The Cincinnati Situation IV - Proportionality

In determining whether a conflict or preferential treatment might exist, another aspect of benefits, in addition to how definite or direct they are, is their proportionality. Stated in the form of a question, Is the benefit at issue just one of many equivalent benefits to a sizeable group, such as senior citizens or property owners, or is it especially large?

The council member took the position that he and his family firm benefited no more than others who owned or had development rights in properties along the proposed streetcar route. In his letter to the editor, he quotes an unrelated state EC advisory opinion that states that there is no conflict if a benefit is not "selective, differential, or in disproportion to the benefit provided to other property in the political subdivision, or the portion thereof receiving the improvements." He insists that his family firm is not being treated or benefited any differently than others. There is no preferential treatment, he concludes.

While most business and property owners in proximity to the streetcar route would benefit equally, larger businesses and owners of larger or numerous properties would benefit disproportionately. Effectively, a disproportionate benefit to an individual or entity can be seen as de facto preferential treatment, even when no special action has been taken to prefer the individual or entity over others.

In his letter to the editor, the council member notes that the vice mayor owns a condo a block away from the proposed route, the mayor's father owns a home less than three blocks away from a proposed connector to Uptown, and a former vice mayor, who voted on the streetcar while a council member, owned a business along the proposed route. He then concludes that, "Under the [state EC] staff attorney's reasoning, none of these dedicated and committed public servants would be able to participate in the streetcar debate."

This statement totally ignores proportionality. The owner of nine properties, or development rights in these properties, on or near the streetcar route would have a far greater benefit than the owner of a nearby condo, home, or small business. In addition, according to a May 8, 2010 letter sent to the council by a Cincinnati attorney (attached; see below), the family firm was quoted as saying that its $100 million proposed project was “drawn up with the streetcar in mind” and that the family firm is “expecting the streetcar system to loop the project.” If this big proposal is directly related to, and possibly dependent on, the streetcar project, it appears that the family firm expects to receive a benefit far larger than the great majority of other firms.

According to the May 25 Enquirer article, the May 25, 2010 state EC advisory opinion stated, “While the streetcar project will undoubtedly affect all citizens in Cincinnati, it cannot be argued that its effect on all citizens is ‘uniform’ in manner. The first two phases of the streetcar will serve a small portion of the city. Those individual citizens whose properties are located along or adjacent to the proposed route ... will be affected by the streetcar project in a way that is particular, definite and direct.”

Most likely because the law does not expressly refer to proportionality, the EC took the position that because the property owners along the route represent a small percentage of property owners in the city, all property owners are not benefited uniformly. This allowed the council member to respond, “How can you possibly know when a project is big enough to go from providing a direct benefit to a uniform one? This is a seven-mile streetcar loop. Is eight miles big enough? Ten? One hundred? Who knows?"

Considering the issue of proportionality would have been, I think, a better approach.

Robert Wechsler
Director of Research-Retired, City Ethics

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