making local government more ethical

Three Recusal Case Studies

Here are three different recusal case studies:

Public Recusal Is Not Enough
One of the most important things to emphasize about recusal is that recusal at a meeting is not enough. Recusal is supposed to mean withdrawal from involvement in any aspect of a matter where an official has a conflict of interest. Recusal at a meeting is only withdrawal from the public part of a matter. If the official continues to be involved with the matter behind the scenes, it is, in some ways, worse than ignoring a conflict of interest in public, because then no one knows the official is acting despite a conflict. In fact, it gives the impression that the official is dealing responsibly with his or her conflict, when in fact this is not the case.

According to an article in  Inland Valley (CA) Daily Bulletin, this apparently was the situation with a school board member, who worked behind the scenes to get contracts for his employer. He ended up getting caught and pleading guilty to a felony conflict-of-interest charge, with thirty days in prison. The school board member blamed school district administrators and attorneys for poor advice.

And this may very well have been the case. Too much emphasis is placed on recusal from voting (and in fact this is often the rule), so that many people don't understand that recusal involves withdrawal from all aspects and stages of a matter.

Was There Recusal in the Seventeenth Century?
Here's an interesting conflict in Marblehead (MA), a town I lived in many years ago. Back in the late seventeenth century, Marblehead was one of the largest cities in the colonies, and it hasn't grown much (about 23,000 pop.). Keeping its historic feel is important both for tourism and for town identity.

According to an article in yesterday's Lynn Daily Item, the chair of the Marblehead Old and Historic Districts Commission has a business, Old Town Repair, that specializes in restoring historical windows and doors. The commission rejected a resident's request to put in more energy-efficient double-pane windows that look just like the old single-pane windows, and the resident is accusing the chair of having a conflict, since it is his business to restore single-pane windows, which might go the way of the dinosaur if new, more efficient windows were permitted.

Does the chair have a conflict? He's certainly conflicted, even though he would not necessarily profit from the rejection of any single request for approval of a double-pane window. I would advise him to recuse himself from window and door requests like this, but an ethics commission would have a difficult time deciding whether to find against him for failure to recuse.

The Feeble Defenses of Those Who Fail to Recuse Themselves
Genesee County (MI, home of Flint) has had two recent situations where officials with apparent conflicts voted anyway, according to an article in the Swartz Creek News. A township trustee voted to reappoint her husband as building inspector, and a school board member voted to give his sister, a school superintendent, a raise.

The school board member defended himself by saying
that "he votes as a board member, not as a brother." That's helpful.

The township trustee had a whole host of defenses. She said she checked with the Michigan Townships Association to make sure she could vote on building department issues (does a township association have any authority over or expertise in government ethics?). She says that voters knew who her husband was when she ran for office (he had been building inspector, but had been removed from office). She said that their money is separate (does this mean they don't live together or have children?). And she said that her vote wasn't a tie-breaker: "Even if I wouldn't have voted, he still would have gotten the job."

Would the Michigan Townships Association have told her that none of these arguments is relevant to whether she should have recused herself? Voters didn't know the husband would be reappointed, and didn't vote to let the wife vote for him in any event (and do many voters really know who the building inspector is?). The closeness of the vote is irrelevant to a conflict and, in any event, how can one be sure when discussion begins on a matter, and the choice of recusal must be made, how close the vote will be?

How a couple handles their money is also irrelevant to whether there is a conflict -- he's still her husband. No ethics code distinguishes among couples with different accounting regimes, or even between those married or separated.

Robert Wechsler
Director of Research, City Ethics
rwechsler@cityethics.org
203-230-2548

Catherine Mullhaupt (not verified) says:

Perhaps “no ethics code distinguishes among couples,” but Michigan law does distinguish. And you may believe that “none of these arguments is relevant to whether she should have recused herself,” but Michigan law is relevant.

Michigan statutes, Supreme Court opinions and Attorney General opinions state that a married woman is entitled to own, retain and dispose of her own earnings and to make contracts independently of her husband.

Several court cases and Attorney General Opinions indicate that a public official will not have a legally recognized conflict of interest when the person who may be affected by the decision, financially or otherwise, is the spouse or other family member of the public official. These rulings are based on the principal of law that a spouse or other adult family member is considered an independent person entitled to own, retain and enjoy his or her own earnings separately. (Public Act 216 of 1981, MCL 557.21; Thompson v. School District No. 1 of Moorland Township, 252 Mich. 629; Rupert v. Van Buren County, 296 Mich. 240; Michigan Attorney General Opinions 316, 4869, 6151, 6206, 6630, 6736)

Some might consider that a “feeble excuse,” but others may view it as legal protection for the hard-won rights of women to support themselves and exercise the same legal rights as men. It is stated in Michigan law now because it was not always the case that women could own property--at one time, not so long ago, they were legally viewed to be property.

Michigan law also specifically addresses the ability of a charter township board member to abstain from voting. The township in the example you cited is a charter township.

Under the Michigan Charter Township Act, “Except as otherwise provided in this subsection, a member of the township board who is recorded as present shall vote on all questions decided by the board unless excused by the unanimous consent of the other members present. If, at a meeting of the township board, a member of the township board states that he or she desires to be appointed by the township board to fill a vacancy in a township office, that member may abstain from voting on the appointment to fill the vacancy.” (MCL 42.7(6))

The "except as otherwise provided" language relates to situations where a member of the township board desires to be appointed by the board to fill a vacancy in another township office. In that situation the statute says the member may abstain from voting on the appointment to fill the vacancy. In all other situations the statute expressly states that a member of the township board "shall vote" on all questions decided by the board at which the member is present, unless excused by the unanimous consent of the other board members present.

MCL 42.7 emphasizes the duty of charter township board members to vote on business that lawfully comes before the board. It is a statutory balancing of the public’s interest in having board members avoid conflicts of interest with the public’s interest in having board members perform their duty to vote, even when the decision is difficult or controversial. As the American Society for Public Administration Code of Ethics proposes, a township board member should “be prepared to make decisions that may not be popular.”

A charter township board member may encourage the other board members to consider the appearance of a conflict of interest in deciding whether to allow that member to abstain.

And Michigan Townships Association (MTA) legal counsel have advised that if a charter township board member believes she has a legally recognized conflict of interest, she may make an individual choice to abstain, even though the other board members may have voted to require her to vote. But the instance you described did not involve a legally recognized conflict of interest. (And, apparently, neither did the other example involving a school board member.)

MTA does not advise township officials on individual votes. MTA staff members do, however, provide township officials with information on Michigan statutes, court opinions, Attorney General opinions and MTA legal counsel opinions to help them make informed decisions regarding their authority and responsibilities, including the responsibilities to adhere to the oath of office and to serve in an ethical manner.

The stated goals of Cityethics.org are important and laudable.

As expressed in our association’s mission statement, MTA encourages ethical practices of elected officials who uphold the traditions and unique characteristics of township government and the values of the people of Michigan. Among the association’s stated values are promoting the integrity of township government through knowledgeable, ethical, trustworthy, and accountable elected and appointed officials who are dedicated to democratic principles and sound fiscal management, and embracing integrity as the cornerstone upon which the public’s trust is built.

But your comments do not encourage an objective--and much needed--discussion of ethical codes and practices. I find it hard to believe that you would advocate that a township board member express similarly dismissive comments or make up his mind before hearing information on all sides of a decision on which he was voting. Ethical codes and practices deserve to be the subject of informed and productive dialog between government officials and the people they serve.

Catherine Mullhaupt, Esq.
Director of Member Information Services
Michigan Townships Association
www.michigantownships.org

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