Cases from the Salkin Roundup I

Prof. Patricia Salkin, director of the Government Law Center at Albany Law School and author of the Law of the Land blog, has published another of her regular roundup of what's been happening recently in the ethics of land use. Her focus is on cases that have gone to court. I will be discussing a few of the cases in this and further blog posts.

Elected Officials Are Not Expected to Be Unbiased
The first case, from New Jersey, involves the members of a zoning board of adjustment. Eight out of nine of them are members of the local taxpayers association, which has argued publicly that a nightclub would be bad for the community. After the zoning enforcement officer told the nightclub owner that he was in violation of borough ordinances, the nightclub owner appealed to the zoning board and called for the eight members to disqualify themselves.

The court determined that membership was more than a "remote and nebulous interest," because members pay fees. It found that a perceived conflict is as harmful to the public's confidence in its representatives as an actual conflict, and therefore ordered that replacement members be chosen.

As Salkin points out, the decision ignored the Rule of Necessity, which allows disclosure without withdrawal when a conflict would mean that a board lacked a quorum and, therefore, could not meet.

In my opinion, the court is confused about conflicts of interest. For the purpose of conflicts, being a member of a community organization has nothing to do with fees paid. This is an inappropriately legalistic view. Just because money is involved, it doesn't mean that an interest is created or that benefits are derived. No benefits derive from paying a membership fee to a community organization other than getting too many e-mails and possibly voting for officers.

I think one problem some judges have with conflicts is that their view is that of a judge, who is expected to be unbiased. Elected officials are not expected to be unbiased. In fact, they're often elected to be very biased. For example, zoning officials are often elected because they oppose or support development, and they often become involved in land use matters, and known to the community, through their membership in community organizations.

It is absurd to say that someone elected because of their efforts on behalf of a community organization has a conflict with respect to issues dealt with by that community organization. A conflict arises not with respect to such issues, but only possibly with respect to a matter personally involving a fellow community organization officer whom an official might be seen as favoring. Such a conflict would be unlikely to be dealt with in an ethics code, but there could be situations where it would be best for an official to withdraw from such a matter. And an official should not be an officer of the organization while serving in office. For more on this topic, see an earlier blog post.

Government Ethics Is Not About Technicalities
In a Connecticut decision last year, the court made a reasonable decision regarding a zoning board member who failed to follow protocol. Believing that she had a possible conflict, she avoided participation in the proceedings. Her only related action was to vote to schedule a public hearing, which had nothing to do with the content of the matter. But the town charter requires disclosure of a conflict in writing, and a knowing violation nullifies board action.

The court found that since all the parties knew about the conflict and the board member did not participate in the matter, it would be an "improper exaltation of form over substance to invalidate the actions of the Board." You may not be able to biased as a judge, but you can use words like "exaltation" in a non-religious context!

Just yesterday, I wrote about the importance of dotting i's and crossing t's where there's a possible appearance of impropriety. But that dotting and crossing had to do with ensuring that a transaction was done so that it could not be seen as favoring the seller. Here, one i was not dotted, but the disclosure was made and the official withdrew, and that is what is important. Putting the disclosure in writing changes nothing, and something that changes nothing should not nullify a decision. The occasion should be used to educate other officials about the correct procedure for dealing with a possible conflict.

Ethics is not about technicalities. It is about dealing responsibly with a conflict. When an official deals responsibly with a conflict, and a lawyer tries to catch the official on a technicality in order to benefit her client, this is a distortion of government ethics, an attempt to use the words of an ethics code to undermine its spirit.

Robert Wechsler
Director of Research-Retired, City Ethics

---