Council Debates Conflict of Interest Issue

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General contractor Ken Fischbeck’s demolition work on the historic Heisler Building may proceed despite his earlier involvement in approving another project there as a member of the Heritage Committee, the City Council decided Tuesday.

Since Fischbeck is working on the building’s second floor and he participated in Heritage Committee recommendations concerning the rooftop deck, the council found the job does not technically violate the city’s conflict of interest prohibitions.

Restaurant operator Ivan Spiers’ Sail Loft LLC recently leased the second floor in the downtown building at Coast Highway and Laguna Avenue from building owner Sam Goldstein. Hired by Spiers in March, Fischbeck recently pulled a demolition permit for the space vacated by the restaurant Rock ‘n Fish last November.

The council voted 4-1 to allow Fischbeck to continue work in the Heisler Building, with the caveat that he not be involved in any rooftop work before May 15, 2016, two years after the Heritage Committee’s last action involving the rooftop. Council member Rob Zur Schmiede dissented.

At issue is a section of the city’s code prohibiting a public official or employee from accepting work for two years “concerning any project” they were involved in approving.

“I’m really surprised this is even coming before the

council,” said resident Bonnie Hano, a Heritage Committee member who cast a dissenting vote on two of their recommendations about the Heisler Building. “I think the appearance of impropriety is very great and if I were to be crude I would say it doesn’t pass the smell test.”

Her husband Arnold Hano agreed that “it’s very clear this is a case of conflict of interest.”

Mayor Pro Tem Steve Dicterow said he asked staff to put the item on the agenda because he wanted it to be discussed openly.

If the code is interpreted to mean that the structure itself is the “project” reviewed by the Heritage Committee, then Fischbeck should be compelled to cease future work anywhere in the Heisler Building, staff advised. But if it is interpreted to mean that the rooftop deck of the building, specifically, was the project in question, then Fischbeck may proceed with work at the building that is not related to the rooftop deck, staff said.

Staff doesn’t believe Fischbeck participated in the Heritage Committee meetings with any intent to create any future work for himself, said Community Development Director Greg Pfost.

Pfost agreed with Dicterow’s assessment that the code’s language left the term “project” open to interpretation.

Fischbeck participated in the Heritage Committee’s April 15, 2013 recommendation to allow a rooftop deck addition to the Heisler Building and subsequent decisions in 2014. At the time, Fischbeck said he believed Rock ‘n Fish would be the tenant.

Fischbeck said that he had no relationship with Goldstein, but has worked previously with Spiers on his Mozambique restaurant, also in Laguna Beach.

Local attorney Larry Nokes, representing Sail Loft LLC, said the Heritage Committee approval of the rooftop deck had no bearing on the second floor restaurant and that they should be able to use the contractor of their choice.

Spiers’ project in the Heisler Building “was not even in the field in January and February of this year,” said local architect Marshall Ininns, who also works for Spiers. It didn’t begin until March, and Fischbeck had no idea he’d be involved in this project at all two years ago when the Heritage Committee recommended approval of the rooftop deck, Ininns said.

Goldstein insisted that Spiers hired Fischbeck because he’d used him before and confirmed that he had no conversation about any work on the building until last month.

Nokes further requested that, in addition to continuing work on the second floor, Fischbeck be allowed to subsequently work on the rooftop.

There’s no evidence that Fischbeck had any knowledge that he would be involved in any work in the Heisler Building at the time he participated in the Heritage Committee’s recommendations regarding the rooftop, said Dicterow.

 

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