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Disclosure Is A Necessary Part of Recusal
Thursday, September 24th, 2009
Robert Wechsler
Recusal is a touchy subject for government officials, for two principal
reasons. One, withdrawing from a matter can appear to constitute an
admission of misconduct. This is because so many people, and even
ethics codes, consider it wrong to have a conflict. Actually, recusing
oneself is a way of dealing responsibly with a conflict, and is the
opposite of misconduct.
Two, raising the issue of a conflict can disclose information the official would rather keep personal. After all, the conflict involved is between personal interests and the public interest, so some sort of personal interest must be disclosed if a conflict is disclosed.
This is why there is reluctance among officials to disclose what the conflict was that led them to recuse themselves. Officials would prefer to state they have a conflict requiring recusal, and leave it at that. This is effectively what, according to an article in today's New York Times, the former U.S. Attorney for New Jersey did when the personal interest was a relation to "a fearsome and ranking member of the Genovese crime family: twice convicted of racketeering, sentenced to 25 years in federal prison, and linked by investigators to several grisly murders."
According to the article, the prosecutor had nothing to do with a new case against his in-law, whom he scarcely knew, but he did not disclose his relationship to the defendant or his decision to recuse himself. He told the Times, “My view at the time was, I had had nothing to do with the case, I’d had no involvement with it, and I didn’t think it was of any import to anyone why I’d recused. It was a personal matter; it was not a professional matter.”
But when there is a conflict, a personal matter is a professional matter. By not disclosing the reason for recusal, or even the fact of recusal in this instance, colleagues cannot be aware of anything the official could do that might have some effect on the case. And they cannot know that it would be inappropriate to allow the official to know anything about what is going on with the case.
In local government situations, the family member is usually not a criminal. More likely the family member is a contractor, developer, or potential employee. However, there are still issues of confidential information as well as the appearance, especially when the official is high-ranking, of hiding something so that the official can affect a decision behind the scenes, even if he or she withdraws from involvement at a public meeting.
It is important that recusal include disclosure (see §101 of the City Ethics Model Code for disclosure rules). A failure to disclose can undermine the purpose of recusal, and when the reason for recusal comes out, it can make the official look like he was hiding facts so that he could still be involved in or know about the matter in which he has a personal interest.
People have in-laws who are criminals or contractors. Neither reflects on an official's character. But hiding the fact does reflect on an official's ethics.
Robert Wechsler
Director of Research-Retired, City Ethics
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Two, raising the issue of a conflict can disclose information the official would rather keep personal. After all, the conflict involved is between personal interests and the public interest, so some sort of personal interest must be disclosed if a conflict is disclosed.
This is why there is reluctance among officials to disclose what the conflict was that led them to recuse themselves. Officials would prefer to state they have a conflict requiring recusal, and leave it at that. This is effectively what, according to an article in today's New York Times, the former U.S. Attorney for New Jersey did when the personal interest was a relation to "a fearsome and ranking member of the Genovese crime family: twice convicted of racketeering, sentenced to 25 years in federal prison, and linked by investigators to several grisly murders."
According to the article, the prosecutor had nothing to do with a new case against his in-law, whom he scarcely knew, but he did not disclose his relationship to the defendant or his decision to recuse himself. He told the Times, “My view at the time was, I had had nothing to do with the case, I’d had no involvement with it, and I didn’t think it was of any import to anyone why I’d recused. It was a personal matter; it was not a professional matter.”
But when there is a conflict, a personal matter is a professional matter. By not disclosing the reason for recusal, or even the fact of recusal in this instance, colleagues cannot be aware of anything the official could do that might have some effect on the case. And they cannot know that it would be inappropriate to allow the official to know anything about what is going on with the case.
In local government situations, the family member is usually not a criminal. More likely the family member is a contractor, developer, or potential employee. However, there are still issues of confidential information as well as the appearance, especially when the official is high-ranking, of hiding something so that the official can affect a decision behind the scenes, even if he or she withdraws from involvement at a public meeting.
It is important that recusal include disclosure (see §101 of the City Ethics Model Code for disclosure rules). A failure to disclose can undermine the purpose of recusal, and when the reason for recusal comes out, it can make the official look like he was hiding facts so that he could still be involved in or know about the matter in which he has a personal interest.
People have in-laws who are criminals or contractors. Neither reflects on an official's character. But hiding the fact does reflect on an official's ethics.
Robert Wechsler
Director of Research-Retired, City Ethics
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