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MEMORANDUM

TO:

ZMD Board Members, Patrick Dougherty, Mike Chivell

FROM:

Charles E. Valier

RE:

Code of Ethics

DATE:

March 6, 2015

The recent disclosure of ethical violations by one of our members raises a number of
issues that the ZMD must face. At the October 29, 2014, meeting during a discussion on
the draft code of ethics, Robert Powell disclosed that had done business with the Art
Museum and Garden.
So, as you know I have a non-for-profit that I have done with the Art Museum
before where they hire us that includes that would include me.
Later he expanded on that statement:
I am a service provider you know Portfolio so I would like thats the
clarification
Right doing business with the. Commissioners.
During a recess in that meeting some members, Tom Campbell has acknowledged to be
one of those members, talked to Robert Powell. When we went back in session, Robert
Powell made the following disclosure:
As I stated often the Subdistricts contact our organizations to do various
programs and last year we had a program called Art Conversation Talks of
which the Art Museum underwrote by buying product breakfast food donuts
coffee for me to serve to the attendees. I personally did not get any money;
the organization was given a stipend to buy this food with. So I am not currently
doing any business with any of the Subdistricts.
The following exchange then took place right after this disclosure:
Campbell:
So the only money the organization received was either reimbursement for what
they spent on the food or as you characterized the stipend in order to buy the
food.
Powell:
Right.
Campbell:
There was no profit.
Powell:
Right.
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I then raised the question of disclosure and the following exchange took place:
Valier:
It doesnt bother me but I think there should.I mean I think you shouldas you
are be open about it.
Wessels:
SoSo
Powell:
I will keep you posted.
Unfortunately, no further disclosure was made after the meeting by Robert Powell, who
had a duty to the Board to review his relationship with the subdistricts and report it to
the Board. Nor did the ZMD verify his statements after that meeting on this issue,
despite a parallel duty to trust what Robert Powell said was true, but to verify. So what
transpired was that a Post-Dispatch reporter investigated the matter and discovered
that in 2006, while Robert Powell was a member of the ZMD, he entered into a contract
with the Botanical Garden (up to $2,000) that paid him almost $1,559.74, part of which
was a consulting fee of $1,000. Further, the investigation turned up Robert Powells
ethics disclosure form for the period (2006), which was required to be filed pursuant to
Section 1.3 of our code of ethics and Section 105.487 Mo. Rev. Stat. It revealed that
Robert Powell failed to disclose the conflict and checked the box on the form that reads:
I certify that I have disclosed all interests concerning the required financial
interests.
This was in response to question 9, which required the filer to list any business entity
that had a transaction with a value of more than $500.
The penalty for violating the State statue is punishable as a Class B misdemeanor.
The Code of Ethics, then in place, simply provided that the standards of conduct
applicable to the Members of the District Board shall be commensurate with the
standards applicable to fiduciary or trustee who is responsible for acting in good
faith in the handling of the funds of the taxpayers of the District. Further,
Members of the District Board must at all times seek to avoid even the
appearance of impropriety. The Ethics Committee has clearly and unanimously
found that doing business with the subdistricts creates the appearance of
impropriety.
Every year since the contract with the Missouri Botanical Garden was entered into by
Robert Powell he has consistently voted to levy the maximum tax rate for the
Missouri Botanical Garden without any disclosure of his conflict.
In 2011, Robert Powell had two contracts with the Art Museum: one for $500 and the
other for $300. There is no evidence that he personally profited from those contracts
and they may not have risen to the level where they should have been reported being at,
or below the threshold level in his annual disclosure report. However, they also raise
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the spector of impropriety that our Code of Ethics says must be avoided. Why did
Robert Powell, as contemplated by our Code of Ethics, wait over two years to report
these contracts to the Board? His report for that period (2011) does not disclose those
contracts. Further, taken together they appear to have violated Section 105.458. Once
again he signed his ethics disclosure form as follows:
Under penalties of perjury, I certify that I have disclosed all interest concerning
the required financial interests.
The bigger question is, after the discussion on October 29, 2014, why did Robert, nor
our chairman, not seek out the facts and disclose the findings? There was a clear duty
for the chairman to direct the executive director to verify the facts that Robert disclosed
at the October 29 meeting, but that did not happen. We had to wait for a newspaper
reporter to do our work for us.
I first brought up the need to update our code of ethics in January 2014. Since then, we
have had two cases where directors had conflicts of interest: Pat Whitaker and Robert
Powell. What the ZMD has demonstrated conclusively is that we cannot deal with these
breaches of trust ourselves. We need to make clear that it is unacceptable for directors
to have business dealings with the subdistricts, because it conflicts with our power to set
the tax rate for them. The public no longer has confidence in our ability to represent the
taxpayers and to act impartially with ourselves.
In a recent email to the Board, Ben Uchitelle stated that we should now excuse Robert
due to his long service, as the violation was eight years ago. The fact that it took eight
years for the event to be discovered is not a mitigating factor, but an aggravating one,
since overlooking it would permit others to hide their indiscretions and fail to report the
conflict. I believe the e-mail speaks well for Ben, his compassion for his fellow member,
but it does not address the public perception of the ZMD and the need for us to try to
regain public trust. Neither Ben, nor I have the authority to determine whether Robert
Powell stays or goes. It is up to the prosecutor to determine whether his violations of
the law, including perjury, should be pursued and the Mayor as to whether he should be
removed from office. My opinion is that Robert would be serving the public good and
respecting the institution of the ZMD if he removed himself from the controversy.