You are here
Withdrawal from Participation
Tuesday, October 19th, 2010
Robert Wechsler
Recusal is one of the least well understood aspects of government
ethics. Most people seem to think it is limited to abstaining on a vote
where you have a conflict of interest, and many ethics codes define it
that way, if they require recusal at all.
But abstention is not sufficient for many reasons. One of them is at the center of a court case in New York State, Eastern Oaks Development v Town of Clinton.
A developer contracted with a member of the town board for the construction of a road that was to be given to the town, and the developer and contractor entered into a dispute concerning payment of a subcontractor. When the matter came before the town board, the contractor recused himself from voting. But after the town rejected the road, the developer sued the town, arguing that the contractor had recused himself from the vote only “in order to conceal his conflict of interest and efforts to undermine the Subdivision project . . . [by] influencing members of the Town Board not to approve the road dedication.”
Who knows if this is true or not, but if the town board member did participate in any way in this matter, it will appear that he was doing it for personal reasons involving his dispute with the developer.
Government officials are not usually so directly involved in a matter, but even an indirect involvement requires not only that the official recuse himself from voting, but that he clearly remove himself from all participation in the matter.
"Recusal is really not the best word for what is required, because it is a technical, judicial term. In a court case, it is assumed that a judge with a conflict will not only not decide a case, but that he will not be involved in hearing it either. But most non-lawyers don't know this. "Withdrawal from participation" is a better term, because everyone understands that it covers the entire matter, not just the vote.
Thanks to Patty Salkin's Law of the Land blog for pointing out this case.
Robert Wechsler
Director of Research-Retired, City Ethics
---
But abstention is not sufficient for many reasons. One of them is at the center of a court case in New York State, Eastern Oaks Development v Town of Clinton.
A developer contracted with a member of the town board for the construction of a road that was to be given to the town, and the developer and contractor entered into a dispute concerning payment of a subcontractor. When the matter came before the town board, the contractor recused himself from voting. But after the town rejected the road, the developer sued the town, arguing that the contractor had recused himself from the vote only “in order to conceal his conflict of interest and efforts to undermine the Subdivision project . . . [by] influencing members of the Town Board not to approve the road dedication.”
Who knows if this is true or not, but if the town board member did participate in any way in this matter, it will appear that he was doing it for personal reasons involving his dispute with the developer.
Government officials are not usually so directly involved in a matter, but even an indirect involvement requires not only that the official recuse himself from voting, but that he clearly remove himself from all participation in the matter.
"Recusal is really not the best word for what is required, because it is a technical, judicial term. In a court case, it is assumed that a judge with a conflict will not only not decide a case, but that he will not be involved in hearing it either. But most non-lawyers don't know this. "Withdrawal from participation" is a better term, because everyone understands that it covers the entire matter, not just the vote.
Thanks to Patty Salkin's Law of the Land blog for pointing out this case.
Robert Wechsler
Director of Research-Retired, City Ethics
---
Story Topics:
