Those are the questions at the heart of an upcoming discussion by Rochester’s Ethical Practices Board. The board is responding to a request by Rochester resident Abe Sauer to examine whether a Rochester City Council member should be able to vote on actions that could benefit his employer.
“The Kmart episode demonstrates why, especially in Rochester, this is a problem,” Sauer recently told the board. “The perception about Mayo Clinic’s control is already out there.”
In February, the city council split 4-3 to support a request to use the former Kmart parking lot for contract parking for Mayo Clinic employees. Sauer pointed out two council members – Mark Bilderback and Shaun Palmer – were employed by Mayo Clinic.
Negating the two votes, however, wouldn’t change the outcome, since Bilderback opposed the plan and Palmer supported it.
Sauer said it would still address the perception of a conflict in the vote.
“The perception is the bigger problem,” he said, suggesting the city’s ethics code be changed to include an employer-employee relationship as a conflict, along with the potential for personal gain.
City Attorney Jason Loos said the city’s current code largely reflects state law, which would allow employees to vote on items related to their employer, as long as there is not a direct financial incentive.
“There is various case law out there that says just because you are employed by a company doesn’t mean you are necessarily going to directly benefit,” he said.
He said the issue could merit more investigation, but pointed out the Kmart issue isn’t the best example.
“The city council actually wasn’t voting on something Mayo was doing,” he said. “They were voting on something a third-party developer was doing, but in a roundabout way Mayo was involved.”
Camegaran LLC, which owns the former Kmart site, made the request to use it for contract parking. To allow it under existing zoning, the company, Mayo Clinic and the city were required to enter a three-way lease, with the city controlling some of the parking spaces.
Loos noted there are other cases were the employer relationship would apply directly, especially regarding planning concerns.
“That would be a major change, and it wouldn’t be just the city council,” he said, pointing out the ethics code applies to volunteer members of boards and commissions as well.
Additionally, the change wouldn’t only apply to Mayo Clinic employees.
The Ethical Practices Board voted 6-1 to discuss the matter further, with Loos researching added details before the Oct. 21 meeting.
Member Tim Hornseth cast the sole opposing vote. “I just don’t think that it’s necessary,” he said of the request for further discussion.
Loos said he plans to return to the board with information about what other cities have done related to similar concerns, as well as other considerations.
“It’s an interesting conversation,” he said.
If the board opts to support the proposed change, it can only make a recommendation to the council.
To change the city’s ethics code would still require majority approval by the city council.
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