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, <a href="http://turtletalk.files.wordpress.com/2012/05/dct-order-dismissing-indi…; target="”_blank”"><i>Kickapoo
Tribe</i> v. <i>Black</i></a>.<br>
<br>
The tribe made the argument in <a href="http://turtletalk.files.wordpress.com/2012/05/kickapoo-opposition.pdf&q…; target="”_blank”">its
brief</a> 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.<br>
<br>
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."<br>
<br>
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.<br>
<br>
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.<br>
<br>
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 <a href="http://www.cityethics.org/search/node/baltimore%20immunity" target="”_blank”">the
Baltimore cases</a>, 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.<br>
<br>
<b>Acting As If One Has Discretion, When One Does Not</b><br>
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.<br>
<br>
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.<br>
<br>
I raise this issue because of <a href="http://www.cityethics.org/content/mayoral-and-council-interference-ec-m…; target="”_blank”">what happened recently in Atlanta</a>.<br>
<br>
Thanks go <a href="http://turtletalk.wordpress.com/2012/05/30/kansas-kickapoo-water-rights…; target="”_blank”">the
Turtle Talk blog</a> for posting the court decision and briefs
yesterday.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
203-859-1959