Legislative Immunity: An Official's Motive Is Not At Issue in a Conflict Situation

A poor and disconcerting judicial decision on local legislative immunity came down on May 24 from the U.S. District Court for the District of Kansas, Kickapoo Tribe v. Black.

The tribe made the argument in its brief that a watershed district board's members should not be able to raise a defense of legislative immunity when (1) two of them owned property in the project area under consideration by the board, and (2) board members participated in activities that made them appear to be seriously biased, including, with the aid of the Kansas Farm Bureau, lobbying trips to Washington, D.C., and letter writing campaigns to (a) convince local municipal and county governments to oppose the project, and (b) to sway public opinion against the project.

The court dismissed this argument. It wrote in its decision, "The court is bound by the precedent of this circuit directing that the application of legislative immunity hinges on the nature of the act, not the motive of the actor.  See Bogan, 523 U.S. at 54."

The problem with this statement is that the motive of the actor is not at issue in a conflict situation. What is at issue is the appearance of the actor's conduct to the public. The public had reason to believe that at least two of the board's members were acting in their self-interest, due to their ownership of property in the project area, and the public had reason to believe that board members who also lobbied and wrote letters against the project were acting improperly and had a strong bias against the project.

Of course, appearance cannot be measured. But a conflict is not measured by its appearance. It is measured by the facts of the conflict situation, including whether, and to what extent, conflicted officials withdrew from participation. However, the court determined that these facts were completely irrelevant to the case, because they went to the board members' motives. This shows a serious lack of understanding of conflict situations and of government ethics in general.

It is true that the tribe's brief does not make a very good argument for its case. For example, it does not point out that motive is not an issue in a conflict situation. Nor does it say anything about government ethics. It only cites cases that dealt with instances of bad faith. Once again, as in the Baltimore cases, a failure to show why irresponsibly dealing with a conflict should not be protected by legislative immunity has led to a decision that will be make it harder to successfully make such an argument in the future.

Acting As If One Has Discretion, When One Does Not
The decision and brief also contain an interesting debate about when a decision is legislative and when it is administrative or ministerial. The issue involves whether the board was required to act in a certain way by a treaty, providing it with no discretion. Discretion is an important element of legislative activity. Therefore, acting without discretion would arguably mean that those making the decision would not be engaing in legislative activity.

Take an example from the ethics context. Let's say that a city charter requires a council to appoint to an ethics commission the nominees of a board of local civic organizations. The council is involved solely because a board of civic organizations can be given the power to select, but not the power to appoint. All the council is permitted to do is rubber stamp the board's nominee. But the council ignores the charter and decides to reject a nominee, for whatever reason (remember, motive is not relevant). Is this a legislative act, even though the council had no discretion; is it a non-legislative act because the council lacked discretion; or is it an illegal act, because it violated the charter (as the watershed district violated the treaty)? The answer determines whether the nominee or the board could sue the council members individually. Food for thought.

I raise this issue because of what happened recently in Atlanta.

Thanks go the Turtle Talk blog for posting the court decision and briefs yesterday.

Robert Wechsler
Director of Research-Retired, City Ethics

203-859-1959