City Council members expressed concern this week that an attorney who serves on an advisory board now represents a developer whose project he voted on two months ago.
Nil Ghosh, who works for Morningstar Law Group, serves on the Durham City-County Planning Commission. On Monday night he spoke at a City Council meeting in favor of the proposed Rollingdale townhouse development off N.C. 54.
In April, Ghosh voted to recommend the council support the project when the City-County Planning Commission voted 9-5 in favor of rezoning the property from residential suburban to planned development residential.
Residents of the nearby Woodcroft neighborhood spoke at Monday's council meeting against the 25-townhouse project, which is also near Jordan High School, Woodcroft Shopping Center and The Streets at Southpoint mall.
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Ghosh, the only person to speak in favor of the project, said he was hired by the developer, Landon Lovelace of Underfoot Engineering, Inc., after the planning commission's April 10 vote.
Even so, City Council member Charlie Reece and others questioned if it was a conflict of interest and against the code of ethics for planning commission members to vote in favor of a project and then speak in favor of it as a private attorney. The commission is a 14-member board appointed by the City Council and Board of County Commissioners and has advisory power only; it does not approve or deny projects, only makes recommendations to the council and county commissioners. Ghosh was appointed by the county.
Ghosh isn't the only lawyer on the planning commission. Commissioner Tom Miller, also a lawyer, said he and Ghosh often have different perspectives but that Ghosh is a "straight shooter."
Reece, who is also a lawyer, said he doesn't believe Ghosh had any improper intent or motive in representing his client, but said the problem is public perception.
"I don’t want anyone to think, to ever think, that you’re making a decision because you think maybe someone will hire you to do a job later on," Reece told Ghosh.
"I don’t think it's appropriate for members of the council to see you come up to the podium and having read your written comments from when you decided on the planning commission," Reece said.
Council member DeDreana Freeman asked City Attorney Patrick Baker if there was any policy on planning commissioners working for developers on a project that came before the commission.
"When you serve on a commission there is a code of ethics and that would include a conflict of interest," Baker said.
Baker said he wanted to meet with Ghosh to determine when he was contacted by the developer and then review the code of ethics again to see if there was a conflict of interest in representing the developer after voting on the rezoning as a planning commissioner.
"Are you in the habit of accepting cases you’ve already presided on?" asked Freeman, who served on the planning commission before being elected to the council last year.
Ghosh said he didn't recuse himself from the planning commission vote on the rezoning in April because Underfoot Engineering, Inc., which applied for the rezoning, was not a client then. Ghosh said Underfoot had never been a client of his in the past.
"You didn’t see it as a conflict of interest? Advising the City Council on the case and representing the developer?" Freeman asked.
Ghosh said no, that there was no overlap between his vote and being hired to represent the developer.
Baker said he needs to know more about when Ghosh was contacted by the developer before saying there was any ethics violation.
"I will tell you just off the cuff, I’ve got concerns about this," Baker said. "It never dawned on me that a planning commissioner would be representing an applicant in front of the council, regardless of when the representation occurred."
Freeman suggested they continue the public hearing on the Rollingdale project until the next council meeting, so Baker has time to meet with Ghosh. Council members also want a bigger tree buffer between Rollingdale and Woodcroft.
But the council has started its summer recess. It won't have a regular meeting again until Monday, Aug. 6, so will take up the issue then.
Efforts to reach Ghosh for comment Tuesday and Wednesday were unsuccessful.
Baker said Wednesday that he met briefly with Ghosh earlier in the day and that Ghosh reiterated his comments before council about the developer not hiring him until after the commission vote.
"I'm not done with my review," Baker said.