Recusal

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

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:

What other criteria do you feel should be considered?

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

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

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

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