Does Recusal Require Action and/or Words?

Anonymous

Tue, 10/05/2010 - 12:11

Conflicts

Note: This blog post was posted on September 22, and I accidentally deleted it. This is a reposting. 
 
What
is recusal? More to the point, does the act of recusal require merely
inaction,
or action, or action and words? This has become an issue in the city of
Santa
Fe, but it is important to establish a definition for the purpose of
government
ethics.

According to <a href="http://www.santafenewmexican.com/Opinion/our-view-City-s-ethics-show-ex…; target="”_blank”">an article in the Santa Fe New Mexican</a>
on
Saturday, for three years a council member had hidden the fact that he
had been
counsel to a paving company that is now involved in an investigation of
its
contracts with the city. The council member defended himself by saying
that he
had never voted on any matters involving the paving company. 
 
Defining Recusal 
The <a href="http://www.santafenm.gov/DocumentView.aspx?DID=1272" target="”_blank”">Santa Fe code of ethics</a> provisions
reads as
follows:<ul>
Any
public official shall recuse himself or herself from
participation in or voting on any matter in which he or she has a
conflict of
interest. No public official or public employee shall perform any
official act
with respect to which he or she has a conflict of interest . . .</ul>
It
is not
clear from this language that recusal involves any action or words. It
could,
as the council member argued, involve only inaction. 
 
The word "recuse" does not appear in my Webster's New Collegiate
Dictionary.
Nor does it appear, in the meaning we use, in the Oxford English
Dictionary (as
of the 1987 supplement), except as "object to (a judge) as
prejudiced." In other words, by this definition, it requires action and
words, but someone else's. There is no reflexive meaning, as in "to
recuse
oneself." 
 
What is most important for our purposes is the reference to judges.
Recusal is
a term that until recently applied only to judges. And judges cannot
recuse
themselves from a case by simply not participating or not voting. If
they step
down from the bench, or do not show up, they have to do something and
say
something. Therefore, the original practical meaning of "recusal"
does require action and words. 
 
Recusal in the Legislative Context 
But when applied in legislative and other contexts, the action and
words, in
many instances, are not required. A recusing council member, in many if
not
most cases, may simply fail to discuss the matter, not show up, not
vote, or
abstain, without ever having to explain why, that is, without
disclosing the
existence of a conflict, not to mention identifying the conflict. Some
ethics
codes require that officials step down from the dais when a matter is
being
discussed, but still do not require identification of the conflict. 
 
There are, apparently, two reasons for this. One is the mistaken notion
that
there is something bad about conflicts, that disclosing a conflict is
harmful
to one's reputation (and that what people don't know won't hurt you).
Two is
the fact that many legislators are lawyers, and their conflicts involve
clients. This involves another mistaken notion: that a conflict
involving
a client is confidential. This is rarely the case. 
 
"Recusal" derives from the French verb "récuser," which
means (according to my French-English Larousse) to challenge, to object
to.
There is also a reflexive French verb, "se récuser," which means
to
declare oneself incompetent to judge. In all instances, action and
words are
required. 
 
The problem is that, because a legislator, unlike a judge, is able
simply not
to act, a legislator can act at least partially in his self-interest
(and in
the interest of others involved in the conflict) by hiding the
existence and
facts of the conflict. Because this can be done, it has been done, and
because
it has been done so frequently, it has clouded the whole notion of
recusal. 
 
Solving the Problem 
My solution has been to amend the <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC34…; target="”_blank”">City Ethics Model Code recusal provision</a>
by
adding paragraph 4: "Recusal at a meeting requires the public
announcement, on the record, of the reason for recusal. Recusal outside
of a
meeting requires disclosure in writing of the reason for recusal to the
official or employee's supervisor." This could probably be improved on,
but I would recommend the addition of this sort of language to any
ethics code
that does not make the process of recusal completely clear. 
 
According to <a href="http://www.santafenewmexican.com/local%20news/Ethics-Committee-Code-hea…; target="”_blank”">another New Mexican article</a>,
one Santa Fe
councilor proposed to do this, and the result has been two proposals to
get
public advice on amendments to the ethics code (one <a href="http://www.santafenm.gov/DocumentView.aspx?DID=6536" target="”_blank”">from a task force</a>, the other <a href="http://www.santafenm.gov/DocumentView.aspx?DID=6529" target="”_blank”">from the League of Women Voters</a>).
There is an
implication that the public might object to requiring officials with
conflicts
to publicly disclose them. Really? 
 
How Other Cities Have Dealt with the Problem 
This issue is handled in a great variety of ways in different cities. <a href="http://www.nyc.gov/html/conflicts/downloads/pdf2/books/blu_bk.pdf" target="”_blank”">New York City</a> requires council members
to
disclose to the council and the ethics board, but the requirements vary
with
respect to other officials. Los Angeles, in a rare use of the word
"recusal," requires a formal <a href="http://ethics.lacity.org/pdf/forms/form_recusal51.pdf">Recusal Notification Form</a> to be filled
out and
filed. 
 
<a href="http://www.miamidadeethics.com/RighthandBarResources/Events2009andPrior…; target="”_blank”">Miami-Dade County</a> (§2-11.1(n))
requires only that
an official not participate, <a href="http://www.amlegal.com/nxt/gateway.dll/Pennsylvania/philadelphia_pa/tit…; target="”_blank”">Philadelphia</a> (§20-608(1))
requires public
disclosure, and <a href="http://www.seattle.gov/ethics/etpub/EthicsCode.pdf" target="”_blank”">Seattle </a>(if I'm reading its code
correctly)
requires disclosure in order to get a waiver, requires advisory
committee
members to disclose, and requires disclosure with respect to revolving
door
conflicts, but otherwise it appears that non-participation is adequate. 
 
Postscript 
In his motion to dismiss the complaint against him (something I've
never seen
expressly allowed), the Santa Fe council member who had not disclosed
his
conflict wrote, "With hindsight, I recognize and acknowledge that my
actions created the appearance of an apparent conflict of interest and
that I
could have taken measures to prevent the appearance of an apparent
conflict of
interest."

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