I wonder if Preservation Pittsburgh has evaluated its potential legal exposures created by having the organization’s president Matthew Falcone serving as a Pittsburgh Historic Review Commission member? As Preservation Pittsburgh’s leader, he nominates properties to become City of Pittsburgh historic landmarks. As a commissioner, he debates the merits of those nominations and votes on recommending designation to the Pittsburgh City Council. In 2020, Falcone even nominated, debated, and voted on the designation of his own home.

Curiously, Pittsburgh’s historic preservation law makes all of this possible. It created a massive legislative loophole that enables this conflict of interest:

Submission of a nomination by a member of the Historic Review Commission, the City Planning Commission, or the City Council shall not preclude that member from full participation in the review of the nomination nor from voting on the recommendation or designation. (Pittsburgh Municipal Code §1101.03(a)(1)(b).

There’s no doubt that the HRC plays an outsize role in whether properties get landmarked or not. Being the board’s resident historic preservation expert doesn’t help, either. Along with the Planning Commission, the HRC acts in an advisory capacity under Pittsburgh’s historic preservation law. In its final say, the City Council puts great weight on what the two boards recommend.

The HRC’s key position in the process was center stage when the City Council evaluated making the Tito-Mecca-Zizza House a historic landmark. Though the legislative body ultimately voted 6-2 to landmark the property, council members and parties offering testimony noted several times that the HRC declined to find the property historic.

The Pittsburgh City Council puts great weight on HRC recommendations because the board serves as the City’s historic preservation expert body. Pittsburgh’s historic preservation planner underscored the HRC’s role in her presentation to the City Council during the April 2022 Tito-Mecca-Zizza House designation hearing:

I can tell you that the Historic Review Commission voted to provide a negative recommendation to City Council. What the Historic Review Commission uses to make their decisions are criteria specifically spelled out in Title 11, which are drawn from the National Park Service guidelines. And they tend to be pretty stringent … Planning Commission doesn’t have that stringent criteria to look at that the Historic Review Commission does.

One Pittsburgh resident opposed to the designation addressed the Council just before it voted to approve the designation. “The city’s own Historic Review Commission did not find the property to be worth saving,” said the Squirrel Hill man.

A Greenfield resident said, “Given that the Pittsburgh Historic Review Commission has ruled that the Tito House does not meet historic designation, historic designation of the Tito’s house is simply another means to obstruct housing progress.”

Even Councilmember R. Daniel Lavelle, who voted under pressure from his constituents to approve the designation said, “I personally don’t view it as historic. The HRC said it wasn’t.”

An Inside Advantage

It certainly doesn’t hurt to have an insider on a board with such power. That in itself might present itself as a professional or personal conflict of interest. But what about a financial conflict of interest?

In 2008, Paul Edmondson (an attorney and current President & CEO of the National Trust for Historic Preservation) and Bradford J. White wrote a book titled, Procedural Due Process in Plain English: A Guide For Preservation Commissions. The authors wrote:

Conflicts of interest. Allegations of conflict of interest are more successful in court than any other type of bias claim. Commission members should be careful to ensure that they do not have any type of personal, financial, or professional stake in any proceeding before them. When a conflict of interest exists, the commission member should formally remove himself or herself from the decision-making process. This includes leaving the room during any hearing or discussion of the matter, and making no further statement or comment about the matter.

Procedural Due Process in Plain English: A Guide For Preservation Commissions (2008)

Preservation Pittsburgh uses its prowess at getting properties landmarked in Pittsburgh as a marketing point in its annual fundraising campaigns. Does having an inside man create multiple conflicts of interest for Preservation Pittsburgh and its president? That’s a legitimate question for Pittsburgh residents to ask and for Pittsburgh’s elected leaders to answer.

I asked a former Preservation Pittsburgh board member who remains very active in the organization’s advocacy efforts if the group was concerned about its president’s potential conflicts of interest. She replied in an email:

Matthew  [Falcone] serves on the Historic Review Commission as a volunteer in a separate capacity from his volunteer role with Preservation Pittsburgh as President

She dodged my question about conflicts of interest but she did write,

Matthew [Falcone] was appointed to the HRC by the Mayor and approved by City Council, due to his capabilities and experience, including because of his association with Preservation Pittsburgh.   As stipulated in the City’s historic preservation ordinance, City Council, the Mayor, a member of the Historic Review Commission,  a member of the Planning Commission, and any City of Pittsburgh resident may designate Historic Structures.  

What a great advantage, having all the benefits of access to power and no apparent accountability. Earlier this year I reached out to the Pittsburgh Ethics Hearing Board about it. A staff member replied that the HRC members are not considered “city officials” and the HRC is considered an “advisory board.” Because of this, HRC members are not subject to the same ethics obligations and conflict of interest rules as other City board members. And, they also enjoy that loophole specifically allowing them to nominate properties and decide the outcomes. Personally, I think it’s about time that the Pittsburgh City Council revise the law to make it more fair and to eliminate actual and perceived conflicts of interest.

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