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Sometimes Recusal Is Not Enough (and a City Attorney Goes Where Lawyers Should Not Tread)
Wednesday, November 5th, 2008
Robert Wechsler
According to an
article in today's Denton (TX) Record-Chronicle, the Denton (pop.
106,000) council voted 4-2, with the mayor recusing himself, to give
the city's tax collection contract to the mayor's law firm (he is one
of two partners in the four-lawyer firm).
The firm had the contract before its partner was elected mayor, but the contract ran out in June, and the council's vote was yesterday. It chose from four law firms, and price was not at issue. In fact, the mayor's firm was given the highest percentage of total collections allowed by state law. Nor is this a small town with just one or two law firms.
One of the two dissenters voted for the mayor's firm three years ago. He said he was worried about the "perception of self-dealing" on the council.
The other dissenter is quoted as saying, “To me, this is about something that’s higher than a legal standard. It’s about the integrity of the chair and the office of mayor in our city.”
There are times when recusal is not enough. Even if the contract had gone to a truly competitive bid, I don't think a mayor should be personally (there's only one partner to share the profits with) given a major contract with his city. In addition, a mayor, his partner, or his employee should not be doing what it takes to collect the city's taxes, and the council should not be put in the position of managing the behavior of the mayor as a lawyer representing the city. Of all the roles a lawyer takes, collections is the last one you'd want to give to a mayor.
A similar issue came up in my town last year, when the chair of the Democratic Town Committee, also a fire commissioner, was given the contract to collect taxes. People were up in arms over the tactics he used (the usual collection tactics), and the favoritism given to him, and he wisely gave up the contract immediately. And this guy didn't even have the highly responsible position of mayor.
There's one more wrinkle I'd like to mention. According to the article, the 2005 tax collection contract included "a provision that said workers providing tax collection services 'shall not be employees or officers of, or have any contractual relations with, [the] city.'" That provision does not appear in the new contract. The city attorney "said the city removed the provision after internal and outside attorneys determined that awarding the contract to the mayor’s firm posed no legal conflict of interest."
That doesn't make sense. That provision defined what the city considered a conflict of interest to be in the context of a tax collection contract. What the city attorney said is just a smokescreen for what actually happened: the conflict of interest standard for tax collections was changed, so that the mayor could collect the city's taxes. This is not a legal issue, but a policy issue, and the city attorney should have played no part in making such a policy change, nor should she have defended such a change on legal grounds.
This is a case where an ethics code would not likely provide sufficient guidance. But the basic guidance of the usual questions does work: Does it look and feel bad? Will it lower residents' trust in their city government by making them feel favoritism is a way of life there? Will it require lawyers to twist things and legalize ethics in order to make it seem okay?
Robert Wechsler
Director of Research-Retired, City Ethics
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The firm had the contract before its partner was elected mayor, but the contract ran out in June, and the council's vote was yesterday. It chose from four law firms, and price was not at issue. In fact, the mayor's firm was given the highest percentage of total collections allowed by state law. Nor is this a small town with just one or two law firms.
One of the two dissenters voted for the mayor's firm three years ago. He said he was worried about the "perception of self-dealing" on the council.
The other dissenter is quoted as saying, “To me, this is about something that’s higher than a legal standard. It’s about the integrity of the chair and the office of mayor in our city.”
There are times when recusal is not enough. Even if the contract had gone to a truly competitive bid, I don't think a mayor should be personally (there's only one partner to share the profits with) given a major contract with his city. In addition, a mayor, his partner, or his employee should not be doing what it takes to collect the city's taxes, and the council should not be put in the position of managing the behavior of the mayor as a lawyer representing the city. Of all the roles a lawyer takes, collections is the last one you'd want to give to a mayor.
A similar issue came up in my town last year, when the chair of the Democratic Town Committee, also a fire commissioner, was given the contract to collect taxes. People were up in arms over the tactics he used (the usual collection tactics), and the favoritism given to him, and he wisely gave up the contract immediately. And this guy didn't even have the highly responsible position of mayor.
There's one more wrinkle I'd like to mention. According to the article, the 2005 tax collection contract included "a provision that said workers providing tax collection services 'shall not be employees or officers of, or have any contractual relations with, [the] city.'" That provision does not appear in the new contract. The city attorney "said the city removed the provision after internal and outside attorneys determined that awarding the contract to the mayor’s firm posed no legal conflict of interest."
That doesn't make sense. That provision defined what the city considered a conflict of interest to be in the context of a tax collection contract. What the city attorney said is just a smokescreen for what actually happened: the conflict of interest standard for tax collections was changed, so that the mayor could collect the city's taxes. This is not a legal issue, but a policy issue, and the city attorney should have played no part in making such a policy change, nor should she have defended such a change on legal grounds.
This is a case where an ethics code would not likely provide sufficient guidance. But the basic guidance of the usual questions does work: Does it look and feel bad? Will it lower residents' trust in their city government by making them feel favoritism is a way of life there? Will it require lawyers to twist things and legalize ethics in order to make it seem okay?
Robert Wechsler
Director of Research-Retired, City Ethics
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