Withdrawal from Participation
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.<br>
<br>
But abstention is not sufficient for many reasons. One of them is at
the center of a court case in New York State, <a href="http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010…; target="”_blank”">Eastern
Oaks
Development v Town of Clinton.</a><br>
<br>
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.”<br>
<br>
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.<br>
<br>
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.<br>
<br>
"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.<br>
<br>
Thanks to Patty Salkin's <a href="http://lawoftheland.wordpress.com/2010/10/16/ny-appeals-court-finds-all…; target="”_blank”">Law
of
the Land blog</a> for pointing out this case.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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