Three Recusal Case Studies
Here are three different recusal case studies:<br>
<br>
<span>Public Recusal Is Not Enough</span><br>
One of the most important things to emphasize about recusal is that
recusal at a meeting is not enough. Recusal is supposed
to mean withdrawal from involvement in any aspect of a matter where an
official has a conflict of interest. Recusal at a meeting is only
withdrawal from the public part of a matter. If the official continues
to be involved with the matter behind the scenes, it is, in some ways,
worse than ignoring a conflict of interest in public, because then no
one knows the official is acting despite a conflict. In fact, it gives
the impression that the official is dealing responsibly with his or her
conflict, when in fact this is not the case.<br>
<br>
According to <a href="http://www.dailybulletin.com/ci_12513201" target="”_blank”">an
article in Inland Valley (CA) </a><span><a href="http://www.dailybulletin.com/ci_12513201" target="”_blank”">Daily Bulletin</a>,</span>
this apparently was the situation with a school board member, who
worked behind the scenes to get contracts for his employer. He ended up
getting caught and pleading guilty to a felony conflict-of-interest
charge, with thirty days in prison. The school board member blamed
school district administrators and attorneys for poor advice.<br>
<br>
And this may very well have been the case. Too much emphasis is placed on
recusal from voting (and in fact this is often the rule), so that many
people don't understand that recusal involves withdrawal from all
aspects and stages of a matter.<br>
<br>
<span>Was There Recusal in the
Seventeenth Century?</span><br>
Here's an interesting conflict in Marblehead (MA), a town I lived in
many years ago. Back in the late seventeenth century, Marblehead was one of the largest
cities in the colonies, and it hasn't grown much (about 23,000 pop.).
Keeping its historic feel is important both for tourism and for town
identity.<br>
<br>
According to<a href="http://www.thedailyitemoflynn.com/articles/2009/06/10/news/news11.txt&q…; target="”_blank”">
an article in yesterday's Lynn </a><span><a href="http://www.thedailyitemoflynn.com/articles/2009/06/10/news/news11.txt&q…; target="”_blank”">Daily
Item</a>,</span> the chair of the <span class="content">Marblehead Old
and Historic Districts Commission has a business, <a href="http://www.oldtownrepair.com/">Old Town Repair</a>, that
specializes in restoring historical windows and doors. The commission
rejected a resident's request to put in more energy-efficient
double-pane windows that look just like the old single-pane windows,
and the resident is accusing the chair of having a conflict, since it
is his business to restore single-pane windows, which might go the way
of the dinosaur if new, more efficient windows were permitted.<br>
<br>
Does the chair have a conflict? He's certainly conflicted, even though he would not necessarily profit from the rejection of any single request for approval of a double-pane window. I would advise him to recuse himself from window and door requests like this, but an ethics commission would have a difficult time deciding whether to find against him for failure to recuse.<br>
<br>
<span>The Feeble Defenses of Those
Who Fail to Recuse Themselves</span><br>
Genesee County (MI, home of Flint) has had two recent situations
where officials with apparent conflicts voted anyway, according to <a href="http://www.mlive.com/swartzcreek/index.ssf/2009/06/residents_have_mixed…; target="”_blank”">an
article in the Swartz Creek </a><span><a href="http://www.mlive.com/swartzcreek/index.ssf/2009/06/residents_have_mixed…; target="”_blank”">News</a>.</span>
A township trustee voted to reappoint her husband as building
inspector, and a school board member voted to give his sister, a school
superintendent, a raise.<br>
<br>
The school board member defended himself by saying </span>that "he
votes as a board member, not as a brother." That's helpful.<br>
<br>
The township trustee had a whole host of defenses. She said she checked
with the Michigan Townships Association to make sure she could vote on
building department issues (does a township association have any
authority over or expertise in government ethics?). She says that voters knew who her husband was
when she ran for office (he had been building inspector, but had been
removed from office). She said that their money is separate (does this
mean they don't live together or have children?). And she said that her
vote wasn't a tie-breaker: "Even if I wouldn't have voted, he still
would have gotten the job."<br>
<br>
Would the Michigan Townships Association have told her that none of
these arguments is relevant to whether she should have recused herself?
Voters didn't know the husband would be reappointed, and didn't vote to
let the wife vote for him in any event (and do many voters really know
who the building inspector is?). The closeness of the vote is
irrelevant to a conflict and, in any event, how can one be sure when
discussion begins on a matter, and the choice of recusal must be made,
how close the vote will be?<br>
<br>
How a couple handles their money is
also irrelevant to whether there is a conflict -- he's still her
husband. No ethics code distinguishes among couples with different
accounting regimes, or even between those married or separated.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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