HARPERS FERRY – The state Ethics Commission has given Harpers Ferry Mayor Wayne Bishop the all-clear to take part in town discussions or decisions over the proposed Hill Top House Hotel development project.
The officials reached the conclusion Thursday based solely on facts presented by Bishop to the nine-member commission.
Bishop, a longtime opponent of the Hill Top redevelopment project who was elected mayor in 2017, sought the advisory.
The five-page opinion does not identify Bishop by name.
Bishop and his wife, former Town Council member Elayne Edel, own two homes near the Hill Top property and next to three empty residential lots beside the hotel property.
The opinion states: “The Commission finds that [the mayor] is a member of a class of five or more similarly situated persons and therefore he may vote on matters relating to the proposed hotel development or Hotel Project Site.”
Bishop and Edel are among at least seven other property owners with similar personal stakes in the outcome of the town’s decisions over the proposed Hill Top project.
The commission used past Ethics Commission rulings interpreting state ethics statutes in the decision.
The commission’s opinion does not address allegations made in Bolivar resident Deborah Austin Ryan’s complaint filed Feb. 27. That complaint alleges Bishop stands to personally benefit from his Hill Top project decisions he makes as mayor.
The commission will wait to release an opinion on that complaint until after Bishop stands for re-election on June 11 – unless Bishop requests otherwise. Chris Craig is his opponent in that race.
Thursday’s opinion relies on the information about the Hill Top situation as outlined by Bishop, according to Rebecca Stepto, executive director of the Ethics Commission.
Someone who gets an advisory from the commission “only gets immunity for the conduct in question under the facts he or she presents to the Commission,” Stepto explained in an email. “If the facts are materially false, the Opinion would not provide immunity to the Requester.”
It also appears that key information, if kept from the Ethics Commission, could invalidate Thursday’s advisory.
“If all material facts have not been provided, or if new facts arise, [Bishop] must contact the Ethics Commission for further advice as it may alter the analysis and render this Opinion invalid,” the opinion explains. “If a matter arises which uniquely affect the Company Owned Lots or other property adjacent to his property, then he should contact the Ethics Commission for further advice.”
One fact not acknowledged in the commission’s opinion is a lawsuit that Bishop and Edel filed in 2016 involving the Hill Top.
The couple sued the town for allegedly failing to require SWaN to demolish the deteriorating Hill Top structure to avoid a public health hazard.
After the suit’s dismissal in Jefferson County Circuit Court, the couple appealed to the state Supreme Court. They ended the suit after Bishop’s election as mayor.
Some of the circumstances that Bishop detailed to the Ethics Commission contradict known facts.
As part of his request filed March 8 to get an opinion from the Ethics Commission, Bishop stated that he and his wife were approached about nine years ago by a Hill Top project manager to “discuss buying their properties.”
Those properties involve their home facing East Ridge Street and an adjacent house facing Washington Street that the couple rents out.
The commission based its opinion on an understanding that “about nine” other homeowners near the Hill Top site on East Ridge Street also were approached by a representative from SWaN Investors of Leesburg, Va., the firm owned and representing the Hill Top’s developers, Fred and Karen Schaufeld.
Bishop also told the commission that about nine years ago a SWaN representative approached him and asked if the construction company that employed Bishop at the time would “be interested in performing work” on other SWaN projects “in other states.”
Bishop told the commission that his employer at the time, BE&K Building Group of Vienna, Va., instructed him to forward his resume “and information about his employer’s construction business” to SWaN to seek the construction work that SWaN had reportedly proposed.
Officials with BE&K could not be reached for comment about Bishop’s version of events but Mike Miller, the project manager for the Hill Top nine years ago, has told the Spirit that Bishop sought work with him on the Hill Top. At the time, Bishop served on the Harpers Ferry Planning Commission.
The circumstances that Bishop presented to the commission also don’t mention allegations that Bishop, while serving as a member of the town’s Planning Commission, asked SWaN to hire him as a construction project manager for the Hill Top.
Miller, who no longer works for SWaN, provided copies of emails between him and Bishop from 2007 and 2008 that corroborate Miller’s explanation of events.
According to those emails, Bishop approached Miller seeking to become a Hill Top project manager after SWaN publicly announced plans to redevelop the hotel.
Bishop sent his personal resume in an email to Miller on Oct. 17, 2007, with no mention about what services BE&K might provide.
“I have hotel, condominium and University apartment experience that are not reflected here. Also I can provide you with both National and International references,” Bishop wrote to Miller.
That same day, Miller forwarded Bishop’s email and resume to Fred Schaufeld. Miller wrote of Bishop, “He approached me with a desire to be involved in our Hilltop Project. … He indicated that BE&K Building Inc. may be interested in our restoration project. However, if we went with another firm, he would still be interested in assisting on his own because he has flexibility with BE&K.”
In January 2008, Bishop followed up in an email to Miller, writing: “Please let me know if you can use my services.”
Bishop continued to serve on the Harpers Ferry Planning Commission as SWaN representatives submitted a redevelopment plan for the Hill Top property.
In 2010, SWaN withdrew the proposal it had submitted to the Planning Commission after town residents, Bishop and Edel included, complained that a 187-room hotel project was too large for the site.
Bishop never publicly disclosed that he’d sought to work as a project manager for the Hill Top project.
The Ethics Commission notes: “There is no provision in the Ethics Act which requires [Bishop’s] recusal based upon past communications with the business, mainly because they occurred more than a decade ago.”
In addition to asking whether he could be involved in the town’s Hill Top discussions and decisions, Bishop asked the Ethics Commission to suggest whether the Harpers Ferry Town Council may “require his recusal or exclude him from discussions and votes concerning the [hotel] project.”
The commission wrote that the state’s ethics law doesn’t address the issue, but suggested that Harpers Ferry’s charter or ordinances be reviewed to determine if they allow the council to take such action.
The commission also stated no public official can be compelled to vote on a matter when such a vote might cause him or her to violate the state’s ethics law. In contrast, its opinion does not prevent a public official from recusing himself or herself on any matter.
However, if a public official does recuse himself or herself, the commission offered this guidance: “For a public official’s recusal to be effective, it is necessary to excuse him or herself from participating in the discussion and decision-making process by physically removing him or herself from the room during the period, fully disclosing his or her interests, and recusing him or herself from voting on the issue. The recusal shall also be reflected in the meeting minutes.”