making local government more ethical

Recusal

This is the place to discuss recusal, that is, withdrawal from participation when there appears to be a conflict of interest. Also see Transactional Disclosure, in the "Disclosure" section, where this issue will also be discussed.

100(3). Recusal

  1. An official or employee* must refrain from acting on or discussing, formally or informally, a matter before the city, if acting on the matter, or failing to act on the matter, may personally* or financially benefit* any of the persons or entities listed in subsection 1 of this section. Such an official or employee should join the public if the recusal occurs at a public meeting, or leave the room if it is not a public meeting.
  2. An official or employee must refrain from acting or discussing, formally or informally, a matter involving a person who appointed or recommended him or her for that position, if he or she is aware of such appointment or recommendation.
  3. If a board or agency member is requested to recuse himself or herself with respect to a matter, for the reason that he or she has a conflict of interest, by
    1. another member,
    2. a party to the current matter, or
    3. anyone else who may be affected by a decision relating to this matter, the member must decide whether to recuse himself or herself.

    If the member decides not to recuse himself or herself, the unchallenged members must consider any relevant evidence concerning such claimed conflict of interest, as defined in this code, and vote whether or not to allow the request and require that the member refrain from participating in the matter.

  4. Rule of Necessity: If recusal would leave a board with less than a quorum capable of acting, or if the official or employee* is the only person authorized by law to act, the official or employee* must disclose the nature and circumstances of the conflict to the Ethics Commission and ask for an advisory opinion pursuant to 104 and 209.

Comment: "Acting on and discussing, formally or informally" means that the official should withdraw from any involvement with the matter, including conversations, appearances at meetings or portions of meetings concerned with the matter, and voting on the matter, except, of course, in a public referendum.

Sometimes inaction benefits an official or his or her close associates - for example, when a code enforcement official fails to cite her brother for a zoning violation. That is why this subsection prohibits an official's inaction, as well as action, in certain circumstances. In such an instance, the enforcement official should ask someone else to handle the matter.

See 101 for provisions concerned with the disclosure of a conflict pursuant to this subsection. Because disclosure in this sort of situation occurs at the time a conflict becomes immediately relevant to an action or transaction to be taken by an official or employee, this is referred to as "transactional disclosure."

4ethics says:

Two points of recusal and notice have been made in this discussion. The first recusal from discussion and the second recusal from the action of voting. Could you make recommendations on the notice portion and the timing of the notice. I would prefer notices be found in multiple places and not buried where residents are not aware. I have seen council members not show up for meetings, so that they do not have to publicly disclose.

Robert Wechsler says:

How, when, to whom, and with what transparency to provide notice of withdrawal is a very complicated topic. Below is the section of my book Local Government Ethics Programs on this topic. I don't talk about the placement of notices of withdrawal. Usually, they are put on the record, if it involves a board member; and filed in the clerk's office or, if it has an office, the ethics commission. It is unusual for such notices to be placed online, but that certainly is an alternative.

One important issue is whom to disclose your conflict to and in what manner. A council member, whose brother’s company has begun to look into bidding on a maintenance contract that will eventually have to be approved by the council, would either, depending on what the relevant ethics code says, tell the chair or president about the conflict situation, tell the secretary so that it can be put in the minutes, and/or announce the possible conflict when the matter is taken up by the council. Even if withdrawal is not required, one should still choose to withdraw, considering the appearance of impropriety involved. An employee should tell his supervisor. If either an official or an employee is not sure what to do, he should ask the ethics officer or, if there isn’t one, the city or county attorney’s office.

A second issue is when to disclose a conflict, something that ethics codes often omit to tell officials. Disclosure, and withdrawal, should occur as soon as an official has a reason to believe that he has or even might have a conflict. The matter does not have to be on a board’s agenda, nor does a procurement employee, for instance, have to wait until bidding begins, because an official or employee can have a great deal of influence on a matter long before either of these events occur. For example, a development can be discussed for a long time, informally or before other boards, prior to when it actually gets on a board’s agenda. And before a contract is bid, the specifications have to be written and there is often consultation with possible bidders as well as with various officials and employees. An official with a conflict should not be involved in any of these informal or formal discussions, at any stage in a matter.

It is a serious problem that disclosure-only conflict policies generally require disclosure only at the time a matter comes before a board officially (usually at the moment the matter is first voted on), even though the matter may have been discussed for months before that. A disclosure-only policy sends the message that conflicts do not have to be dealt with responsibly, that it is okay simply to acknowledge the conflict at the end of the process, and then act as if it did not exist.

To responsibly deal with a conflict, disclosure should occur at the first moment an official or employee has reason to believe that his company might be involved in a development or her brother might be interested in bidding on a contract. And withdrawal, if required or if the official believes it is appropriate, should occur at the same time as the disclosure.

There are many occasions, however, when a matter comes to an official’s attention only when it appears on the agenda of a meeting. In such a situation, the official can at best disclose her conflict when she first sees the agenda or, if she didn’t read it closely, at the start of the meeting or when the agenda item comes up. But what if the official is absent for that meeting, or when the agenda item comes up? Atlanta has a provision that deals with this situation:

Should an official or employee be absent from that meeting or a portion of that meeting, the official or employee is required to verbally disclose the nature of the conflict at the next attended meeting and said disclosure shall be placed on the official records of the agency.

In other words, absence is not an excuse for a failure to disclose or withdraw from a matter. ...

A third issue is what to disclose. It is often not clear from an ethics code’s language whether it is sufficient to say that there is a possible conflict or whether it is necessary to actually describe the conflict. Nor is it often clear how detailed the description must be.

For example, if a council member’s wife is the owner of a company whose contract is about to come before the council, is it enough for the council member to simply say he has a conflict and withdraw from the matter? Or should he say that his wife owns the company whose contract is about to come before the council for approval? If the wife is one of three owners of the company, should he give her percentage ownership? This might be especially important if he decided he did not need to withdraw because his wife only owned 10% of the company and neither worked for it nor participated in its management. In such a case, it is important to provide all the details so that it is clear to the public, and one’s colleagues, that there is only a de minimis conflict that does not merit withdrawal.

But no matter what the situation, it is best to give a detailed description of a conflict, because otherwise it looks like the official is hiding something. Disclosure is not the minimal act of someone ashamed of or trying to hide a special relationship. It is the maximal act of someone dealing responsibly with a conflict. In this instance, for example, the wife of a council member would likely know the other council members. If the council member simply withdrew with a limited explanation, the other council members may not realize that, when the wife talked to them about the matter, she was pushing her own cause. The wife might have done business with one of them, putting them in a conflict situation. All relevant information should be disclosed by the official or by the individual or company with whom he has a special relationship, if they have a better command of the facts. It is, however, not necessary to provide details, such as the ownership percentage or the value of ownership in instances where the official is going to withdraw.

The worse thing that could happen, for the image of the council as a whole (and it is important to keep in mind that it is the reputation of the government, not the individual, that matters most) is for the council to vote for the contract while the husband remains silent about the nature of his conflict, and then it comes out that the council was secretly giving their colleague’s wife a contract, and that two of them had themselves done business with her in recent years. This makes it look like a conspiracy. No one will believe that the other council members knew nothing about the wife’s involvement.

It is valuable for boards, agencies, and departments to facilitate the disclosure process, in order to make it easier for officials and employees, as well as the public, to recognize the existence of possible conflicts and deal with them openly and responsibly. Board members should be told the names of every principal of every business that comes before their board, and be asked to state any relationship they have with any of the people involved, anything from living down the street to being employed by them. This is done with juries across the country. If ordinary citizens can answer these questions, there’s no reason why officials can’t. Then, if the official chooses not to withdraw from the matter, the board is free to discuss whether it feels withdrawal is appropriate or that the official should seek ethics advice, and the public can request such a discussion.

It is also very helpful to officials and employees for the local government to make a frequently-updated list of contractors and their principals available, and to provide regularly updated lists of those currently seeking contracts, permits, and grants.

Here is the City Ethics Model Code transactional disclosure provision, which provides detailed guidelines on this most complex form of disclosure:

1. Whenever an official or employee has reason to believe that he or she should withdraw from participation under §100.3 of this code, he or she must:

a. immediately refrain from participating further in the matter, formally or informally;

b. promptly inform the appropriate individual or body, pursuant to subsection 3 below, that he or she has a conflict, and the nature of the conflict; and

c. promptly file with the ethics commission [or city clerk, if there is no commission] a signed statement disclosing the reasons for withdrawal or, if a member of a board or commission, state this information on the public record of that board or commission.

2. Whenever someone suggests or requests (privately or publicly) that an official or employee withdraw from participation under §100.3 of this code, and he or she chooses not to do so, he or she must promptly file with the ethics commission [or city clerk, if there is no commission] a signed statement disclosing the reasons for refusing to withdraw or, if a member of a board or commission and if the suggestion was made publicly at a meeting of that board of commission, state this information upon the public record of that board or commission.

3. An official or employee is required to inform the appropriate individual or body pursuant to subsection 1b, as follows:

a. If a member of a board, commission, committee, or authority, inform the chair or the entire body at a public or executive session (if at an executive session, the disclosure should also be made after going back into regular session); if the chair, inform the secretary;

b. If not on such a body and appointed by the city manager/director of administration/mayor, inform the city manager/director of administration/mayor;

c. If an employee of the Board of Education, inform the Superintendent of Schools;

d. If the Superintendent of Schools, inform the chair of the Board of Education;

e. If an elected official, inform the mayor;

f. If a consultant, inform the chair or head of the board, department, or agency that hired the consultant.

4. An official or employee with an interest in a contract must disclose this interest prior to the first of any of the following event of which the official has knowledge:

a. The preparation of the contract specifications.

b. The solicitation of the contract.

c. The bidding of a contract.

d. The negotiation of a contract.

e. The approval of the contract.

5. An official or employee need not make a disclosure pursuant to this section if he or she, with respect to the same matter, has already made such a disclosure.

Visitor (not verified) says:

Regarding recusal...

How does it effect education board members? Our llittle village is trying to close our little public elementary school and break away from our regional, dysfunctional supervisory school district and re-open as an Independent School. Obviously the supervisory and the State ed. department have strong motive to keep us from doing so despite the fact that are community overwhelmingly voted to do so by a 21/2 to 1 margin. The State has stalled the matter-tabling it indefinately and has now asked us to hold another public vote.

The chairperson of our local school district who also serves on our State Board of Education has been asked to recuse herself as this matter goes to the State Board and the second vote is pending. This chairperson has gone out of her way to incite local residents to vote against this initiative, has been observed by numerous people passing notes with questions to ask our board regarding the matter, has continued to speak negatively to fellow district and State board members about what we are trying to accomplish and it is suspected (and can probably be proved) that she has spearheaded a negative campaign to effect our upcoming vote via organizing residents to put up lawn signs urging people to vote negatively in our next election. I should note that she is not a resident of our village.

Does this fall under Robert's Rules of recusal?

Thank You,
Heather

Robert Wechsler says:

Your school district chair/state board of ed member wears two hats. When a matter involving her school district comes before the state board of ed, as in this instance, she should withdraw from the matter because she is conflicted. This is true even if she had never said a word about the matter at the school district level. Whether or not there is a law that requires her withdrawal is really not the point. The point is that she is conflicted — she has obligations to two different constituencies and she cannot represent both of them in a matter that involves both her roles. She must therefore deal with her conflict in a responsible manner, and the way to do this is to withdraw from the matter before the state board of ed (this is often referred to as "recusal," but this is a judicial term and most people do not have a clear understanding what it means).

Robert Wechsler says:

When someone represents a party that is coming before a body on which he serves, but does not represent the party in the particular matter, what criteria affect whether or not there should be a recusal?

For example, if a lawyer has represented a client with respect to one or two transactions, but not with respect to the one coming before, say, the council, should the lawyer recuse himself or herself? Must there be an ongoing relationship, or representation relevant to the matter at hand? Must the representation have occurred in the very recent past? Must the representation have been direct, rather than by someone else in a firm? Does the amount of the fees involved matter? That is, is a little tax advice costing $300 significantly different from handling a big piece of litigation for $50,000? Should potential, future benefits from the relationship be considered, as well, particularly if they have been discussed?

And what if it's not a lawyer, but a realtor. You've found someone a house, and now she's before you? Is this representation relevant even to other real estate transactions? What if you've found someone a building to invest in? Is this representation relevant to other business real estate transactions that come before a board? Does the size of the municipality, and the number of local realtors, matter?

This is the kind of area where it would be useful to specify criteria and to provide examples to show what sort of relationship requires recusal and what sort does not. The criteria could be included in the code or in comments to the code. The examples could be included in the comments to the code or in an explanatory publication online and/or in print.

The criteria I have considered above are:

  • Frequency
  • Recency
  • Relevance
  • Directness
  • Amount of Benefits, Past and Potential
  • Size of Municipality
  • What other criteria do you feel should be considered?

    Robert Wechsler
    Director of Research, City Ethics
    rwechsler@cityethics.org

    Robert Wechsler says:

    Again I came across a lawyer saying that recusal is not an abstention, but something more. "The problem with recusal," said the Orleans County League of Women Voters speaker on "Better Government: Avoiding Conflicts of Interest," "is that recusal in a public body is equivalent to a negative vote."

    It is true that for someone who has, effectively, the deciding positive vote, a vote can be lost due to recusal. But this is rare, and if the vote is so close and one of those in favor does have a conflict of interest, it is far more important for public trust that the individual not vote than when a vote is unanimous.

    This is why someone should not be in a postion where there are serious conflicts, because he or she would not be able to represent constituents due to recusal. Recusal is not negative. What is negative is allowing oneself to have more than a very occasional and minor conflict. If one does not want to have to recuse oneself, one should seek an office where the likelihood of recusal is very small.

    There will be conflicts, but a public servant should do his or her best to keep them to a minimum.

    Robert Wechsler
    Director of Research, City Ethics
    rwechsler@cityethics.org

    Robert Wechsler says:

    Nearly all ethics codes use the legal/biblical "shall" with respect to recusal where there is a possible conflict of interest (I used the more down-to-earth "must" in this model code). But some people, especially officials the "shall" could be used against, prefer the less binding word "may," a requirement far short even of "should," which at least provides a norm and guideline.

    The University of Tennessee's Municipal Technical Advisory Service (MTAS)(which operates in cooperation with the Tennessee Municipal League) recently prepared a model municipal ethics code which uses the word "may" in this context. An official "shall" disclose a possible conflict, but only "may" opt for recusal. (Every muncipality in Tennessee must adopt an ethics code by July 1, 2007, but they do not have to adopt the MTAS model.)

    This became a major issue in Tullahoma, Tennessee, according to an article in the Tullahoma News. Half the Board of Mayor and Aldermen felt that "may" was too weak and that recusal should be required under these circumstances. The mayor and two aldermen, with the support of the city attorney, argued that "shall" is too prohibitive and restrictive, and could lead to problems.

    But the best problem the mayor could come up with, according to the newspaper report, is not a problem at all: that virtually all board members own property and so could not vote for a property tax cut (by the way: who was the last person who had the opportunity to vote for a property tax cut?). There is no conflict when an official has no special personal interest. In fact, those in favor of the word "shall" put up an amendment making this completely clear, with examples and everything, and it was voted down.

    It is almost unheard of to use "may" in such a situation, because it requires nothing, provides no guidance, and cannot be enforced. In fact, it even suggests that a board's members may not ask an official to recuse himself or herself, which is the principal form of enforcement of the requirement of recusal.

    According to the article, the city attorney made a typical lawyer's argument for "may": the MTAS model is a uniform standard that will be tried and tested. Yes, this will be true in Tennessee municipalities that either do not look critically at the model code and or have lawyers who make disingenuous arguments. Because while "may" will be tried and tested in Tennessee, "shall" is already tried and tested across the country, and throughout the world.

    According to the article, the other argument made for "may" was that requiring disclosure is enough. That if someone discloses a conflict and still votes, he or she will be voted out of office (assuming, of course, that the individual was not appointed, and assuming that the failure to recuse was reported in local news media accurately and with sufficient explanation that the situation is clear to the average voter as an unethical act, and that most voters actually see or hear this coverage and see it as anything more than common politics).

    Disclosure is very important, but it's unlikely that anyone will be voted out for voting, especially in a town where officials can point out that the law says it's okay to vote, where, in fact, it is their duty to vote, as they will probably argue. In any event, the damage will have been done, the votes will still stand, and those who do vote will have benefited from their position in the government.

    From the way the matter is presented in the article, this appears to be another instance of a city attorney using his expertise, as well as his loyalty to a mayor, to confuse an issue and to make an ethics code less binding and more unenforceable. One of the goals of this Project is to provide people with the arguments to make against such cleverness and intellectual dishonesty (see my blog entry on intellectual dishonesty).

    I would like to emphasize here that an ethics code is actually a conflict of interest code. Conflicts of interest are central to the code, and they are controlled in two ways: disclosure and recusal. Taking away one of these leaves a central purpose of the code with only one leg to stand on.

    I asked MTAS to say why it used "may" in its model code. The answer, from Legal Consultant Dennis Huffer, was that "the state statute requiring the drafting of the code states that the code must contain provisions requiring city officials and employees to disclose their personal interests that affect or might appear to affect their discretion. This language implies that the discretion can be exercised as long as the personal interest is disclosed."

    I responded that the MTAS model code goes beyond the statute's narrow definition of "ethical standards" that MTAS is limited to disseminating, which includes only the disclosure of certain gifts and personal interests. The MTAS code also prohibits the acceptance of certain gifts, and the use of confidential information, municipal time and facilities, and position and authority for personal gain.

    Mr. Huffer's response was "We do go beyond the fairly narrow dictates of the state statute because most cities in Tennessee already had extensive ethics provisions in existing ordinances. We tried to combine those provisions dictated by the state statute with what many cities already had into one document, along with citations to ethics provisions in state law, so city officials, employees, and citizens could go to one place and more than likely find the applicable ethics provision. I don't think these additional provisions in any way conflict with the state statute."

    And yet requiring recusal would, apparently, conflict with the statute because this requirement does not appear there. And isn't recusal required in Tennessee municipal ethics codes? If not, it is a highly unusual state.

    Finally, I noted that "provisions of the MTAS model code prohibit officials and employees from obtaining financial gain through the use of their position; how does this differ from prohibiting officials using their position to vote for something that will give them financial gain?"

    Mr. Huffer did not respond to this, except by explaining and giving an example of the prohibition of financial gain through the use of one's position.

    To the extent the use of "may" is an act of legislative interpretation -- that the MTAS can go beyond the statute in areas not mentioned at all, but not in areas that are mentioned -- it was inconsistently employed, because the MTAS model code prohibits gifts when the statute only refers to disclosing them. I feel that MTAS should either get rid of the prohibition on gifts, require recusal, or publicly explain, to Tennessee municipalties and the government ethics community, why it chose not to require recusal.

    Robert Wechsler
    Director of Research, City Ethics
    rwechsler@cityethics.org

    Robert Wechsler says:

    Generally, the rule is that an abstention is not taken into account in determining a vote. That is, if there are 7 people on a board present at a meeting, and 1 of them abstains, 4 votes are necessary for a majority, just as before. Similarly, if 6 people on a board are present and 1 of them abstains, 3 votes are necessary for a majority.

    But this general rule, stated in Robert's Rules of Order, is not necessarily recognized everywhere, as can be seen in a recent article in the Kane County Chronicle. In Sugar Grove, Illinois, a member of the town's governing body abstained due to a conflict of interest, and his abstention was applied to the majority vote, allowing a motion to pass.

    According to the article, area attorneys said that there is no law that defines abstention policies, so that one has to depend on judicial precedent. Since few board and commission members are familiar with court decisions on the subject, they do not understand the implications of abstaining. In addition, abstention rarely makes a difference in votes, because most votes are unanimous. So it's something that doesn't come up.

    The abstaining member in this situation was opposed to the motion, but said he would have abstained in any event, because he was required to by law.

    It would not hurt for an ethics code to restate the Robert's Rule on abstention (assuming the municipality uses it in its meetings), so that it is clear to all officials what the effect of their abstention is.

    Robert Wechsler
    Director of Research, City Ethics
    rwechsler@cityethics.org

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