July 13, 2005 - A longtime Oro Valley volunteer was removed from one of the town's boards last week after he repeatedly spoke out against the development of a large shopping center that is being planned at Tangerine and Oracle roads near his home.
The council voted 4 to 1 to remove Richard Feinberg, a three-year member of the town's Development Review Board, with council member Paula Abbott opposed and council members Barry Gillaspie and Kenneth "K.C." Carter absent from the meeting.
The board is the volunteer group that reviews and approves the architectural design and layout of proposed development plans for projects being built in the town, which includes development site planning as well as the relationship of the development to the surrounding environment and community, according to the town's description of its boards and committees. Seven members are appointed to the board by the council for two-year terms and serve at the pleasure of the council.
The possible removal of Feinberg was brought before the council at the request of Councilman Terry Parish, who said he was upset with Feinberg because he spoke out against town council members who Feinberg believes should have taken a stance regarding the Vestar development instead of remaining quiet.
Vestar is a Phoenix-based development company building a 100-acre open air shopping center in the town. The development has been met with opposition because of its proposed size and design and also because Vestar is building in the town under an economic development agreement that allows for the sharing of about $23.2 million over a 10-year period and for "big box" retail stores.
In letters to the editor of the EXPLORER News-paper, Feinberg repeatedly criticized the council and its members for not opposing the shopping center and also wrote about his disapproval of the center and the tax-sharing agreement. In one letter, published June 22, Feinberg specifically wrote about Council-woman Conny Culver.
"While the town clerk and attorney are questioning the validity of the petitions because of a technical error, Ms. Culver has apparently staked a 'hands off' position for herself and the council," Feinberg wrote.
He said it was his speaking out against the development and on behalf of the political committee Stop Oro Valley Outrageous Giveaways that led to his removal from the board.
"As a DRB member, I asked the question why is the council mute on this subject, and I was fired for asking," he wrote in an e-mail response to questions from the EXPLORER.
Parish said Feinberg made his views on the Vestar project so clear through letters and other comments that if the development plan were to come before him as a member of the board the council would have to find a way to remove him from the board because he does not believe Vestar would get a fair hearing.
"You shouldn't make up your mind until you hear the plans," he said.
Parish also supported removing Feinberg from the board because he said that if he were not to take part in any of the discussions or votes regarding the Vestar development he would not be fulfilling his duties as a member of that board.
"What if half of the board decided to speak out against the plans? Then we would only have three or four people hearing the plans for the biggest shopping center in Oro Valley," Parish said.
Abbott defended Feinberg at the council meeting by pointing out that he signed his letters not as a member of the board but as a private citizen. She said citizens should have the right to speak about whatever topics they choose.
Parish said he believes in free speech but "you can't have two masters."
"Even though the letter is not signed by a member of the board, people know him as one and as a former candidate for town council," he said.
Abbott strongly opposed removing Feinberg, asking "What if he had publicly supported the (Vestar) development plan? Then would he be removed?" She added that, in her opinion, if that were the case the council would not be having the discussion.
"It's an abuse of authority by the council to try to stifle someone who volunteers," she said. "I think it is wrong. It is terrible for democracy and free speech."
Feinberg was not able to attend the council meeting, but he sent a letter to council members responding to his possible removal from the board.
"For three years, I have worked diligently in the performance of my job on DRB. I served with honor, dignity, and an open mind. I have tried to follow the rules of the zoning codes, the General Plan guidelines and our design criteria. I have never acted with bias or prejudice to any applicant, and I have consistently brought my 45 years of experience as an artists to the table to help make Oro Valley a better and more beautiful place to live for its citizens and those who visit," he wrote. "But despite my background and performance for the past ten years as a volunteer for Oro Valley and member of the DRB, this council has seen fit to discuss my removal for reasons I feel are unjustified."
The town's attorney, Melinda Garrahan, said removing Feinberg from the board was a "risk management issue."
"He can certainly go on speaking about Vestar," she said. "But being a member of the DRB and speaking out before hearing that case gives the appearance of impropriety." Garrahan likened Feinberg's outspokenness to a judge saying someone is guilty before ever hearing the details of his or her case.
Garrahan disputed Feinberg's assertion in his letter that he was told by Garrahan and Culver to recuse himself from hearings on the Vestar project, saying she only asked him if he would consider the option.
In a subsequent interview, Garrahan explained that she and Culver met with Feinberg in May after various people, including members of the town staff and the board, expressed concerns about the public position Feinberg had taken against the development. It was at that meeting that Garrahan said she explained the liability of continuing to speak on the subject and serve on the board, telling him that removing himself from hearing any discussion on the shopping center plans and from voting on any recommendations regarding it would be one way to handle the situation.
"Sometimes you do need to make a choice between doing what it is a public official does and acting any way you please as a private citizen," she said, explaining the reason for the advice she gave.
A few days after that meeting, Feinberg sent an e-mail message to the chairperson of the board stating he would be recusing himself. Garrahan said that was the last she heard of the issue until an item was placed on the agenda for discussion of his removal from the board.
However, after learning that the council would be discussing his possible removal from the board, Feinberg wrote a letter to the town council members about the situation. Feinberg also sent that letter to a member of town staff, and Oro Valley residents and the board chairwoman, a move that Garrahan said was problematic because in the letter he disclosed details of the meeting held between himself and Garrahan and Culver, which was subject to attorney-client privilege. The reason, Garrahan explained, for keeping the matter between the town's lawyer and the immediate parties involved was to minimize the liability for the town should Feinberg have decided not to take her advice, which was what happened. In the letter to the council, Feinberg said he would not be removing himself from the Vestar discussions that come before the council.
"I was giving him advice, and if he didn't choose to take it, I didn't want people to know I have given him advice," Garrahan said.
She said there "was nothing particularly deep or secret" about the attorney-client privileged conversation and once the discussion had been made somewhat public by the dissemination of the Feinberg letter Garrahan advised the council to waive its privilege so the discussion could be more freely discussed.
Garrahan said she also was concerned that Feinberg's letter did not accurately reflect the meeting she had with him and that she thought the letter bore implications that she and Culver were meeting with him because of something Vestar representatives said to one of them, which she said was not the case.
However, she said she does not know to what extent those issues played into the final decision of the council to remove Feinberg.
Culver, in voting for the removal, said it was because he had lied and broken attorney client-privilege.
She said that while she does not expect public officials to stay mute on the issues that come before them, "I do expect the truth." She said there were parts of Feinberg's letter that were untrue, including those cited by Garrahan.
Both Garrahan and Parish were asked by the EXPLORER if other members of boards and commissions would meet the same end if they choose to speak publicly against Vestar or any other future development in the town. As an example, Planning and Zoning Commissioner Doug McKee was cited as a member who has spoken before the Northern Pima County Chamber of Commerce and other local groups as a representative of the citizen's group Stop Oro Valley Outrageous Giveaways, which is opposed to the economic development agreement between Vestar and the town. That group has twice sued the town trying to refer the issue to a public vote.
Parish said he was not aware of any other town volunteer speaking out against the development but he does think the council should approach any similar situation in a case-by-case manner, looking at the details and deciding if there is enough inappropriate behavior to merit removal.
"The council should always continue to look at it," he said.
He said the decision to remove Feinberg was a difficult one and he, as a council member, had heard or witnessed so much unacceptable behavior from Feinberg that "it was no longer tolerable." Garrahan said there are two factors that make Feinberg's situation different from any other board or commission member's. Timing is one, she said, because Feinberg was in a position to possibly hear a Vestar plan in the near future and the town is now in the midst of training its boards and commissions to be sensitive to the types of situations that could become liabilities for the town.
She said that by setting up the May meeting with Feinberg she was trying to get that advice to him early to try to avoid any possible issues.
The second reason is that she said the board is more likely to hear a Vestar issue at this point because zoning issues have already been settled for the development.
Feinberg stated in an e-mail message to the EXPLORER that he spoke on behalf of SOVOG because the council had denied the group's request to present its argument to the public at a council meeting.
"When SOVOG asks the council to make a presentation to the town council, in front of the community at town hall, to provide facts that dispute what is presented to the community in reference to the Vestar development, the town council said no, on more than one occasion," he stated.
Abbott asked the council at the meeting if SOVOG would be allowed to present at a future meeting but Loomis said he believes that would be inappropriate because the town is involved in litigation with the group.