rejects Freebery's claim
nearly two hours of acrimonious debate over the motivations of
its presiding officer, a sharply divided County Council went
into its customary summer recess with indications that it will
face some more contentious issues when members return from
seven-to-five to approve a non-binding resolution "urging"
Council president Paul Clark "to refrain from introducing and
spearheading land-use legislation until steps are taken to
restore public confidence in the impartiality of the [land-use]
Clark referred to
the resolution as "a lynching" and said he is "not going to
abide by it."
McClellan, who drafted and introduced the measure, said it was
not intended to censure or otherwise punish Clark and
acknowledged that there is no mechanism for enforcing its
In other matters
before Council on July 22, a busy final day before the
month-long recess, it:
• Voted, as
expected, to deny claims by Sherry Freebery and Janet Smith for
reimbursement of legal fees they paid to defend against federal
corruption charges; (CLICK HERE to skip to that section of this
• Was told that
county government's financial situation has, if anything, gotten
worse and to expect problems at least as bad as it faced this
year as the process for crafting a fiscal 2010 budget proceeds;
(CLICK HERE to skip to that section of this article.)
• Heard, in
committee, an unusual pre-introduction explanation of a proposed
ordinance to authorize a new financing arrangement to help the
Commonwealth-Setting joint venture pay for infrastructure
for the Renaissance Village redevelopment project in Claymont;
(CLICK HERE to skip to that section of this article.)
• Was advised that
the year-long dispute over the cost of having county sewage
processed at Wilmington's treatment facility is going into
mediation and probably will end up in binding arbitration (CLICK
HERE to skip to that section of this article.); and
legislation to repeal the law providing for phasing in over 10
years additional property taxes on new or renovated commercial
or manufacturing facilities in Wilmington. (CLICK HERE to skip
to that section of this article.)
resolution received the bare majority-of-Council vote necessary
for approval of any measure. Robert Weiner -- the only member
present who did not speak during discussion of the resolution at
Council's plenary session or a previous executive
committee meeting -- joined its five co-sponsors in casting
affirmative votes. The co-sponsors were John Cartier, Penrose Hollins, Jea Street, David Tackett and William Tansey. William
Powers, who was out of town, did not attend the session.
McClellan decided to bring an
updated version of her resolution to a vote after rejecting a
proposal by Clark to instead conduct a series of public
'workshops' to consider improvements to the land-use process and
significant modification of the Uniform Development Code.
She said the
resolution was "not about" the code or the process, per se, but
the "cumulative effect" on public confidence by what she charged
was Clark's ties with and bias toward developers culminating in
his having sent an e.mail "eliciting suggestions for the
lessening of land-use restrictions" to just "one specific group
that could benefit" from doing so.
Joseph Reda said it
is common practice for Council members to discuss pending
legislation and ideas for new legislation with business, civic
and other groups that would be directly affected.
McClellan and other supporters of the resolution questioned the
"appearance of a conflict of interest" inherent in Clark's being
married to Pam Scott, a lawyer who specializes in representing
developers in land-use matters. The e.mail included a
'signature' of Scott's law firm.
at the executive committee meeting, William Bell characterized
the e.mail as "a serious mistake, but a human error" which was
magnified by the fact that Scott "is one of the, if not the,
most prominent land-use attorneys in the state."
Clark blamed the
inclusion of the 'signature' on his ineptitude using a home
computer which is shared with his wife. "The only reason this
resolution is here tonight is that I am clumsy with a computer,"
he said. "How many of you have never pressed 'send' and
In a letter to
McClellan, which was circulated among all other Council members,
asking her to withdraw the resolution, Clark said he was taking
steps to avoid a repetition, including buying a new computer for
his sole use.
Street noted that
the e.mail contained different typefaces which, he said,
indicated that it was prepared on different machines. Hollins
said at the committee meeting that phraseology of the e.mail
"sounds to me like Beverly Baxter."
director of the Committee of 100, a development business trade
organization, was present at both sessions. She spoke briefly
during the public-comment period at the plenary session, in
opposition to the resolution.
Clark said that,
since coming on Council nearly four years ago, he has been
careful to avoid any conflict of interest by recusing himself
from debate about and votes on any rezoning or plan approval
where Scott is representing the applicant. As it happened, he
did so when record-plan approval involving a tract in Pencader
Hundred came before Council earlier in the session. 'Recusing'
is legal jargon which means disqualifying one's self
from participation in a decision on grounds such as prejudice or
Asked before the
vote how she planned to restore public confidence if the
resolution was approved, McClellan said one step will be to
examine 'recusal' rules used by legislative bodies in other
"I've broken no rules," Clark declared.
He added that land-use legislation he has sponsored has received
approval from the Department of Land Use, the Planning Board,
and, most significantly, a majority of Council or better. "We
have a complete and open land-use process," he said.
"It's ironic that people who throw stones live in the same [kind
of] glass house as me," he added. "If you want to throw rocks,
throw them at me. I can take it."
During the day and evening several members referred to Clark as
a person of demonstrated integrity.
McClellan said she was not out to impugn Clark's integrity. "My
intention is solely to protect our ability to govern," she said.
At several points in the discussion, however, there were
'did-so-did-not' exchanges and some barbs thrown.
The most pointed was a charge by Hollins that a close friend of
Clark's -- whom Hollins did not identify -- had gone to the
state Department of Elections in Dover "looking for some dirt to
George Smiley bristled about radio talk-show comments relative
to the issue to the effect that Clark's stances on land use not
only favored developer interests but also organized labor's
interests. Smiley is a retired former business manager of the
In his letter to McClellan, Clark characterized her resolution
as "the work of political gamesmanship." During discussion he
said it has generated "a thousand dollars worth of free
publicity" for anyone seeking to unseat him during the coming
The latest Department of Elections posting shows that Clark and
five of the other incumbent Council members seeking re-election
have no primary or general election challengers. Bell has a
primary opponent. All seven incumbents are Democrats.
HERE to read previous Delaforum article on
against honoring Freebery's $3.7
million claim was 10 to one with Hollins abstaining and Powers
Tansey cast the sole affirmative
vote, citing the government's having dropped all but one
relatively minor charge against her. "Dropped charges presume
innocence," he said. "If charges are unsubstantiated, they are
He added that not indemnifying
her sent a chilling message to police officers, code-enforcement
officers and other employees that county government will back
them up if they are charged with wrongdoing or sued as a result
of performing their duties.
"Council should put aside
politics, personalities and outside pressures," he said.
Among the charges the government
dropped was an allegation that Freebery had used police officers
and other county employees to make telephone calls in support of
Tansey in his challenge to then-incumbent Councilman Richard
Abbott in the 2002 Republican primary. At the time, she was
chief administrative officer, the highest appointed official in
the Gordon administration.
Tansey defeated Abbott and went
on to win his first term on Council with no Democratic
opposition. Freebery is a Democrat, but reportedly wanted Abbott
off Council because of some his stances against the Gordon
administration. Tansey won re-election in 2006.
Weiner, who, like Hollins, had
been asked by Freebery's lawyers to refrain from participating
in the discussion and vote, declined to do so. He denied that he
would be unable to make an objective decision.
Council members were polled on
the reason for their votes and all but Tansey said they were
accepting the advice of Joel Rosen, a Cherry Hill, N.J., lawyer
who formerly was a federal magistrate, hired as special counsel
to independently advise Council on a course of action. According
to Council's regular lawyer, Wendy Danner, he was paid
approximately $38,000 for his services.
Some Council members also gave
other reasons for their votes.
Street cautioned his colleagues
not to think they have had the final word on the issue. "It's
not going to stop here," he said.
As Delaforum previously reported,
Freebery's lawyers -- who did not attend the July 22 Council
session -- had indicated during a special meeting the previous
evening that she might take the matter to court. Freebery
herself did not attend either session.
Members of the public who spoke
at the July 22 session split six-to-one in opposing the granting
of the claim.
Denial of Janet Smith's claim for
$25,000 came on an 11-to-one negative vote with Hollins also
abstaining from it. The charge to which she pled guilty was
attempting to obstruct a federal investigation by having
relative documents destroyed. That, Council members were agreed,
constituted a violation of here public trust, which county law
specifically exempts from reimbursement.
HERE to read previous Delaforum article on
Council's finance committee was
told that, with the fiscal year
just a little over half a month old, the finance department has
already reduced its estimate of revenue for the year by nearly
$2 million, from $31.9 million to $39 million. And acting chief
financial officer Ed Milowicki said it may end up even lower.
transactions, including sale by Du Pont Co. of its Barley
Mill office complex, resulted in revenue coming in from that
source just about meeting expectations for the fiscal year that
ended June 30, he cautioned that there is no guarantee that will
reoccur. Also propping up the tax last fiscal year was the
unprecedented sale of 13 apartment complexes. "We've had no more
than three or four change hands in [each] recent years," he
Beyond that, he added, there is a
possibility the number of residential transactions will increase
as the housing slump bottoms out, but lower selling prices could
more than offset that gain. A tightened mortgage market also is
a threat. "If you can't get a mortgage, you can't buy a house,"
At the end of June, budget
reserves, exclusive of the 'rainy day' emergency fund, stood at
$61.9 million. The $14.2 million drop from the end of fiscal
2007 included $9 million set aside pending appeal of adverse
court decisions. The current year's budget anticipates using
$19.7 million of the reserve. It is expected to run out about
midway during the 2010-11 fiscal year.
Overall, county government spent
96% of its budget in fiscal 2008 while taking in 99% of
Chief administrative officer
Jeffrey Bullock told the committee there is little prospect of
the General Assembly coming to the aid of the county. When
legislators return in January they will be faced with the same
state budget crisis they failed to resolve before adjourning at
the end of June, he said.
HERE to read previous Delaforum article on
When Council members
vacation and next meet on Aug. 26, they most likely will vote
on a proposal to designate Renaissance Village as a special-tax
district and to authorize county government of float up to $20
million of special obligation bonds carrying an interest rate of
no more than 9%. Because they would be issued by a
local-government entity, proceeds from the bonds would be tax-exempt for most purchasers.
The actual amount of the
bonds-secured borrowing and the interest rate will be "something
less than" the specified ceilings, according to Timothy Fry,
county government's bond counsel, told the finance committee.
The proposed ordinance gives the
county executive the authority to determine specific details of
the bond offering -- a practice which Fry said is normal with
any bond-sale authorization that Council enacts. The measure
does specify that Bank of America will be underwriter for the
issue under terms to be determined "in a private, negotiated
Fry emphasized, however, that, as
special-obligation bonds, the securities are not tied to the
county's proverbial faith and credit. That means that they would
affect neither its debt limit nor its vaunted triple-A bond
ratings. In the event of repayment problems, bondholders will
not be able to look beyond a special fund which the measure
creates, he said.
County attorney Gregg Wilson
agreed with that conclusion.
The fund will be fed with
proceeds from a special tax levied annually on future property
owners and a portion of the common property tax resulting from
incremental increases in assessments as property values
increase. The incremental increases would be included in the
base for determining school tax and other levies included in the
county's tax billing.
In no case, Fry added, will
owners of properties outside the special-tax district be
required to help pay off the debt. The district will be
contiguous with the area covered by the approved development
plan, he said.
Legislation enacted by the state
General Assembly to enable the county to make use of
incremental- and special-tax financing limits its ability to do
so to the area included in the 'Claymont Hometown Overlay',
which includes but is broader than the Renaissance Village
Cartier, who is sponsoring the
proposed ordinance, said that he would not support any
legislation "that would jeopardize in any way our (the county's)
bond ratings or finances." He said later that he is going to
spend time during the recess studying the ordinance -- which Fry
drafted. Fry also agreed to respond, round-robin style, to any
questions members of Council raise during that time. His
services are being paid for by the developer.
proposed measure would set a limit on the amount of the special
tax that can be levied each year on a residential unit sold at
market value at $1,026. The 10% of Renaissance Village units to
be designated as 'affordable' or 'workforce housing' would have
their tax capped at $502. Commercial property would be taxed at
a rate not exceeding 72¢ a square foot.
event the fund falls short of being about to meet the
debt-service requirements on the bonds in any year, there is a
provision for also levying a backup tax – up to $144, $71, and
The limits would be ratcheted up by 2% a year beginning on July
county government will miss out on being able to collect
property tax on most of the increases in assessment value during
the life of the bonds – which will likely be between 20 and 30
years -- Cartier said it stands to gain much more revenue from
the realty transfer tax on the initial property sale and
continuing turnover sales.
who chairs the finance committee, said that the matter was
brought before the committee prior to Cartier's actually
introducing the proposed ordinance at the plenary session in
order to provide additional time for all Council members to
consider the complex legislation. Usually, a proposed ordinance
goes to a committee during the two weeks between its
introduction and its being brought to a vote.
Deviating from the normal
arrangement, in effect, gives Council members a summer vacation
HERE to read previous Delaforum article on
Bullock told the finance
committee that, after a year of
negotiations, an increase of $500,000 in the fee that city
government charges to process sewage from the county. That would
bring the annual charge to $17.5 million.
But, he said, following a
last-minute proposal to tack a 10% 'management fee' onto the
charge and the deal fell apart. "I was not prepared to pay an
extra $1.75 million," he said.
As a result, he said, he and the
city's negotiator, William Montgomery, Mayor James Baker's chief
of staff, agreed in May that the issue will go to independent
mediation and, if that doesn't work, binding arbitration.
Bullock said he would not
characterize the city's proposed charges "unreasonable or
exorbitant," but would describe them as "rich."
"We're in a vulnerable position
because we don't have our own facility," he said.
When Tackett asked how much it
would cost for the county to build its own facility, Bullock
laughed and replied, "a lot." In addition to being beyond
present means, any attempt to do so would run up against a block
when it came to trying to find an acceptable site, he explained.
Bullock said the city's cost of
managing the existing plant, under a contract with an operating
company, already is factored into the fee the county is charged.
The proposed 'management fee', he said, was intended to be
equivalent to a private utility company's 'rate of return' on
"They want to recoup their costs
and get a little bit more," he said.
When Street cautioned against a
breakdown in amicable relations between city and county
governments, in light of such common problems as drug-related
violence, Bullock said there is no desire by either party for
that to happen and that the dispute over sewage treatment is not
leading to a rupture.
also is a factor in the proposed
ordinance Tansey introduced to repeal the property-tax break
enacted several years ago to match the incentive Wilmington
offers to promote economic development in the city. The
measure's preamble calls the exemption "antiquated."
The existing arrangement calls
for a qualifying property to be exempt during the first fiscal
year from the portion of its county-tax obligation attributable
to new construction. In each subsequent year, the exemption is
decreased by 10 percentage points until it goes away a decade
after the new construction is completed.
Any property benefitting from the
arrangement prior to the start of the present fiscal year on
July 1 would remain eligible.