Cases from the Salkin Roundup I
Prof. Patricia Salkin, director of the<a href="http://www.albanylaw.edu/sub.php?navigation_id=668" target="”_blank”"> Government
Law Center</a> at Albany
Law School and author of the <a href="http://lawoftheland.wordpress.com" target="”_blank”">Law of the Land blog</a>, has
published <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1690833" target="”_blank”">another
of
her
regular roundup of what's been happening recently in the ethics of land use</a>.
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.<br>
<br>
<b>Elected Officials Are Not Expected to Be Unbiased</b><br>
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.<br>
<br>
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.<br>
<br>
As Salkin points out, the decision ignored <a href="http://www.cityethics.org/content/full-text-model-ethics-code#0.1_TOC34…; target="”_blank”">the
Rule
of Necessity</a>, which allows disclosure without withdrawal when
a conflict would mean that a board lacked a quorum and, therefore, could not meet.<br>
<br>
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.<br>
<br>
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.<br>
<br>
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 <a href="http://www.cityethics.org/content/bias-not-conflict" target="”_blank”">an earlier
blog post</a>.<br>
<br>
<b>Government Ethics Is Not About Technicalities</b><br>
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.<br>
<br>
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!<br>
<br>
<a href="http://www.cityethics.org/content/miscellany-8" target="”_blank”">Just
yesterday, I wrote</a> 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.<br>
<br>
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.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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