As all good Catholics know, an omission is a failure to do something one can and ought to do. If it happens intentionally, it’s considered a sin.
I’m not sure if Cincinnati City Councilman Chris Bortz is Catholic, but I do know he should have been more forthcoming to CityBeat and local residents about the advice he got last year from the Ohio Ethics Commission.
The Enquirer reported April 28 that Bortz received an advisory opinion from the Ethics Commission indicating he shouldn’t participate in any decisions about the city’s proposed $128 million streetcar project. Although CityBeat asked Bortz just two weeks ago about any potential conflicts of interest involving the project, he didn’t disclose the June 2009 letter from the commission.
Instead, Bortz told CityBeat only about other advice from the city solicitor and private attorneys who said he could participate in project decisions as long as it didn’t involve the streetcar’s exact route.
Then, as near as we can surmise, a streetcar opponent learned about the advisory opinion’s existence and tipped off The Enquirer, which filed a public records request to get it. After The Enquirer’s article appeared, Bortz told CityBeat he was under no obligation to publicly disclose the advisory opinion because he requested it as a private citizen, not as a councilman.
“I was advised by a number of attorneys, initially, that requesting an advisory opinion from the Ohio Ethics Commission was the best way to dot all the i’s and cross all the t’s about my involvement in the streetcar project,” Bortz said.
An aside: Bortz’s rationale seems like a distinction without a difference. How, exactly, would the request have been made as a city councilman? By requesting it on official city letterhead? Does that mean any letter written by a councilperson from his or her home address discussing a city project is private? I think not.
Regardless, Bortz was surprised the opinion he received concluded he probably had a conflict and shouldn’t participate. Because several previous advisory opinions issued by the commission over the years on similar situations concluded otherwise, Bortz consulted with the private attorneys who had advised him he didn’t have a conflict.
Bortz hired attorneys from Graydon Head & Ritchey and Taft Stettinius & Hollister, two prominent downtown law firms.
“I requested it as a private citizen,” he said. “On the advice of my attorneys, they said I shouldn’t release it. It’s like releasing an accountant’s advice on your taxes.”
Bortz works for his father’s firm, Towne Properties, which develops and manages several residential and commercial real estate projects citywide, including apartments and condominiums within a few blocks of the tentative streetcar route.
Streetcar supporters, including Bortz, have touted the project’s economic spin-off effect, alleging it can spark redevelopment and increase property values within a three-block radius.
Asked if he believed he misled CityBeat previously, Bortz said no. “The Ohio Ethics Commission’s opinion seemed contradictory to their previous ones, and it didn’t seem helpful,” he said.
Generally, advisory opinions issued by the Ohio Ethics Commission have limited privilege. It’s not considered a public document when it’s given to the person who requested it. The status changes if someone asks the commission about any letter given to a specific person — an unusual Catch-22 situation that’s akin to shooting in the dark.
Also, advisory opinions aren’t binding; the Ethics Commission will start an investigation and issue a formal ruling only if someone files a complaint.
When CityBeat asked Bortz about potential conflicts two weeks ago, he cited previous Ethics Commission advisory opinions about similar situations that indicated a conflict existed only if the elected official held an ownership stake in the property, which Bortz doesn’t. He does, however, hold a 4 percent stake in Jeff Ruby’s Steakhouse at Seventh and Walnut streets.
Bortz believes he’s being held to a stricter standard than other elected officials.
“For example, (Vice Mayor) Roxanne Qualls owns a condo a block from the proposed route,” he said. "Does that mean she can’t vote on it, too? She’s a downtown Realtor."
(I have to wonder how Qualls feels about being continually used as a human shield by Bortz on this issue.)
Asked if he would benefit financially if the streetcar system is built, Bortz replied, “I believe the city of Cincinnati will economically benefit from the streetcar, and I have a vested interest in the city, as do several thousand other people.”
Since the advisory opinion’s disclosure, local political activist and ex-Pop music performer Justin Jeffre has filed a formal complaint with the Ethics Commission, asking for an investigation. That’s not too surprising: Someone was bound to do so, Jeffre merely was first at the trigger.
What is surprising is that the most vocal streetcar opponent — local NAACP President Christopher Smitherman — hasn’t filed an ethics complaint or replied to media inquiries about this issue. Sources in the legal community believe it’s because Smitherman’s attorney, conservative activist Chris Finney, handles some real estate matters as part of his day job and is afraid to incur the wrath of the Bortz family.
Some streetcar supporters have blasted The Enquirer for its coverage of the letter, alleging it's part of a plot to kill a project the newspaper opposes. Although it’s true The Enquirer could have done a better job of reporting that advisory opinions aren’t binding, the paper merely was doing its job in revealing newsworthy information the public has a right to know.
Also, streetcar supporters allege that opponents are being disingenuous by claiming the project will provide a financial benefit. Wrong. What the opponents are stating, albeit crudely, is that Bortz is betting with public money and could benefit if it’s successful but won’t suffer a personal loss if it fails. While CityBeat supports streetcars, this is a valid argument to make.
If anyone’s to blame here, it’s Bortz. Why ask for an advisory opinion at all if he wasn’t going to follow it? And once the opinion has been issued, it would be better to come clean about it rather than wait for the slow burn of its release almost a year later, which makes the whole affair look sordid.
As numerous politicians have learned over the years, beginning with President Richard Nixon, the cover-up is often worse than the alleged offense and destroys public trust.
Bortz might yet be cleared of any conflict. David Freel, the Ohio Ethics Commission’s executive director, said the commission wasn’t aware of the city solicitor’s opinion before it issued its own.
“A local lawyer or prosecutor may have more pertinent details about the situation,” Freel said. “If the facts given (to us) are wrong, then the advice can be wrong.”
Still, with Bortz not seeking the commission’s opinion until after he'd already voted on the project, he relinquishes any immunity from prosecution if the commission does find he has a conflict.
“The time for advice is not after action has been taken,” Freel said. “We will review it, but it’s up to the commission to decide whether to go forward.”
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