ARC board defers decision on seating developers, votes to allow public comment during board meetings

By David Pendered

The issue of whether the ARC board should seat citizen members who are developers who lead self-taxing-and-spending entities called CIDs gained additional clarity Wednesday.

The ARC again released at its monthly meeting a response that cites two legal opinions and a ruling from a former state revenue commissioner. The opinions say, essentially, developers are not precluded from serving on the board of the Atlanta Regional Commission even if they serve on a board overseeing a community improvement district.

The ARC board agreed to give itself at least another month to think through the issue. Cobb County Chairman Tim Lee urged members to deliberate, “robustly, wholeheartedly, and with quiet thought.”

Lee, in recent times, has been the subject of harshly worded criticism concerning the taxpayer funding of the future Braves stadium, as well as his relations with the development community that helped cinch the Braves deal for Cobb.

Lee helped assemble the Braves deal in collaboration with Tad Leithead, a commercial real estate advisor. Leithead’s former employer was involved with two anchors of the Cumberland business district – operating Atlanta Galleria, a mixed use development, and developing the county-owned Cobb Galleria Centre.

At the time of talks with the Braves, Leithead chaired the boards of both the ARC and the Cumberland Community Improvement District. The Cumberland CID is helping to pay for the Braves’ future SunTrust Park.

Incidentally, Leithead’s term on the ARC board expired at the end of 2013 and he wanted to stay on for another term, as a member if not as chair. His allies couldn’t muster the votes and, after months of wrangling, the board seated Minuard “Mickey” McGuire to represent Leithead’s former district – parts of Atlanta, Cobb, DeKalb and Fulton counties.

In one other aside, the ARC board voted Wednesday to approve a policy that’s intended to make it easier for the public to comment at board meetings.

The entire issue of allowing developers who serve on a CID board to serve on the ARC board is the heart of a discussion brought to a head by Fayette County Chairman Steve Brown. Brown also propelled the debate over allowing public comment at board meetings.

Brown contends that public trust in the ARC is eroded when the public sees developers serving on CIDs, where they can spend millions of taxpayer dollars to build infrastructure to promote developments, as well as on the ARC board – where they vote to set the region’s priorities for spending millions of federal transportation dollars.

According to Brown, one way to promote public confidence in the ARC is to ensure that ARC’s board is controlled by elected officials, who are accountable to their constituents. Citizen members are accountable to other board members, who vote to seat them.

Brown went to work when the ARC began devising new bylaws.

The first public discussion of the process appears to have occurred in May. The process was expected to be little more than a routine exercise needed to enable a new management structure the ARC board had authorized in 2011.

It’s been anything but routine.

Brown sent a list of eight comments about the latest bylaws proposal. The ninth comment was personal. Referring to Leithead, Brown wrote:

• “I have personally faced the wrath of the previous ARC Chairman, a CID board member with no accountability to the region’s citizens, being told that my opposition to a regional proposal would make things difficult for me. The thought of no citizen recourse to remove such ARC board members along with the enhanced centralization of power of the ARC Chairman is indefensible to any person claiming to want fairness and accountability in the system.”

To this comment, the bylaws committee responded:

• “We cannot comment on your relationship with the prior Chairman. However, if you believe that any current or future Chairman is acting in an unethical or illegal manner, the agency’s bylaws enable any member to bring an ethics complaint against that individual. Removal of an ARC member-at-large for unethical or unbecoming conduct is a matter which the General Assembly has delegated to the ARC board to adjudicate.”

Here are some pertinent portions of the letter to Brown from the bylaws committee. The committee is chaired by Buzz Ahrens, the chairman of Cherokee County’s board of commissioners:

Brown:

• “Members at Large – A CID board member cannot act as a Member at Large, providing that ‘Members at large may hold no elective or appointed public office nor be employed by any of the political subdivisions of the Area.’”

Committee:

• “You assert that a CID board member cannot serve as a member-at-large. However, this does not align with current legal opinions on this matter, as we are aware. Attached are the Attorney General’s legal opinion and an Ethics Commission legal opinion from several years ago, concerning the very question of whether CIDs’ constitute public bodies and whether their board members are considered to be public officials. These opinions hold that CIDs are not public agencies, nor are their board members considered public officials. [The ARC also released a letter from then state Revenue Commissioner Jerry Jackson.]
• “Until there is a new Attorney General opinion, new case law, or a new law which alters this status, the Atlanta Regional Commission should adhere to the standing opinions that CID’s and their board members are not public agents; and therefore, CID board members may serve as members-at-large on the ARC Board of Commissioners.”

Brown:

• “Chair – The region suffers a significant loss of accountability by having a Member at Large as the Chairman of the ARC. The region’s citizens have no recourse with a Member at Large as Chairman. Lack of trust is already a crucial issue.”

Committee:

• “Whether or not a member-at-large serving as Chairman leads to a loss of accountability is a matter we would expect board members to consider when they cast their votes for chairman. The regions’ citizens’ recourse regarding the performance of anyone serving as chairman is vested in the board members, both public and private, who elect the chairman every two years.
• “We would expect that the members will act responsibly to select a chairman (or a new chairman, if need be), who will comport himself or herself in a professional, responsible, and ethical manner. We are certain that is the case when our current chairman was selected. We should also point out that in the long history of the agency, it is only the previous chairman and the current chairman who have been members-at-large. Prior to this, the ARC chair has been a county commission chairman.”