Michigan Women's Rights Statute and an Official's Personal Interests

Rarely does someone make a comment to one of my blog posts that brings such a fresh look at a standard conflict of interest issue as the one made recently by Catherine Mullhaupt, Esq., Director of Member Information Services at the Michigan Townships Association.

It is important to recognize that the interest in having government officials both make and be seen to make decisions in the public interest rather than in their personal interests must be balanced against other public interests. But I had never thought before that one of those interests could be women's rights.

Ms. Mullhaupt points out in her comment a Michigan law that states, "a married woman is entitled to own, retain and dispose of her own earnings and to make contracts independently of her husband." I presume that this is law everywhere in the U.S.

She goes on to say that, "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 (1930); Rupert v. Van Buren County, 296 Mich. 240 (1941); Michigan Attorney General Opinions 316, 4869, 6151, 6206, 6630, 6736)."

Here is what the Thompson case says, in part (emphasis mine):

In passing upon the question presented, we should be mindful of section 11478, 3 Comp.Laws 1915, which provides:

"Each and every married woman in the State of Michigan shall be absolutely entitled to have, hold, own, retain and enjoy any and all earnings acquired by any such married woman as the result of her personal efforts; and to sell or otherwise dispose of any and all such earnings, and to make contracts in relation thereto to the same extent that any such married woman could have or do if unmarried."

Notwithstanding the provision of the school law broadly provides that a school officer shall not "be personally interested in any way whatever, directly or indirectly" in the contract with the district, we think it is not applicable to the case here presented. Under section 11478, above quoted, Mr. Spoelman clearly has no financial interest in this contract. Any wages which may be paid Mrs. Spoelman as a teacher will be her individual property the same as though she were an entire stranger to Mr. Spoelman. The statute does not apply to one having only a remote interest which a school officer might have under many and varied circumstances.

Wow! Because a woman's property is her own, a conflict of interest provision cannot apply to a wife's interests. The logic does not stop there. As Ms. Mullhaupt states, since the genders are equal, a conflict of interest provision could not apply to the interests of a husband, either. And since the property of parents, children, and siblings -- not to mention an outside employer or business -- is as absolutely theirs as a spouse's, a conflict of interest provision could not apply to them either.

Thus, it is a consequence of equal property rights that a government official can have a conflict only with respect to his direct personal interests, not to those of people or entities associated with the official. In other words, all of an official's family members and business associates would have be treated by ethics commissions as though they were "entire strangers" to the officials. Talk about legal fictions!

This logic represents a misunderstanding of what conflicts of interest are. They have nothing to do with the property of a government official's spouse, parents, children, sibling, or business. They have to do with the interests of officials themselves. These interests are seen to include others' interests because (1) the financial interests of individuals are generally regarded to include their households, however their assets are held and their income apportioned, and (2) the personal interests of individuals are generally regarded to include their immediate families, even though their assets and income are completely separate. In short, when government officials act in the interests of their families and businesses, they are acting, and are seen by the public to be acting, in their personal interest rather than the public interest.

In the Michigan situation Ms. Mullhaupt commented on, an official voted to give her husband a government position. Conflict of interest provisions do not affect a spouse's right to apply for or take a position (although nepotism provisions can), only the right of the official to participate or vote on  the matter. The reason is that the official will not only be biased, but will appear to the public as biased, thereby undermining trust in government officials to act in the public interest rather than in their personal interest.

Even if one objects to having household interests included in an official's financial interest, there is still the personal interest an individual has in his or her immediate family. The spouse's situation with respect to an official's personal interest is no different from a parent's or child's interests, and being a parent or adult child has nothing to do with gender or property rights. Therefore, the same is true of being an official's spouse.

Yes, there will be times when, if an official does not vote, a spouse might not get the job. But no one has a property right to a government job. And if there were such a right, it would have to be balanced against the public's right to have its government not treated like a family business.

In addition, the online AG opinions mentioned by Ms. Mullhaupt are not on point, except the first partially, and there the AG found there to be a conflict. Here are the conclusions of the AG opinions (all direct quotes; I distinguish the cases in brackets):

6151:  an automobile dealership corporation in which the wife of a legislator has a separate interest may do business with the State provided that the legislator does not solicit the contract, takes no part in negotiations for approval of or amendment of the contract, and in no way represents either party in the transaction.

6206:  the member of a community mental health board may lawfully vote upon proposals that directly or indirectly affect the functions of the facility or program funded or directly controlled by the board which employs the spouse of the board member in question. [spouse is a contractor's employee, not seeking a job with government]

6630: insurance matter, not relevant

6736: a conflict of interest does not exist if an individual serves as an attorney for a school district at the same time his spouse serves as a teacher in the same school district. [attorney is not in a decision-making position]

Robert Wechsler
Director of Research-Retired, City Ethics

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