Thursday, July 10, 2008

Oconee Commissioner Norris and the Land Planner II

To Recuse or Not to Recuse?

On Jan. 3 of this year, landscape architect and land planner Ken Beall came before the Oconee County Board of Commissioners representing his client, Ronnie Kittle, developer of the Coldwater Creek project off Whippoorwill Road in Oconee County.

Kittle had discovered an extra 9.9 acres when surveying the original property for Coldwater Creek, and Beall was asking the BOC to rezone that 9.9 acres from A1 (Agriculture) to R1 (Residential). The 9.9 acres had not been included in the earlier rezone for a Master Plan Development.

Beall and Oconee County Commissioner Don Norris, who was hearing Beall’s request with the other four commissioners, both serve on the Board of Directors of North Georgia Bank.

As it turns out, Kittle also had a relationship with North Georgia Bank at the time the request was before the Board of Commissioners.

On July 20, 2007, Kittle secured loans from North Georgia Bank on five pieces of property in Phase 3 for Coldwater Creek, according to deed records filed in the Oconee County Superior Court clerk’s office. Kittle signed for the loans, which totaled $1.28 million, as president and CEO of Oconee River Development Inc.

What Commission Norris knew on January 3 about Kittle’s relationship with North Georgia Bank is not public record. Norris and Beall, as trustees of the bank, are ultimately responsible for all activities of the bank. The Board of Trustees meets to review bank transactions for that purpose.

The effect of the Jan. 3 rezone on the loans held by Kittle for the five pieces of property in Coldwater Creek also is not known. According to records in the Clerk’s office, loans on the 9.9 acre out parcel had been secured on May 19, 2006, from McIntosh Commercial Bank in Covington, and March 14, 2008, from Chestatee State Bank in Dawsonville.

The ultimate success of the development, including the success of development of the 9.9 acres, does have impact on the ability of Kittle to repay his loans.

Norris did not recuse himself on Jan. 3, 2008, and the rezone request made by Beall on behalf of Kittle and Coldwater Creek was approved 3-1, with Commissioner Jim Luke voting in the negative.

Beall next asked the Commissioners to vote to allow for the construction of a new section of road through the 50 foot perimeter buffer that was part of the original Coldwater Creek Master Plan Development. The five lots on which the North Georgia Bank had made loans were part of the MPD.

Norris again did not recuse himself. The Board voted unanimously to approve Beall’s request.

At the Candidate Forum organized by citizens on June 2, Norris was asked about the impact of his serving on the Board of Directors of North Georgia Bank on decisions he makes as a commissioner.

"If a rezone comes before the Board (of Commissioners), and the bank has a financial interest in the rezone, I would recuse myself," Norris said. "What happens in many cases is, when the rezone comes before the board, the bank has no financial obligation. Later on, it sometimes, it may acquire an interest in that. But, again, too, I don’t make loans."

The Coldwater Creek rezone illustrates the complexity of the relationship between members of the development community and the Board of Commissioners. It shows how difficult it is for a commissioner who is a member of the development community to keep responsibilities separate.

This issue has been prominent in this campaign, where the business interests of Norris, Esther Porter and Mike Maxey in particular have come under question. All are part of the development community. Norris is seeking reelection, and Porter and Maxey are seeking to be elected to the Board of Commissioners.

Of course, the issues is not whether members of the development community can serve on the Board of Commissioners, but those circumstances under which they should recuse themselves.

Norris has been challenged many times over the years on his policy of infrequently recusing himself. His answer is that he relies on the advice of County Attorney Daniel Haygood.

Charlie Baugh, who is a retired IRS agent, and I spent an hour in the Clerk of Court’s office on July 7 looking for votes by the Board of Commissioners where the Bank of North Georgia had made loans. That was when we found the security deeds for the five loans by North Georgia Bank to Kittle.

Charlie went back and spent more time going over the records of loans to Kittle a day later. He found no evidence of additional loans to Kittle for any of the properties in Coldwater Creek after the January 3 vote.

The security deeds that had been filed for the five properties in Coldwater Creek on July 20, 2007, were filed for recording by Daniel Haygood, in his capacity as an attorney in private practice.