the press conference this afternoon to announce the complaint. Most of them expressed strong beliefs that the Land Development Code Advisory Group is stacked with members who represent people with a strong profit motive and hardly any representation to protect the interests of neighborhoods in preserving the quality of life they’re fighting to maintain.

The Press Release Issued by Mary Ingle July 24, 2014, which Ingle read to the assembled group, states, “By filing the complaint, I am trying to signal what is symptomatically wrong with our city’s land planning and development process. … The composition of this group is almost exclusively from members of the real estate industry to the virtual exclusion of neighborhood advocates. Only one of the 11 members of the group can be characterized as speaking for neighborhood interests. Too many of the others either have financial ties to (the) real estate industry or motives to please the City staff.”

“Older core neighborhoods are being radically transformed by profit-driven developers given almost a free hand by City staff to demolish existing affordable homes and replace them with less affordable structures not compatible with neighborhoods,” Ingle said.

Although Ingle’s sworn complaint named only Neslund, Ingle said, “an investigation of business relationships of other members of the (Advisory Group) should commence.”

Many of those attending said they had been attending public meetings of the Advisory Group and were dismayed by the direction it’s taking and its perceived lack of attention to neighborhood concerns.

Gilberto Rivera, who chairs the City of Austin’s Community Development Commission, noted that unlike the members of many designated city boards and commissions, members of the Land Development Code Advisory Group were exempted from having to file Statements of Financial Interest, as required by City Code Chapter 2-7-72(C).

Daniel Llanes
Daniel Llanes

Daniel Llanes, a Sector 6 representative on the Austin Neighborhoods Council, said the Advisory Group “needs to include all stakeholders—not just the ones profiting from development.”

Llanes also criticized the way the Advisory Group was formed. Seven of its 11 members were appointed by the City Council and four were appointed by City Manager Marc Ott, he said, adding that the city manager is an employee and “should not be participating in making appointments to a policymaking board.”

Susana Almanza
Susana Almanza

Susana Almanza of PODER, a candidate running for City Council in District 3, said the Land Development Code rewrite is being “fast tracked so it will be in place before the next council, which will have neighborhood representation.” The new council will take office in January.

Steve Speir, a board member of the Better Austin Today Political Action Committee, said in his view the Advisory Group is headed in the direction of trying to abolish neighborhood plans.

Joan Bartz, who was involved in founding the Austin Neighborhoods Council in 1973 and is still active, said, “Imagine Austin provided the key to open Pandora’s Box of the Land Development Code rewrite.”

David King, second vice president of Austin Neighborhoods Council, said, “Affordability is at stake. The Advisory Group must be free of conflicts of interest.”

King said that the population of Austin can be doubled under the city’s existing zoning. “It’s all about the money—not about preserving neighborhoods.”

Link: Ethics Complaint Press Conference Recording (32:55 minutes)