CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP?
The credibility of St. Augustine's Planning and Building Director DAVID BIRCHIM is in shreds. An ethics complaint may be filed.
Will BIRCHIM be fired?
It happened on November 7, 2017 at the PZB.
DAVID DOUGLAS BIRCHIM never disclosed that it was his own home construction contractor for which he argued with, interrupted and bludgeoned PZB member Karen Zander over her raising concerns about legally required residential parking and strongly recommended a variance to build fourteen small homes at 216 Riberia Street.
At the November 7, 2017 PZB meeting, DAVID BIRCHIM failed to recuse himself and failed to disclose that the applicant, New Castle Construction, LLC, is under contract to raise and rebuild his flood damaged home in Lincolnville. BIRCHIM argued that PZB must not consider parking requirements and that the City has ignored them for 20 years.
A November 30, 2017 letter from the Florida Ethics Commission forced DAVID BIRCHIM to recuse himself from further speaking on a variance sought by his own building contractor, New Castle which then lost the variance unanimously, 7-0 at the December 5, 2017 public hearing, after a citizen raised concerns about conflict of interest. In response, City staff demurely reported that BIRCHIM had recused himself.
That's why BIRCHIM was not seated at the staff table for that item!
The 216 Riberia Street application was rejected 7-0 on December 5, 2017.
Shortly thereafter, I was provided a copy of the November 30, 2017 Florida Ethics Commission letter (below).
Section 112.313(7)(a), Florida Statutes provides:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . .; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.
I first raised the issue in Open Records requests and this blog, last month.
Will that it has the Ethics Commission letter and has seen the November 7, 2017 PZB meeting video, will St. Augustine Record now write an article?
You can watch videos here:
Item 4B
2017-0146 Todd Mitchell – ApplicantRiberia Street, LLC Etal and New Castle Homes,
LLC – Owner
216 Riberia Street and PID #2133500210
To increase the allowed lot coverage, and to reduce
the side building setback on a Lot described as Lot
5 to construct single family unit(s) on properties
known as Parcel ID #2133500000 and Parcel ID
#2133500210
Item 4A
2017-0146 Todd Mitchell – Applicant(Continued November 7, 2017) Riberia Street, LLC Etal and New Castle Homes,
LLC – Owner
216 Riberia Street and PID #2133500210
To increase the allowed lot coverage, and to reduce
the side building setback on a Lot described as Lot
5 to construct single family unit(s) on properties
known as Parcel
Here's the Ethics Commission letter:
Michelle Anchors
Chair
Michael Cox
Vice Chair
Jason David Berger
Daniel Brady, Ph.D. Matthew J. Carson
Guy W. Norris
Kimberly Bonder Rezanka
State of Florida
COMMISSION ON ETHICS P.O. Drawer 15709 Tallahassee, Florida 32317-5709
325 John Knox Road
Building E, Suite 200 Tallahassee, Florida 32303
"A Public Office is a Public Trust"
Virlindia Doss
Executive Director
C. Christopher Anderson, III
General Counsel/ Deputy Executive Director
(850) 488-7864 Phone (850) 488-3077 (FAX) www.ethics.state.fl.us
______________________________________________________________________ November 30, 2017
Ms. Isabelle Lopez
City Attorney, City of St. Augustine
Transmitted via email
Re: Your email received November 27, 2017 Dear Ms. Lopez:
This is in response to your above-referenced inquiry on behalf of Mr. David Birchim, Director of the Planning and Building Department for the City of St. Augustine, concerning whether he has a conflict of interest under the Code of Ethics as to a company which is seeking from the City a setback variance for one of the company's projects and which also contracts with Mr. Birchim for his home renovation.
You state that Mr. Birchim is a full-time City employee and, in that capacity, he attends meetings and presents recommendations to the Planning and Zoning Board. You explain that the company in question presently has a contract with Mr. Birchim to rebuild his flood-damaged home, which is not part of the company's project related to its request before the PZB. You state that he has no other business relationship with the company. You ask whether he has a conflict of interest that would prohibit him from presenting a staff report and recommendation to the PZB concerning the company's project.
The provision of the Code of Ethics possibly implicated is Section 112.313(7)(a), Florida Statutes, which provides:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.- No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . .; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the
Ms. Isabelle Lopez November 30, 2017 Page 2
performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.
The first part of Section 112.313(7)(a) prohibits a public officer from having an employment or contractual relationship with a business entity or agency that is regulated by or is doing business with the officer's agency. Mr. Birchim's agency is the Planning and Building Department, which has regulatory authority over construction companies, including apparently the company with which Mr. Birchim has a contract for home renovation.
In CEO 81-51 and CEO 76-75, the Commission on Ethics concluded that, as long as a municipal building official removes himself from personal involvement and decision-making in connection with a company involved in construction at his personal residence, the official has no prohibited conflict of interest under Section 112.313(7)(a). Accordingly, as long as Mr. Birchim is completely removed from any involvement by any division of the Planning and Building Department as to the company's renovation of his home and also as to any other matter concerning the company which comes before the Department (including the PZB) while his contract with the company is in force, he apparently would not have a prohibited conflict of interest under the first part of Section 112.313(7)(a).
The second part of Section 112.313(7)(a) prohibits a public officer from having an employment or contractual relationship which will create a continuing or recurring conflict between the officer's private interests and the performance of the officer's public duties or which would impede the full and faithful discharge of his or her public duties. Absent any ties between the Mr. Birchim and the company, other than his renovation project as stated above, he apparently would have no prohibited conflict under the second part of Section 112.313(7)(a), provided he removes himself from involvement as to the company as set forth above.
Also, since Mr. Birchim is a City employee rather than a voting member of the PZB, the voting conflict statutes, Sections 112.3143(3) and 112.3143(4), Florida Statutes, would not be implicated and he apparently would not be required to make any disclosures as to his home renovation contract with the company in question.
In sum, under the Commission opinions noted above, as long as Mr. Birchim does not appear before the PZB concerning the company or its requests and as long as he also is removed, in his public position, from any involvement within the Department concerning the company during the time of his personal contract with the company, Mr. Birchim's contract for home renovation with a company regulated by his agency apparently would not present him with a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes. If the facts of his situation change in a material way, please contact us for further guidance. If such future contact is made, refer to this letter. The Commission opinions and statutes cited herein are available at www.ethics.state.fl.us. Feel free to contact me if you have any questions.
Sincerely,
Betsy Daley
Senior Attorney
Florida Commission on Ethics
Here's the trail of e-mails that led to the Ethics Commission letter being obtained and released:
-----Original Message-----
From: St. Augustine Public Records <recordsrequest@citystaug.com>
To: Ed Slavin <easlavin@aol.com>
Sent: Tue, Dec 5, 2017 2:14 pm
Subject: RE: Request No. 2017-637: Disclosures by City of St. Augustine Planning and Building Director David Douglas Birchim
Please see the attached documents responsive to your public record request.From: Ed Slavin [mailto:easlavin@aol.com]
Sent: Wednesday, November 22, 2017 1:54 PM
To: David Birchim
Cc: sr@sarahryanarchitect.com; matthew.shaffer@att.net; longdella24@yahoo.com; sagresta@comcast.net; jcblow@bellsouth.net;gmisterly@gmail.com; karen@97park.com; Nancy Shaver; Darlene Galambos; Isabelle Lopez; Denise May; David Birchim; Leanna Freeman; Nancy Sikes-Kline; Roxanne Horvath; Todd Neville; John Regan; Lucy Fountain; Jim Piggott; Martha Graham; Todd Grant;
Subject: Re: Request No. 2017-637: Disclosures by City of St. Augustine Planning and Building Director David Douglas BirchimDear Mr. Birchim:
1. Please respond to my November 10, 2017 request Number 2017-637 today.2. Do I understand correctly that New Castle Homes, LLC is your contractor for work on your home on Riberia Street?3. Did you fail to disclose this fact to PZB members at the November 7, 2017 meeting on the 216 Riberia Street application?4. If so why?5. Do you plan to place this disclosure on the record at the December 4, 2017 meeting?6. If not, why not?7. Do you plan on recusing yourself from any further business by New Castle Homes, LLC. If not, why not?Thank you and Happy Thanksgiving.With kindest regards, I am,
-----Original Message-----
From: Ed Slavin <easlavin@aol.com>
To: sr <sr@sarahryanarchitect.com>; matthew.shaffer <matthew.shaffer@att.net>; longdella24 <longdella24@yahoo.com>; sagresta <sagresta@comcast.net>; jcblow <jcblow@bellsouth.net>; gmisterly <gmisterly@gmail.com>; karen <karen@97park.com>; nshaver <nshaver@citystaug.com>; dgalambos <dgalambos@citystaug.com>; ilopez <ilopez@citystaug.com>; dmay <dmay@citystaug.com>; dbirchim <dbirchim@citystaug.com>; lfreeman <lfreeman@citystaug.com>; nsikeskline <nsikeskline@citystaug.com>; rhorvath <rhorvath@citystaug.com>; tneville <tneville@citystaug.com>; jregan <jregan@citystaug.com>; lfountain <lfountain@citystaug.com>; jpiggott <jpiggott@citystaug.com>; mgraham <mgraham@citystaug.com>; tgrant <tgrant@citystaug.com>
Sent: Fri, Nov 10, 2017 10:19 am
Subject: Request No. 2017-637: Disclosures by City of St. Augustine Planning and Building Director David Douglas BirchimGood morning:1. Please send me any documents from St. Augustine Planning and Building Director David Douglas Birchim ever disclosing to our St. Augustine City Manager, City Attorney, City Commission, City Planning and Zoning Board or residents the names of the contractor(s) doing post-hurricane construction work 2016-2017 on Birchim's home. If none exist, please so state today.2. If Mr. Birchim ever made any such disclosures orally, kindly send me today the notes, minutes or meeting video timestamp of any such disclosures to our City Manager, City Attorney, City Commission, City PZB or residents. If no oral disclosures ever took place, please so state today.3. If Mr. Birchim ever recused himself from participating in any matters affecting the interests of the contractor(s) working on his home, please send me the document(s) today.Thank you.With kindest regards, I am,
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