Anaheim Planners Learn an Old Conflict-of-Interest Rule

Ever since Lewis Herbst became an Anaheim planning commissioner in 1965, he’s been the recipient of a gift from Disneyland: a “silver pass.”

Herbst said he doesn’t use it much--maybe once or twice a year to take his visiting grandchildren to the theme park.

But earlier this week, those free passes forced Herbst and his six colleagues to declare themselves ineligible to vote on a proposed hotel near Disneyland.

Disneyland officials had expressed opposition to the proposed hotel but later withdrew their objections, city and Disney officials said.

The Planning Commission’s declaration Monday of a conflict of interest marked the first time the issue has arisen on the panel since the park in 1955 began handing out free passes--which allow the holder and up to three guests unlimited use of the Magic Kingdom, planning commissioners and a Disneyland spokeswoman said.

Put on Notice Before

However, this was not the first time that city officials were put on notice that state law requires disclosure of such gifts and that they must abstain on votes affecting donors of gifts worth $250 or more. The issue made numerous newspaper headlines in 1977 and 1978 with many city officials then--as they do now--disagreeing with a ruling that they should report the tickets’ worth by their maximum potential value instead of how much they actually use them.

Whether grudgingly or not, the Anaheim City Council stopped accepting the silver passes. The Planning Commission did not. And that came as a surprise to many this week, even though commission members have listed the passes on mandatory disclosure documents.

“That was news to me,” Councilman Ben Bay said. “I didn’t know anything about it. I’ve never received one. If I had, I would have sent it back.”

When development is contemplated in the area around the park, Disney officials are not hesitant to make their views known. But the annual silver passes are “a simple gesture of good will,” Disney spokeswoman Sydne Huwaidi said.

Passes Valued at $620

City Council members began refusing their passes in 1978, Mayor Don Roth and Councilwoman Miriam Kaywood said. That was the year the Fair Political Practices Commission in Sacramento determined the value of the annual passes to be between $620 and $720, Anaheim Deputy City Atty. Malcolm E. Slaughter said. Under the Political Reform Act of 1974, officials cannot vote on an issue affecting a gift giver for 12 months following receipt of gifts worth $250 or more.

All City Council members agreed with planning commissioners that the figures involved--the $250 limit and the estimated worth of the silver passes--are “unreasonable.” But council members were baffled as to why the commissioners did not give up their passes when the issue came to light in the 1970s.

“I think it’s ridiculous,” Councilman E. Llewellyn Overholt said. “We haven’t been taking them.

“I think it’s unfortunate but don’t understand why it happened. Why weren’t they given the same advice (as the council)? You could make an argument that anything that happens (before the Planning Commission) in that Harbor-Katella area could affect Disney.”

Not Issue Before

Planning Commission Chairwoman Charlene LaClaire, a member of the group for 11 years, said: “I really don’t even remember it coming up. It never had been an issue before. I don’t know anyone on the Planning Commission who’s thought about it.

“If I had known there was any problem, I would have sent it back (before),” LaClaire said, adding that she plans to give her pass back to Disney. She said she was unaware of the 1977-78 controversy.

Asked whether commissioners made any decisions affecting Disney in violation of state law, LaClaire said: “I don’t know whether we were or not. If we were (in violation), we certainly weren’t aware of it.”

In mid-1982, for example, the Emerald of Anaheim Hotel dropped a request for a taller sign and eliminated one story from the 140-foot-high hotel that was originally proposed to accommodate Disney’s concerns, according to city records.

Even the 1964 ordinance establishing a building’s height limit to 75 feet in the commercial-recreation area surrounding Disneyland was worked out at Disney’s request, said Annika Santahloti, the city’s assistant zoning director. The ordinance was revised in 1980 to reduce allowable building height by 25 feet in some areas north of the park. The aim of the ordinance is to prevent visual intrusions that might destroy the park’s atmosphere.

“They’re trying to create an atmosphere out there,” Herbst said. “It’s not an unreasonable request. They’re the ones who fill up those hotels.

“When they first built Disneyland, they wanted protection. I think it was a good thing for everybody. They realize if you hurt Disneyland, you hurt them (the hotels).”

Straight to Developer

Typically, complaints are not lodged with the city because the developer and Disney resolve any potential conflicts among themselves, Santahloti said.

“Generally, they go straight to the developer or the developer goes to them,” Santahloti said. “We normally don’t get involved.”

Unless a conflict arises in an issue involving a gift giver--such as Disneyland--the Planning Commission is not forbidden from voting on the matter, Slaughter said.

“There is no official action which would prohibit council from taking gifts,” he said. “Theoretically (under that scenario), it would mean a councilman couldn’t accept a gift over $250 from his wife.”

While not commenting specifically on the Anaheim situation, FPPC spokeswoman Lynn Montgomery said several similar situations in Northern California have resulted in successful prosecutions.

Free Fishing Trips

For example, Richmond City Councilman Al Silva was fined $500 in 1984 for not disqualifying himself on a vote that affected a developer who had given him a free fishing trip to Baja California every year. The fine was eventually canceled after Silva agreed to attend ethics seminars.

Also, Montgomery said that the FPPC recently investigated San Francisco Mayor Dianne Feinstein over a related but much more complicated issue involving advocacy rather than vote support for a new sports stadium. This after she received free passes from the San Francisco 49ers and the Giants. Montgomery said the FPPC did not prosecute Feinstein but told her that she could not advocate construction of the new stadium until 12 months had elapsed from the date on which she received the free football and baseball tickets.

Montgomery said it is almost impossible to “unring the bell” or change a decision that resulted from a vote that should not have been cast. Rescinding such a vote involves an allegedly “aggrieved” party obtaining a court order that prohibits implementation of the suspect vote, something that rarely happens.

In Anaheim, nobody has sought reversal of a Planning Commission decision that affected Disneyland. The issue has never arisen, according to city officials.

Conversation Overheard

In the case of the proposed hotel at 1460 S. Harbor Blvd., Slaughter several weeks ago asked the commissioners to postpone a decision until last Monday, when LaClaire announced the members’ conflict. Slaughter said he realized that the commissioners were receiving silver passes when he overheard two of them talking about them.

The hotel was originally approved in April, 1985, as a seven-story tower with 291 rooms. But the developer, San Diego-based Manfred Co., changed the request to a two-tower hotel--eight and nine stories--with 470 rooms. Disneyland initially protested against a taller hotel, saying it would be visible from the theme park, but later withdrew its opposition.

LaClaire said planning commissioners did not think the situation posed any problems but followed the attorney’s recommendation to declare a conflict.

Herbst and other officials said the $620 to $720 value placed on their passes is “ridiculous” because they are used only occasionally. Herbst also said he would receive a silver pass regardless of his role on the commission because he was a member of Disney’s community service award committee in 1967.

Worth Not Estimated

Huwaidi, the Disney spokeswoman, said she could not estimate the silver passes’ worth. Regular annual passes available to the public sell for $114.95 per adult and $84 per child.

The passes, Herbst said, are “one of the nice things that Disneyland does for people.”

Officials from several cities throughout the county said that disqualification from votes because of conflicts of interest are infrequent but not rare. Mostly, they involve votes affecting the disqualified officials’ own real estate holdings or a business client, rather than donors of gifts.

For example, an architect who sits as a member of Laguna Beach’s architectural review board recently disqualified himself from a vote affecting a client’s building plans. In the same city, Councilman Dan Kenney abstained on his neighbor’s request for a zoning variance because the decision could influence the market value of his own house.

City attorneys such as Robert H. Burnham in Newport Beach said officials “err on the side of caution” when accepting gifts.

“If anything, I think they (Newport Beach officials) tend to inflate the value of a gift (when including it on mandatory disclosure forms) in order to avoid any problem,” Burnham said.

Irvine Councilman Larry Agran, a strong proponent of conflict-of-interest regulations, said: “I don’t see evidence of any failure to disclose gifts that I’m aware of, at least in Irvine.” He said he keeps a little notebook with him to mark down gifts he receives, even free meals, and “then I report it all.”