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Transactional Disclosure

This is the place to discuss disclosure of possible conflicts of interest at the point where they arise, that is, where an official or employee's continuing participation in a matter becomes a matter of concern because of a conflict between his or her government role and his or her other roles, business, professional, or personal.

Withdrawal (recusal) is the central act in a conflict of interest situation. Important issues include: whom to inform of a potential conflict, when to recuse oneself, when to allow others to insist on recusal, how open and detailed transactional disclosure should be, and how much to take into account the appearance of impropriety.

Please share your experiences with recusal and the failure to recuse.

101. Transactional Disclosure.

1. Whenever an official or employee* has reason to believe that he or she should recuse himself or herself under 100(3) of this code, he or she must:

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

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

promptly file with the city clerk a signed statement disclosing the reasons for recusal or, if a member of a board or commission, state this information on the public record of that board or commission.

Comment: In subsection 1(c) and in 104(2) there are references to placing information on the public record. This appears to assume that municipal meetings have a published transcript or, at least, a recording, video or aural, that is available to the public. But especially in smaller cities and towns, and in less important meetings, this is not the case. How have cities dealt with this problem of not having a public record to place disclosures on? Is it required that minutes include all disclosures?

2. Whenever someone suggests or requests (privately or publicly) that an official or employee* recuse himself or herself under 100(3) of this code, and he or she chooses not to do so, he or she must promptly file with the city clerk a signed statement disclosing the reasons for refusing to recuse himself or herself 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.

Comment: See the comment to 100(3) for more information.

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

If a member of a board, commission, committee, or authority, inform the chair or the entire body at a public or executive session; if the chair, inform the secretary;

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

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

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

If an elected official, inform the mayor;

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

4. An official or employee* need not file a disclosure statement pursuant to this section if he or she, with respect to the same matter, has, with respect to an interest in a contract* with the city, filed a disclosure statement pursuant to 100(9)(b) of this code.

Comment: Transactional disclosure provides specific disclosure when a conflict arises, that is, when an official or employee*'s personal relationship or interest actually creates a conflict with the public interest. It is at this point that it is most important that the official or employee* seriously consider the effects of this conflict on his or her actions or judgment, as well as the effects on how his or her involvement would appear to the public if it knew about the conflict.

Subsection 3: These specific guidelines to informing of conflicts should be adapted to each city's particular form and structure.

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Robert Wechsler says:

It might be useful to set up a clear process for transactional disclosure at board meetings. This can be done in an ethics code, in written guidelines, or informally (for the sake of clarity and fairness to applicants, I would argue that the process should be put into writing and made easily accessible).

Red Bank, New Jersey has instituted such a process for its Zoning Board of Adjustment. The board's attorney, partly in response to lawsuits brought against board members for undisclosed conflicts of interest, set up the process. Board members are told the names of every principal of every business that comes before them, and they must state any relationship they have with any of the people, anything from living down the street to being employed. The board attorney then determines if this constitutes a conflict sufficient to require withdrawal from the matter. The disclosure process is done in public.

It is not clear, from the article I read about this, whether the process is done before the matter is heard or before a vote is taken, or whether it affects only the vote or participation in consideration of the matter. I favor doing it before the matter is heard, and asking for recusal that includes non-participation in the entire matter.

Robert Wechsler
Director of Research, City Ethics
[email protected]