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A Michigan Law Requiring Local Government Legislators to Vote
Tuesday, June 23rd, 2009
Robert Wechsler
In her comment to my blog
post on a Michigan recusal matter, Catherine Mullhaupt of the
Michigan Townships Association not only pointed out the effect of a
women's property rights act on local government conflict of interest
law (see my blog post on
this), but also pointed out a
Michigan law (42.7(6)) that requires charter township board members
to vote, except on a vote to appoint oneself to a township office. Only
a unanimous vote of the board can allow a board member to abstain.
According to Ms. Mullhaupt, this represents "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.'"
I disagree with with this analysis of the law, as well as with the law itself. Yes, the public's interest in being represented must be balanced against its interest in having its representatives not vote in their personal interest. But this balancing does not involve the popularity or controversial nature of the representative's vote. It involves placing limits on what constitutes a conflict of interest sufficient to require recusal, and what freedom is given to a legislator to decide what is the responsible way to deal with a conflict.
Voting where one has a conflict is not the sort of unpopular vote contemplated in the writing of laws and constitutional provisions to protect legislators. What is contemplated is the sort of unpopular vote that might go against the view of many or most constituents. Voting with a conflict is unpopular or controversial because of the fact of the vote itself. The problem with such votes is not that constituents might not agree with the board member's views, but that constituents don't want the board member to vote at all.
The Michigan law, passed in 1947, was done at a time when the balancing of ethics considerations against constituents' rights to be represented was decidedly in the favor of allowing legislators to vote. Among township legislators themselves, who are represented by the Michigan Townships Association, the balance still clearly leans toward allowing legislators to vote. But the trend since 1947 has been toward recognizing the importance of recusal when there is a conflict, and placing as few restrictions in the way of the legislator's right to handle his or her conflicts responsibly via recusal.
A law such as Michigan's does, in the name of constituents' rights, what most legislators want. It takes the responsible handling of conflicts out of the individual legislator's hands. A legislator with a conflict, whether a conflict defined by law or another sort of conflict that creates an appearance of impropriety, can hide behind a law that clearly favors voting and the will of the board, whose members generally favor voting (in fact, only one member need favor voting with a conflict). A Flint Journal editorial this Sunday came out against the state law and in favor of recusal.
Another problem with this law is that it places all the emphasis on voting, ignoring a conflicted legislator's participation in a matter. Since this is ignored, a legislator could, when a matter arises, choose to participate only by voting. Or the legislator could tell the board that he or she will not participate and would like not to vote, asking for its permission to do so. But neither the law nor the Michigan Townships Association considers nonparticipation. Thus, they do not even consider the responsible way of dealing with a conflict that is favored by ethics experts and by the law of many states, local governments, and nations.
Ms. Mullhaupt quoted from the ASPA Code of Ethics, but she quoted the wrong language for this situation. The correct language would have been: "Zealously guard against conflict of interest or its appearance."
Robert Wechsler
Director of Research-Retired, City Ethics
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According to Ms. Mullhaupt, this represents "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.'"
I disagree with with this analysis of the law, as well as with the law itself. Yes, the public's interest in being represented must be balanced against its interest in having its representatives not vote in their personal interest. But this balancing does not involve the popularity or controversial nature of the representative's vote. It involves placing limits on what constitutes a conflict of interest sufficient to require recusal, and what freedom is given to a legislator to decide what is the responsible way to deal with a conflict.
Voting where one has a conflict is not the sort of unpopular vote contemplated in the writing of laws and constitutional provisions to protect legislators. What is contemplated is the sort of unpopular vote that might go against the view of many or most constituents. Voting with a conflict is unpopular or controversial because of the fact of the vote itself. The problem with such votes is not that constituents might not agree with the board member's views, but that constituents don't want the board member to vote at all.
The Michigan law, passed in 1947, was done at a time when the balancing of ethics considerations against constituents' rights to be represented was decidedly in the favor of allowing legislators to vote. Among township legislators themselves, who are represented by the Michigan Townships Association, the balance still clearly leans toward allowing legislators to vote. But the trend since 1947 has been toward recognizing the importance of recusal when there is a conflict, and placing as few restrictions in the way of the legislator's right to handle his or her conflicts responsibly via recusal.
A law such as Michigan's does, in the name of constituents' rights, what most legislators want. It takes the responsible handling of conflicts out of the individual legislator's hands. A legislator with a conflict, whether a conflict defined by law or another sort of conflict that creates an appearance of impropriety, can hide behind a law that clearly favors voting and the will of the board, whose members generally favor voting (in fact, only one member need favor voting with a conflict). A Flint Journal editorial this Sunday came out against the state law and in favor of recusal.
Another problem with this law is that it places all the emphasis on voting, ignoring a conflicted legislator's participation in a matter. Since this is ignored, a legislator could, when a matter arises, choose to participate only by voting. Or the legislator could tell the board that he or she will not participate and would like not to vote, asking for its permission to do so. But neither the law nor the Michigan Townships Association considers nonparticipation. Thus, they do not even consider the responsible way of dealing with a conflict that is favored by ethics experts and by the law of many states, local governments, and nations.
Ms. Mullhaupt quoted from the ASPA Code of Ethics, but she quoted the wrong language for this situation. The correct language would have been: "Zealously guard against conflict of interest or its appearance."
Robert Wechsler
Director of Research-Retired, City Ethics
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