7 of 10 Fairfax supervisors couldn’t vote on Inova zoning issue

September 10, 2013

One by one, they cited their reasons for not being able to vote Tuesday on a routine zoning matter involving Inova Health Systems.

First went Sharon Bulova (D-At Large), the chairman of the Fairfax County Board of Supervisors, who said she was recusing herself because she’d received political contributions from people tied to Inova. Then Catherine M. Hudgins (D-Hunter Mill) disclosed that she was comped a $389 ticket to Inova’s annual dinner gala. And Michael R. Frey (R-Sully) said he couldn’t vote because he’d also received political donations from hospital trustees.

By the time the roll was called, only three of the 10 supervisors voted on the proposal to open up three hospital day-care centers to the children of non-employees.

“Wow,” mouthed Gerald W. Hyland (D-Mount Vernon), who had also recused himself, throwing up his hands after the vote on the first site, approved 3 to 0.

The recusals — the most in a quarter-century, officials said — were based on advice from the county’s legal counsel. A recent state Supreme Court ruling, he said, found that elected officials in Fairfax must recuse themselves when they have any financial ties — however tenuous — to zoning applicants, officials said. The court opinion stemmed from a lawsuit filed by a Lorton homeowners association, which alleged that two supervisors had conflicts of interest in a zoning case involving a Metro facility.

In the Inova case, nearly all the supervisors who recused themselves had attended Inova’s annual gala, which is considered an in-kind donation. Also, two of the supervisors — Hyland and Penelope A. Gross (D-Mason) — serve on Inova’s Board of Trustees. Because they contributed to other supervisors, those campaign donations were considered conflicts.

Although they adhered to the county attorney’s advice, many of the supervisors said it makes them unable to perform a basic function: voting on important land-use matters.

“This decision makes it very difficult for a supervisor that has any kind of conflict to do their jobs,” said Supervisor Pat Herrity (R-Springfield.)

Others called it “silly,” “overreaching” and “an absurdity.”

The supervisors also said that unless the General Assembly loosens the restrictions, they may be forced to recuse themselves from some of the most major decisions affecting the county, including the redevelopment of Tysons Corner.

Herrity noted that several supervisors have received contributions from people linked to the development at Tysons, which county officials are hoping will become the new center of metropolitan Washington.

“For us to not be able to participate in those meetings, that’s tough,” Herrity said.

Bulova said board members now must review all of the board and commissions they serve on to ensure that there are no conflicts of interest. On Tuesday, for example, the board voted to remove Supervisor Linda Q. Smyth (D-Providence) from the Mosaic District Community Development Authority, which was created to improve an industrial part of the county.

Had she remained on that panel, she would have had to recuse herself from all votes related to the redevelopment, officials said.

Previously, board members were required only to disclose any contributions and gifts from people doing business with the county — they did not have to recuse themselves from votes.

Bulova said the county is likely to push for looser disclosure rules governing the county when the General Assembly reconvenes in January. But because of the gifts scandal surrounding Gov. Robert F. McDonnell (R), it will be a rough path, she said.

“This is a difficult time for us to be bringing up this issue with the General Assembly,” Bulova said. McDonnell is under federal investigation after it was revealed that a wealthy businessman footed a $15,000 catering bill for the wedding of one of the governor’s daughters and provided McDonnell with a Rolex watch and the use of his Ferrari.

“I know that the General Assembly will be focused on tightening up some disclosure laws,” Bulova said. “This sort of goes in the opposite direction.”

Stephen Spaulding, counsel with Common Cause, a government-accountability group, welcomed the idea of more broadly tightening disclosure laws.

“Cozy relationships and financial ties raise the appearance of corruption, which is why we have these laws in the first place,” Spaulding said.

In the case that triggered the court opinion, the homeowners association argued that the two supervisors should have recused themselves from voting on a zoning case concerning where to place a Metro maintenance facility.

The homeowners said the supervisors — Hudgins and Jeff C. McKay (D-Lee) — had a conflict of interest because they also served on the Washington Metropolitan Area Transit Authority’s Board of Directors. They also said that Bulova and Supervisor John C. Cook (R-Braddock) should have recused themselves because they received more than $100 in contributions from a consultant working for Metro.

The county won the case, but in the ruling, the majority opinion said elected officials in Fairfax are required to recuse themselves from land-use cases where there are financial ties.

Meanwhile, the decision is resonating beyond the Board of Supervisors.

David Gill, an associate attorney with McGuireWoods LLP, a law firm that specializes in land-use cases, said the decision is also likely to affect political donations in the county.

The law firm recently alerted clients that any contributions may jeopardize county zoning cases they’re trying to advance.

“My hope is that it does lead to less direct contributions,” Gill said. “The more sunshine, the better in these situations.”

As the vote began Tuesday afternoon, Bulova said the board was in a “strange situation” and read from a statement: “Although I am remaining on the dais to preserve a quorum, I will not be participating in these hearings in any way.”

McKay was among those who cast a “yes” vote, saying he had been spending time with his family the night of the Inova gala. (The others voting yes were Smyth and Cook.)

Before he voted, McKay lamented that political contributions and free “rubber chicken” dinners are an unavoidable fact of life in serving as an elected official.

“Our constituents expect us to be involved with community nonprofits and faith organizations,” he said. “Many of us sit on those boards voluntarily.”

As for the dinners, McKay admitted that it wouldn’t be so bad to have to miss a few.

“I don’t really look forward to them,” he said.

Antonio covers government, politics and other regional issues in Fairfax County. He worked in Los Angeles, New York and Chicago before joining the Post in September of 2013.
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