But even as he has urged the transformation of the town’s quaint commercial center, Fosselman has invested in three properties that would probably increase in value once redevelopment begins, according to interviews and an examination of town, county and state records.
The mayor and his domestic partner, Duane Rollins, acquired a 46 percent stake in two Armory Avenue properties purchased together for $1.2 million in November 2009 and a 34 percent stake in a Howard Avenue property purchased for $550,000 in September 2010, according to property records. The records indicate that they teamed up with a local business leader to invest in the properties through two joint ventures.
Fosselman, who became Maryland’s deputy secretary of state in April, said his support for the redevelopment predates the purchase of the properties and is rooted in his belief that the town cannot afford to fall behind.
“I asked people, ‘What do you want?’ Again and again and again, they said, ‘We want something to do in town,’ ” he said in a recent interview.
Fosselman said he believes that the properties he invested in, like others in area, could increase in value if the redevelopment plan is approved.
The plan focuses on dozens of mixed-use properties along Connecticut Avenue and University Boulevard, as well as around the local MARC station.
On Monday, a Montgomery County Council committee will review the proposal, and the full council is expected to vote on the redevelopment shortly after.
Ethics complaints have been filed in connection with his real estate transactions, Fosselman said, but he called the complaints “frivolous and politically motivated.”
The town’s conflict-of-interest laws prohibit local officials from participating as a representative of the town in matters in which they have “direct financial interest.”
Fosselman said his transactions did not violate the conflict-of-interest provision because he sought, received and complied with a town ethics committee’s advisory opinion that he made public in November 2010.
“It’s not a conflict of interest, and it’s perfectly legal, and I’m not hiding anything,” he said. “Many people know that we purchased the properties. Again, it’s a small town. Most people knew it.”
No violation found
The mayor requested the opinion in a letter dated Oct. 2, 2010. He asked whether it was “still appropriate” for him to participate in the redevelopment discussion because of the 2009 Armory Avenue purchase. The committee did not find a violation and recommended that he not make statements about the redevelopment unless the comments had been approved by the Town Council.
“We appreciate the desire by you . . . to act in conformance with the Ethics Code,” the head of the ethics committee, David Beaudet, wrote in the opinion.
Fosselman did not disclose the Howard Avenue purchase in his letter to the committee, even though the transaction had taken place. Fosselman said including the Howard Avenue transaction would not have affected the opinion. “Property is property whether I own one or 20,” he said. “The opinion is going to be the same.”
Beaudet, a former Town Council member who served with the mayor, declined to comment on Fosselman’s case and declined to say whether other rulings or opinions involving Fosselman’s transactions had been issued. Decisions by the ethics committee are not automatically released to the public. In an e-mail Saturday, Fosselman said the release of any other committee documents would have to be “formally” requested.
Town financial disclosure laws require local officials to disclose any completed or anticipated transaction that would have a “direct financial impact” on them.
According to town laws, Kensington officials file financial disclosure forms each January. To disclose a property purchase, an official can include the transaction on the following year’s form. The official can also amend the most recently filed form, based on an examination of previously filed town disclosure forms.
The mayor did not amend his 2009 form to include the Armory Avenue transaction, and he initially did not disclose it in his 2010 form, even after he confirmed the purchase at a public meeting, according to an e-mail he sent to the town attorney, Suellen M. Ferguson.
Subsequently, he sought legal advice from Ferguson. According to the e-mail, Ferguson told him that because the town is responsible for code enforcement (including building codes), “it is possible that a conflict could arise.” He later amended the 2010 form in February to disclose the Armory Avenue purchase.
Fosselman did not amend his 2010 form to include his Howard Avenue transaction, and he did not disclose it in his 2011 form.
When asked why he omitted the purchase in his town disclosure forms, Fosselman did not answer the question but did say he “would’ve done it differently.” He also pointed out that the transactions were recorded in property deeds, which are public.
“I don’t see how I could’ve been any more forthright,” he said.
An ethics official for another Montgomery County municipality said she is concerned by the omission of the second transaction on Fosselman’s 2010 and 2011 town forms. “It’s not like he shouldn’t have thought of it, if he was corrected on an error of a similar sort just the year before,” Patricia Anne Murphy, a member of Takoma Park’s ethics panel, said in an interview.
Fosselman did disclose both the Armory Avenue and Howard Avenue purchases in a state financial disclosure form filed in June, about two months after he was appointed deputy secretary of state by Gov. Martin O’Malley (D).
Fosselman said he has attached the state document to his 2012 town financial disclosure form, which he recently submitted.
As mayor, a part-time job, Fosselman is paid about $12,000 a year. As deputy secretary of state, he makes nearly $80,000 and oversees, among other things, charities, housing authorities and the public disclosure of people and businesses whose business with the state exceeds $100,000.
Fosselman was elected to his first term as mayor in 2006, just as discussions of redevelopment started in full. He has been reelected twice.
With Fosselman’s urging, the council has approved nine resolutions since July 29, 2009, expressing support for the plan or some of its parts. Because of a 2007 state law, Montgomery County Council members would need a two-thirds majority vote to deviate from the town’s recommendations.
New development model
Kensington, a town of about 2,200 people, is on the leading edge of what officials in Montgomery, and across Maryland, see as a new model for suburban development. As a way of combating sprawl and restraining infrastructure costs, government officials are urging or even ordering that new developments be clustered around transit centers.
But being a pioneer can lead to unease and uncertainty. The proposal has divided residents and led to mudslinging between town officials. The mayor and his allies on the council — Mackie Barch, Sean McMullen and John Thompson — have pushed for relatively aggressive redevelopment; council member Lydia Sullivan has dissented, urging a more restrictive plan.
Supporters of the more ambitious proposal, which the council endorsed, say a scaled-back version would not provide enough incentive for developers. Critics say the more ambitious proposal will bring in too much traffic and reduce the town’s village charm. To address critics’ concerns, county officials are working on a compromise that would slightly scale back the plan.
One of the supporters is Dennis O. McCurdy, the president of the Kensington Business District Association, a major business group in the town. McCurdy was partner with Fosselman and Rollins in acquiring the three properties. To complete the property deals, Fosselman and Rollins formed two joint ventures with McCurdy and two Potomac residents.
“He is a good friend. He is a loyal friend,” Fosselman said of McCurdy.
In an interview, McCurdy said he brokered the deals. On Saturday, Rollins declined to comment.
Town Council members had mixed opinions about the purchases and disclosures in recent interviews.
Council member Sullivan said she is troubled by Fosselman’s real estate holdings because Fosselman “control[s] the flow of information” involving the revitalization proposal to town residents.
“There’s some obvious conflict of interest here,” she said. “There’s following the letter of the law, and there’s following the spirit of the law. . . . I find the ownership of property, while at the same time lobbying for [a plan that would] increase the value of that property, troubling for an elected official. You absolutely need to be above board.”
McMullen said that as a voting member of the council, he “might angst over” making purchases such as Fosselman’s. But he said that the mayor is not a voting member and that the mayor has done nothing to treat his properties more favorably than the rest of the plan.
McMullen declined to comment when asked about Fosselman’s omission of the second purchase when requesting the ethics committee opinion. He said he was not aware of that.
But Thompson, another council member, said he is not bothered by the purchases. He also said that critics of the redevelopment proposal have a right to know any property purchases that are “legally obligated to be told.”
Bryant is a special correspondent. Staff researcher Magda Jean-Louis contributed to this report.