Foulkrod recuses self from Village hearing; Merriott next?
CARBONDALE, Colorado – Carbondale Trustee John Foulkrod has agreed to step away from further deliberations regarding the Village at Crystal River development proposal, bowing to public pressure over a conflict of interest question.
“I will recuse myself due to this perceived conflict of interest,” Foulkrod said at the start of a Tuesday night Board of Trustees discussion about his business relationship with Briston Peterson, who is separately involved with the Village development, and whether that constitutes a conflict.
Foulkrod said he still does not view his situation, which he disclosed when the public hearing on the project opened more than a year ago, as a conflict.
“To the members of this community who have voted for me and trusted me to make decisions that will affect their town and its future, I apologize that I will no longer be a part of this process,” he said.
Meanwhile, an attorney for the developer, Eric Gross, has raised a second conflict question involving Carbondale Trustee Frosty Merriott.
Gross argued at the Tuesday meeting that Merriott’s participation in a regular Wednesday morning segment on local public radio station KDNK, called “the trustees’ report,” violates rules on engaging in conversations outside the formal public hearing.
Because land-use hearings are a quasi-judicial proceeding, decision-makers should not have so-called “ex parte” conversations that could taint the process, Gross said.
On several occasions over the past year, he said the Village project has been a topic of Merriott’s radio chats with DJs Bob Schultz and Jeff Dickinson.
Those conversations have included opinions expressed by Merriott about certain aspects of the proposal, Gross alleged.
“We find it completely unacceptable, and we object to it formally, on the record,” Gross advised the board. “Ex parte contact is looked upon by the courts as problematic, and we believe this to be a serious breach of due process to the applicant.”
Town attorney Mark Hamilton said he agrees that any conversations by trustees outside the formal public hearing can be a problem.
“It’s a valid question,” he said. “There is the potential for a legal claim of due process violation.”
However, in the case of Merriott’s radio discussions, it would depend on what was discussed and if that prejudiced his opinion in any way, Hamilton said. Also, if those conversations could be entered into the formal record, it could resolve the issue, he said.
The town board continued the public hearing for the Village project until March 22, when the new conflict of interest question will be discussed.
“I’m a firm believer in process, and in people having their say,” Mayor Stacey Bernot said. “I applaud John (Foulkrod) for stepping aside, but that was a question of a substantial indirect conflict of interest. This is a very different issue.
“We have to be fair to the process, and to sweep this under the rug would not do it any justice,” she said.
Trustee Merriott reserved comment on the matter during Tuesday night’s meeting.
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