A Suit Against Council Members That Squares the Virtuous Circle of Conflict of Interest and Legislative Immunity

For all you local government legislative immunity fans, here's a case you'll enjoy (other local government ethics people should find it interesting, as well). A Virginia state senator has sued members of a city council for what they did in their legislative capacity, despite the fact that she knows she herself cannot be sued for what she's done in her legislative capacity. That's a nice start, isn't it?

According to an article in the Virginian-Pilot, companies created and controlled by Virginia state senator Louise Lucas sued Portsmouth council members (and the council itself) for rejecting her request for low-cost financing for a development in Portsmouth. Lucas accused the council of rejecting her request because its members wanted to control all conference business in the city. She represents Portsmouth in the state senate.

Lucas has again petitioned the city council with respect to a new version of her development, and the issue is -- surprise, surprise -- do council members have a conflict of interest because they have been sued? Should they all abstain from discussing or voting on Lucas's requests? Consider also that Lucas is chair of the Senate Local Government Committee and is accusing council members of racial discrimination (she is an African-American).

As I've been saying, legislative immunity (nowhere mentioned in the article or the editorial that followed it) is just another conflict of interest issue in masquerade.

This is a fascinating situation. There are many issues not dealt with above, such as whether a state senator should be allowed to seek government funds for her businesses; the fact that her suing the city attorney forces the city to hire private attorneys; what is there to be done about an elected official suing other elected officials elected by essentially the same people?; can an elected official sue other elected officials for racial discrimination against herself?

The Virginian-Pilot editorial is one of the most condemnatory I've ever read. Toward the end, it says, "By filing suit against the very people she represents, Lucas has rendered herself useless in the state Senate, at least when it comes to representing Portsmouth." If ever there were a case calling out for legislative immunity to prevent a serious conflict of interest, this is it. The case should be thrown out of court as soon as possible.

The council members would be left angry at the senator, and hardly could be expected to act fairly, but that's not something law or ethics has much to say about.

But most important for government ethics professionals is the fact that this legislative immunity case has been treated as a conflict of interest case, emphasizung how much of an ethics issue legislative immunity is. Conflict of interest and legislative immunity do indeed sit on opposite sides of a single virtuous circle.

For more background, see this earlier article.

Robert Wechsler
Director of Research-Retired, City Ethics

---