Ethics Review Commission dismisses complaint against Neslund

The Ethics Review Commission dismissed a complaint Tuesday night that Melissa Neslund should have registered as a lobbyist, after a hearing that chair Austin Kaplan called perhaps the board’s most contentious.

A special called meeting of the commission weighed whether Neslund, a Land Development Code Advisory Group member, is a lobbyist.  Austin Neighborhoods Council president Mary Ingle filed a sworn complaint June 24 saying Neslund’s job was a conflict of interest. The meeting was a preliminary hearing to decide whether to proceed to a final hearing.

Ingle and lawyer Fred Lewis contended that Neslund, a senior associate with the Austin-based engineering and design company Bury, lobbied while on the advisory group, violating city law. The group is central to the CodeNEXT initiative, which is reviewing the city’s land-use codes.

Based on part on a comment from a Buda official on Neslund’s LinkedIn profile, the complainants said Neslund was lobbying to represent developers before city officials or their subordinates. Lewis cited Neslund’s own statements to the Austin American-Statesman in which she said, “‘I meet with zoning case managers on zoning questions,’” and to the Austin Chronicle in which she said, “‘I’m processing applications’” for zoning permits.

The city’s code (§ 4-8-2, (6)) defines lobbyists as people who privately work to influence or persuade city officials. Lobbyists aren’t allowed on the advisory group per a Dec. 6, 2012 City Council resolution.

Lewis argued that because zoning case managers report to city officials, Neslund’s statements indicated a form of indirect influence on city officials. A final hearing in which to question people Neslund had met with, Lewis said, could reveal that lobbying took place in their private conversations.

“She’s compensated by Bury to represent developers to the City of Austin’s land development processes, and have her clients’ applications approved,” Lewis said. “She is by any sense, state law, city law, any law that I’ve ever seen, a lobbyist. The only question is whether the city law requires her to register, or (whether) the city law is a worthless sham.”

Ingle told the Monitor that the advisory group is skewed toward developer interests.

“This city has systematically ignored the people who live here, and they have put developer interests first,” she said, adding that developers often ask and receive code exemptions that benefit them financially but don’t offer much to the neighborhoods.

Neslund adamantly denied being a lobbyist.

“Clients come to us and say, ‘What can I do on this piece of property?’ And because of the way our code is set up, many times I can’t tell them exactly how an ordinance is going to be interpreted,” she explained. “So I pick up the phone and I say, …’We have to design a set of plans. … How is this ordinance going to be interpreted?’”

Neslund added that her questions are sometimes bounced to zoning case managers or zoning staff because “nobody wants to make a decision.”

“That is not lobbying,” she added.

Neslund said she volunteers her time as a Real Estate Council of Austin representative, talking to City Council members as a technical and policy adviser only, and as a volunteer with Mobile Loaves and Fishes.

“I am an Austinite. I am raising my family here. I have dedicated countless hours to this process,” Neslund said, adding that she was away from her three-week-old newborns to be at the meeting. “I’m just really upset about this.”

Neslund’s lawyer Casey Dobson called Ingle’s complaint a political stunt, and scolded Lewis for calling his client unethical without more evidence.

“Miss Ingle is saying that Melissa is not violating the city code the way it is written — rather, (that) she is violating the city code the way (Ingle) wishes it was written,” Dobson said.

“If Miss Neslund is a lobbyist, (then) every soil scientist, traffic engineer, structural engineer, every type of consultant and engineer that seals some plans in connection with a development and is asked by their client to come down to ZAP (the Zoning and Platting Commission) or come down to Environmental Board or come down to the Council and sign in so as to be a resource if the board or the commission or the Council has a question about the work they did, becomes a lobbyist,” Dobson added.

Commission Member Velva Price asked Neslund whom she’d met with. Price is a Democratic candidate for Travis County District Clerk.

Neslund replied that she’d met with Jerry Rusthoven, a staff member with the Planning and Development Review Department, and George Adams, who is now assistant director in the department but whose title at the time of their meeting Neslund didn’t recall. She had also met with Wendy Rhoades, a zoning case manager. As a RECA volunteer, she met with Council Members Chris Riley and Bill Spelman.

Neslund is a Spelman appointee.

Commission Member Peter Einhorn asked Lewis whether he had filed an Open Records Request for evidence that Neslund had met with public officials. Lewis replied that he had not, adding, “A lot of this (lobbying) activity is never recorded.”

The commission voted 4-2 that there weren’t reasonable grounds to believe an ethics violation had occurred, ensuring Ingle’s complaint won’t proceed to a final hearing. Voting in favor were Kaplan, Einhorn, Dennis Speight and James Ruiz. Price and Donna Beth McCormick voted against.