Does Recusal Require Action and/or Words?

Note: This blog post was posted on September 22, and I accidentally deleted it. This is a reposting.

What is recusal? More to the point, does the act of recusal require merely inaction, or action, or action and words? This has become an issue in the city of Santa Fe, but it is important to establish a definition for the purpose of government ethics.

According to an article in the Santa Fe New Mexican on Saturday, for three years a council member had hidden the fact that he had been counsel to a paving company that is now involved in an investigation of its contracts with the city. The council member defended himself by saying that he had never voted on any matters involving the paving company.

Defining Recusal
The Santa Fe code of ethics provisions reads as follows:

Any public official shall recuse himself or herself from participation in or voting on any matter in which he or she has a conflict of interest. No public official or public employee shall perform any official act with respect to which he or she has a conflict of interest . . .

It is not clear from this language that recusal involves any action or words. It could, as the council member argued, involve only inaction.

The word "recuse" does not appear in my Webster's New Collegiate Dictionary. Nor does it appear, in the meaning we use, in the Oxford English Dictionary (as of the 1987 supplement), except as "object to (a judge) as prejudiced." In other words, by this definition, it requires action and words, but someone else's. There is no reflexive meaning, as in "to recuse oneself."

What is most important for our purposes is the reference to judges. Recusal is a term that until recently applied only to judges. And judges cannot recuse themselves from a case by simply not participating or not voting. If they step down from the bench, or do not show up, they have to do something and say something. Therefore, the original practical meaning of "recusal" does require action and words.

Recusal in the Legislative Context
But when applied in legislative and other contexts, the action and words, in many instances, are not required. A recusing council member, in many if not most cases, may simply fail to discuss the matter, not show up, not vote, or abstain, without ever having to explain why, that is, without disclosing the existence of a conflict, not to mention identifying the conflict. Some ethics codes require that officials step down from the dais when a matter is being discussed, but still do not require identification of the conflict.

There are, apparently, two reasons for this. One is the mistaken notion that there is something bad about conflicts, that disclosing a conflict is harmful to one's reputation (and that what people don't know won't hurt you). Two is the fact that many legislators are lawyers, and their conflicts involve clients. This involves another mistaken notion:  that a conflict involving a client is confidential. This is rarely the case.

"Recusal" derives from the French verb "récuser," which means (according to my French-English Larousse) to challenge, to object to. There is also a reflexive French verb, "se récuser," which means to declare oneself incompetent to judge. In all instances, action and words are required.

The problem is that, because a legislator, unlike a judge, is able simply not to act, a legislator can act at least partially in his self-interest (and in the interest of others involved in the conflict) by hiding the existence and facts of the conflict. Because this can be done, it has been done, and because it has been done so frequently, it has clouded the whole notion of recusal.

Solving the Problem
My solution has been to amend the City Ethics Model Code recusal provision by adding paragraph 4:  "Recusal at a meeting requires the public announcement, on the record, of the reason for recusal. Recusal outside of a meeting requires disclosure in writing of the reason for recusal to the official or employee's supervisor." This could probably be improved on, but I would recommend the addition of this sort of language to any ethics code that does not make the process of recusal completely clear.

According to another New Mexican article, one Santa Fe councilor proposed to do this, and the result has been two proposals to get public advice on amendments to the ethics code (one from a task force, the other from the League of Women Voters). There is an implication that the public might object to requiring officials with conflicts to publicly disclose them. Really?

How Other Cities Have Dealt with the Problem
This issue is handled in a great variety of ways in different cities. New York City requires council members to disclose to the council and the ethics board, but the requirements vary with respect to other officials. Los Angeles, in a rare use of the word "recusal," requires a formal Recusal Notification Form to be filled out and filed.

Miami-Dade County (§2-11.1(n)) requires only that an official not participate, Philadelphia (§20-608(1)) requires public disclosure, and Seattle (if I'm reading its code correctly) requires disclosure in order to get a waiver, requires advisory committee members to disclose, and requires disclosure with respect to revolving door conflicts, but otherwise it appears that non-participation is adequate.

Postscript
In his motion to dismiss the complaint against him (something I've never seen expressly allowed), the Santa Fe council member who had not disclosed his conflict wrote, "With hindsight, I recognize and acknowledge that my actions created the appearance of an apparent conflict of interest and that I could have taken measures to prevent the appearance of an apparent conflict of interest."