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Estero Design and Review Board Chairman Joe McHarris represents a developer at the podium after recusing himself from a vote at the village DRB meeting on July 12, 2017. Village of Estero

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An Estero Council member wants to prohibit members of a village advisory board — tasked with preserving Estero’s Mediterranean look — from lobbying on behalf of clients seeking design approval for multimillion-dollar projects.

For years, Design Review Board Chairman Joe McHarris and fellow board member Bill Prysi have recused themselves from votes and discussions due to conflicts of interest.

But instead of remaining silent or leaving the public chamber, McHarris and Prysi have walked to the podium to represent developers, speaking for projects they were paid to work on.

These projects include the unfinished Estero Grande development. 

Both board members appear to qualify for a waiver that would allow them to do this under state ethics law, according to a 2004 Florida Ethics Commission opinion. But their actions have caused a Village Council member to take notice and have surprised some former state officials.

“If you’re recusing yourself, you shouldn’t be participating at all,” said Morgan Bentley, a former chairman of the Florida Ethics Commission and a Sarasota-based attorney.

Estero Council member Howard Levitan wants to make the village code stricter than the state ethics law.

“It’s perhaps time that they not do that,” Levitan said at a June council meeting.

Levitan, who represents District 3, did not mention McHarris or Prysi by name.

“They can work professionally for developers, that’s part of their business. But they shouldn’t be before our boards or the council in that context.”

McHarris is owner of Bonita Springs-based McHarris Planning & Design. Prysi is owner and manager of Land Architects Inc., based in Fort Myers.

Levitan is drafting an ordinance that would block board members from remaining in the chamber if they recuse themselves.

“I think this is the time. I think it’s appropriate at this point,” Levitan said in June.

When approached by the Daily News at the Design Review Board meeting this month, McHarris said “whatever the community wants” is fine with him, referring to Levitan’s ordinance.  

There is a benefit and there are “probably some negatives” to board members representing developers, McHarris said.

From chairman to lobbyist

McHarris has made it a habit of switching from chairman to lobbyist.

He has done it 11 times, according to a Daily News review of Design Review Board minutes and agendas. The list of projects McHarris has spoken for include: The Reef Clubhouse, The Reef Phase II, American House Adult Living Facility and the Estero Grande development.

For example, McHarris recused himself and appeared before the Design Review Board in January, presenting a deviation request on behalf of FGCU-Reef LLC, according to an application filed with the village

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Bill Prysi says “Hey Joe, I’m a lot nicer to you when you’re up there, than you are to me when I’m up there,” at the Village of Estero Design and Review Board’s January 10, 2017 meeting. Village of Estero

The chairman told Design Review Board members he was there to “beg for your forgiveness.” Workers had built some light poles for The Reef student housing project 25 feet high, when 15 feet was the limit. The deviation would allow the taller poles to stay.

After a discussion, with McHarris apologizing, the board unanimously approved the request, with an added condition specifying certain requirements for poles adjacent to residential areas.

“Hey, Joe, I’m a lot nicer to you when you’re up there than you are to me when I’m up there,” Prysi said after the vote, laughing, as McHarris walked away from the podium.

“A lot nicer.”

Prysi also has recused himself and then represented developers in front of the Design Review Board.

He has spoken four times, according to the Daily News review. The projects include: The Autumn Leaves of Estero memory care facility along Lyden Drive and the construction of a City Mattress at Coconut Point. Both of these projects can be seen from U.S. 41.

Many of the projects McHarris and Prysi have lobbied for are multistory, highly visible developments along major roads in the village.

In an email, Prysi declined to comment because the exact language of Levitan’s proposed ordinance has not been released, he said.

A controversial waiver   

It appears neither McHarris nor Prysi is violating the state ethics law. A built-in waiver grants exemptions to board members who help fill specific board member positions.

The waiver is intended to give working professionals a reprieve from the ethics law if their expertise is a requirement to serve on a board.

Prysi is a state-registered landscape architect. One state-registered landscape architect has to serve on the Design Review Board at all times, according to a 2015 Estero ordinance. McHarris, a professional planner, helps meet a similar requirement.

Because the two board members help fill these positions, they can legally represent developers at the podium, if taking into consideration a 2004 opinion issued by the commission.

The waiver is contentious.

“I think (the statutes) were written that way to create loopholes,” said Susan Horovitz Maurer, a former chairwoman of the Florida Ethics Commission and an attorney in Fort Lauderdale.

Maurer called the waiver a frustrating “thorn” in the commission’s side. During her time with the commission, Maurer said, officials found it hard to prove board members had prohibited conflicts of interest.

Bentley, the former state commission chairman, added that the Estero case is particularly “bizarre.” During his time with the commission, he rarely heard of officials “bold enough” to represent developers at the podium, he said.

“If you can’t sit on it, why can you present it?” Bentley said.

Jacksonville to Miami-Dade

Levitan’s proposal would mirror a Miami-Dade ordinance that blocks board members from remaining in the chamber after they recuse themselves, according to one ethics official. 

Joe Centorino, executive director of the Miami-Dade Commission on Ethics and Public Trust, said that county has one of the strictest ethics codes in the state — stricter than the state ethics law.

Municipalities allowing board members to represent developers is not an effective practice, Centorino said.

“In our jurisdiction, that would be forbidden,” he added.

However, Carla Miller — director of the Office of Ethics, Compliance and Oversight for the Jacksonville Ethics Commission — said ordinances such as the one in Miami-Dade, and Levitan’s proposal, can be a step too far.

Forcing a board member out of the chamber at a public meeting can be a legal risk for a city, she said.

Banning members from speaking at the podium but allowing them to remain in the chamber is more balanced, Miller said.

This method, she said, provides adequate financial disclosure and prevents potential conflicts of interest. It also ensures no precedent is set where someone, even a board member, can be blocked out of a public meeting, Miller said.

Aside from the Miami-Dade ordinance, Miller said she knows of no other ethics codes in Florida like the one Levitan has proposed for Estero.

How we reported this story

Kathy Hall, Estero village clerk, told the Daily News she has not been collecting state conflict-of-interest forms from Design Review Board members after they recuse themselves from nonvoting, public information meetings.

Kerrie Stillman — communications director for the Florida Ethics Commission — said the commission advises officials to file the forms every time they recuse themselves from voting and nonvoting matters.

Because of this discrepancy, the Daily News reviewed every developer application and presentation brought before the Design Review Board since it was started in 2015, for public hearings and public information meetings.

This helped pinpoint exactly when McHarris and Prysi recused themselves but then lobbied for developers at the podium.

The Daily News also reviewed hours of audio and video recordings of Design Review Board meetings to detail what the two board members said and did after recusing themselves.

 

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