By Melinda J. Overstreet / Glasgow News 1
It took just shy of one hour Thursday for the Glasgow Code of Ethics Committee to deliberate and find that Councilman Patrick Gaunce did not violate the city’s ethics ordinance with his Aug. 22 vote on whether the city should sell certain properties for the future site of a new justice center.
Mayor Harold Armstrong had filed a complaint Aug. 29 alleging a violation.
The committee heard opening statements, testimony and closing comments from both sides of the issue for approximately two hours and 45 minutes before recessing for lunch for roughly 30 minutes, stating at that point they expected to go into closed session immediately upon returning and that they believed they would have a decision before the day was done, both of which they did.
Upon emerging from the closed session and reopening the meeting, committee member Ben Rogers proposed a motion that the committee adopt the following finding: “The board finds that the complainant has failed to introduce evidence by clear and convincing evidence of a violation of the standards of conduct Section No. 5. The complainant acknowledged that the respondent did not accrue any personal or financial benefit, pursuant to Section 5(D), by his vote on Aug. 22, 2022. Given the respondent’s conversation with the city code enforcement officer, there is an appearance of impropriety which does not rise to the level of clear and convincing evidence required by the ordinance. The committee concludes that no violation of the ordinance has occurred.”
The chair and only other member of the committee for this hearing, Rossie Kingery, seconded the motion and they both voted to approve it. The third member of the committee, the Rev. Michael Rice, had recused himself from the proceedings involving this complaint to avoid a potential conflict of interest. Bowling Green attorney Hamp Moore served as attorney for committee and as the hearing officer for the proceedings.
Armstrong, who represented himself, was provided the opportunity to make opening statements first but was also his first witness, and he said it came to his attention before the Aug. 22 regular council meeting that they would have an option to sell some property, and he had “several people” to call him and mention that he had a councilman with a piece of property in the mix and suggesting that the councilman shouldn’t vote on this. He called the Kentucky League of Cities for advice. On the Saturday before the meeting, Gaunce called him to ask about allowing Circuit Judge John T. Alexander to speak at the meeting. The mayor said he told him then that he shouldn’t vote or speak on the subject because he had written information indicating it could be a conflict, but Gaunce said his attorney had told him it wouldn’t be a conflict of interest.
“But, after him voting and speaking to, or for or against, in that issue, I felt that there was a conflict of interest and misconduct, and that’s the reason I filed the report as I did, and I’ve asked this board to review it and look at it,” Armstrong said. “So basically, that is the basis of the complaint.”
He said several individuals had been told things but he did not subpoena them because that would be hearsay, but he had the city attorney, Danny Basil, there to testify because he had spoken to Gaunce before his vote about the potential issue, and the city code enforcement officer, Sheryl Pena, was called to testify on his side as well.
Statements and testimony
In his opening on Gaunce’s behalf, attorney Brian Pack said that if he understood the mayor’s statement correctly, “the only issue we’re here about today is whether a conflict of interest existed on Aug. 22, 2022.”
He stipulated that Gaunce owns property along the west side of the Public Square.
“The question is: Was his property really under consideration there on Race Street on Aug. 22, 2022, when he made that vote. If his property was under consideration, I acknowledge there would be a conflict of interest, but if it was not under consideration, then there would be no conflict of interest.”
Pack had also emphasized that the burden of proof fell to the one submitting the complaint and that the ordinance requires “clear and convincing evidence” to make that proof.
By the mayor’s own assessment, his case heavily depended upon testimony and documentation provided by Pena, who had been working on getting code violations corrected at the building at 103 W. Public Square, formerly owned by Max Durham. Gaunce had communications, possibly as late as sometime in July, with her in which he indicated he was waiting to take care of the some of the issues with the building until he knew for sure whether it may be purchased for the justice center project, because in that case, the structure would be demolished.
Much emphasis was placed on the timeline of those communications.
On Aug. 22, Gaunce voted against the city’s selling of property parcels along West Main Street for the justice center project; on Sept. 12, he voted in favor of selling only some of that same land for that purpose, which left the remainder for a proposed farmers market pavilion/park area. Armstrong suggested that the filing of his complaint on Aug. 29 may have had some bearing on that decision, which Gaunce later denied.
The mayor said, regarding the Aug. 22 vote, that if the project development board for the justice center didn’t get with the West Main property, Gaunce’s was “supposedly” next in line. When Pack asked whether he was contending that Gaunce’s vote to oppose the sale was to force interest in his own property, but Armstrong said he couldn’t speak to Gaunce’s intentions.
He said he spoke to Gaunce on Aug. 20 and asked him whether his property was still under consideration, and Gaunce said he reckoned so.
Basil said that at the Aug. 22 meeting, a copy was passed to him of an email from Gaunce to other individuals in which Gaunce said he had not entered into any agreement with the county to sell his property, and he had expressed concern to Gaunce at that point that he could have a conflict. Basil said that, at that point, to his knowledge, no one had entered any such agreements.
A note of Pena’s on Aug. 14 said “haven’t heard any announcement yet,” and the mayor believed that was a message she received from Gaunce, but she testified that was her note that she had not heard anything.
Alexander, who serves as vice chair of the project development board, testified fairly extensively as to the process that had been undertaken to find an appropriate property for the justice center, some of the properties they had considered and what factors led to their level of prioritization. He said another property and the west side of the square had become a “distant second and third” in comparison with the West Main Street area for various reasons, some of which he discussed.
One of the architects on the project called him around June 9 or 10 and said they had walked and evaluated all the potential properties, Alexander said, and that person told him, essentially, “The Main Street property is head and shoulders above the every other piece that we’re looking at …. You all will be failing your community if you don’t put it on that Main Street property.”
He said he hung up the phone and called District Judge Gabe Pendleton, also a member of the PDB, to discuss how they could approach getting it done, and within a few days, and a few days later, probably June 13, he called Gaunce. Pack asked for the reason for the latter call.
Alexander said that partially, it was just out of courtesy; another person on the committee called one of the other parties that owned a potential site as well to tell them the same thing, “which is, we cannot tell you that we’re not going to want your property, but that’s not our focus, because we were trying to be respectful of them. If somebody came along with a big bag of money and said, ‘We want to buy this,’ we didn’t want them to hold onto it and lose money to sell it to us later when we didn’t think we were going to need it.”
The other reason, though, was that he knew Gaunce had been involved with the committee that had been working toward getting the farmers market and park along West Main.
“We knew that we had had some disagreements and there had been some – I don’t want to say hard feelings – but some harsh words, because we had different – not with Patrick but with members of the park committee. Members of our committee had had a different vision of what we could do down there than those guys had,” the judge said.
He essentially asked Gaunce if he could help them bridge that gap.
Pack asked whether his client had helped with that.
“Yeah, I think so, I mean, you know, because that’s where we ultimately got that worked out and got something that we could all live with or that they can live with; it was our ideal from the get-go,” Alexander said. “I’m not trying to give the impression we got something we can live with. We got something that we wanted and that we needed, and we were able to work out a slight accommodation here and there that I think made it palatable to the city, too.”
Pack asked about the difference of opinion among council members about how much of the West Main land should be sold.
“As a board, we decided to approach the city with an offer, to ask for an option to purchase property, the property that basically we did end up ultimately putting an option on,” Alexander said.
One or two fiscal court members asked them to try to get an option on the whole package of land, including where the intended site for the farmers market/park, but he and Pendleton told them was essentially that the county government was ultimately going to be the purchaser/owner, but they – as members of the PDB – knew how much they needed for their project, and that’s all they felt they would use, even if they had the larger amount of property. He said they didn’t want to be greedy and get more property than necessary.
Pack asked about another conversation he had with Gaunce close to the time of the Aug. 22 vote and whether he had told him why he was opposed, and Alexander said it was generally that he felt that if they gave up control over all that property, they wouldn’t be able to put anything else there. Pack rephrased and asked whether, on Aug. 22, Gaunce was in favor generally of putting the justice center along West Main.
“I don’t know what was in his mind,” Alexander replied. “I know what he told me when I called him [in June] and said my architect says you all will be failing your community if you don’t build your judicial center down there in the absolute best place it could go. [Gaunce] said, ‘I agree. Let’s try to make it work.”
After that, any of the conversations they had were about trying to find common ground to work out something agreeable to everyone.
“In fact, he told me, ‘It’s not in my best interest for it to be down there, but that’s the best place for it.”
As Armstrong prepared to ask the two questions he had for Alexander, he noted it was a rather awkward situation, and the judge said he did not disagree.
The mayor asked Alexander whether, if the West Main deal had fallen through, would those second or third possible sites not have been revisited, no matter how “distant,” rather than losing the funding and not having a new courthouse.
“Oh, most definitely,” Alexander said. “We would have tried everything in the world to find another place to put it.”
He then elaborated on some of the problems with the West Public Square property, which would have needed to be the entire block, not just the 103 building that had code issues, so there were multiple property owners, some of which weren’t interested in selling, which would have driven up the price. Entering and exiting from there would have created even more traffic problems on the square, and there was a layer of bedrock that would have needed blasting, he said.
“We’d rather have it in a bad place than not at all,” Alexander ultimately agreed to further questioning. “We never put anything in the discard pile, we just shifted them down. … We had a ranking process.”
He said that in their minds, though, the West Public Square location was rejected as not being viable – “there were so many impediments.”
Later, Pendleton testified and essentially backed up what Alexander said, particularly with regard with the focus on the West Main property after around June 13 and problems with the West Public Square properties. He verified that Gaunce was asked for help in negotiating an arrangement for the West Main area, and Pack asked him whether he was, indeed, helpful.
“Instrumental, I would say,” Pendleton responded.
Two hours in, Gaunce himself testified and said the reason he first voted no on the sale on Aug. 22, because discussions had been occurring for a few years about the other project planned for that West Main property and $800,000 in private funds had been raised toward making it happen with a public-private partnership, but he also felt it would be fiscally irresponsible to relinquish the remainder of the land, which would increase in value with the justice center next to it.
He said that once Alexander asked him to help bridge that gap, he worked weekly and diligently toward making that goal happen.
Before the Aug. 22 vote, he had sent an email to to Alexander, Pendleton and Wes Simpson, who’s led the effort for the park, etc. project about not having signed any sort of agreement, he said, and that was the document that Basil had seen just prior to that meeting.
In his mind, at least, that was his way of saying, “Hey, my building’s not even in play,” Gaunce said, and thus he believed he had no conflict of interest at that point.
Kingery said one of the things that bothered her with this case was that the wording of his attorney’s summary of that email, which was read aloud and was similar in nature to what Gaunce testified his intent was, and the wording of the document itself were not the same.
After the finding was signed and provided to Gaunce’s attorney, the meeting/hearing, which had begun at 9 a.m., was adjourned at roughly 2:25 p.m.
Comments