Michigan Women's Rights Statute and an Official's Personal Interests
Rarely does someone make a comment to one of my
blog posts that brings such a fresh look at a standard conflict of
interest issue as <a href="http://www.cityethics.org/node/774" target="”_blank”">the one
made recently by Catherine Mullhaupt</a>, Esq.,
Director of Member Information Services at the Michigan Townships
Association.<br>
<br>
It is important to recognize that the interest in having government
officials both make and be seen to make decisions in the public
interest rather than in their personal interests must be balanced
against other public interests. But I had never thought before that one
of those
interests could be women's rights.<br>
<br>
Ms. Mullhaupt points out in her comment a Michigan law that states,
"a married
woman is entitled to own, retain and
dispose of her own earnings and to make contracts independently of her
husband." I presume that this is law everywhere in the U.S.<br>
<br>
She goes on to say
that, "Several court cases and Attorney General Opinions indicate that
a
public official will not have a legally recognized conflict of interest
when the person who may be affected by the decision, financially or
otherwise, is the spouse or other family member of the public official.
These rulings are based on the principal of law that a spouse or other
adult family member is considered an independent person entitled to
own, retain and enjoy his or her own earnings separately. (Public Act
216 of 1981, MCL 557.21; <i>Thompson v. School District No. 1 of
Moorland Township</i>, 252 Mich. 629 (1930); <i>Rupert v. Van Buren
County</i>, 296 Mich. 240 (1941); Michigan Attorney General Opinions
316, 4869, <a href="http://www.ag.state.mi.us/opinion/datafiles/1980s/op06151.htm" target="”_blank”">6151</a>,
<a href="http://www.ag.state.mi.us/opinion/datafiles/1980s/op06206.htm" target="”_blank”">6206</a>,
<a href="http://www.ag.state.mi.us/opinion/datafiles/1990s/op06630.htm" target="”_blank”">6630</a>,
<a href="http://www.ag.state.mi.us/opinion/datafiles/1990s/op06736.htm" target="”_blank”">6736</a>)."<br>
<br>
Here is what the <span>Thompson</span>
case says, in part (emphasis mine):<ul>
In
passing upon the question presented, we should be mindful of section
11478, 3 Comp.Laws 1915, which provides:<br>
<br>
"Each and every married woman in the
State of Michigan shall be absolutely entitled to have, hold, own,
retain and enjoy any and all earnings acquired by any such married
woman as the result of her personal efforts; and to sell or otherwise
dispose of any and all such earnings, and to make contracts in relation
thereto to the same extent that any such married woman could have or do
if unmarried."<br>
<br>
Notwithstanding the provision of the
school law broadly provides that a school officer shall not "be
personally interested in any way whatever, directly or indirectly" in
the contract with the district, we think it is not applicable to the
case here presented. Under section 11478, above quoted, <span>Mr. Spoelman
clearly has no financial interest in this contract. Any wages which may
be paid Mrs. Spoelman as a teacher will be her individual property the
same as though she were an entire stranger to Mr. Spoelman. </span>The
statute
does not apply to one having only a remote interest which a school
officer might have under many and varied circumstances.</ul>
Wow! Because a woman's property is
her own, a conflict of interest provision cannot apply to a wife's interests. The logic does not stop
there. As Ms. Mullhaupt states, since the genders are equal, a conflict of interest provision
could not apply to the interests of a husband, either. And since the
property of
parents, children, and siblings -- not to mention an outside employer
or business -- is as absolutely theirs as a spouse's, a conflict of
interest provision could not apply to them either.<br>
<br>
Thus, it is a consequence of equal property rights that a government official can
have a conflict only with respect to his direct personal interests, not
to those of people or entities associated with the official. In other
words, all of an official's family members and business associates would have be treated by
ethics commissions as though they were "entire strangers" to the
officials. Talk about legal fictions!<br>
<br>
This logic represents a misunderstanding of what conflicts of interest
are. They have
nothing to do with the property of a government official's spouse,
parents, children,
sibling, or business. They have to do with the interests of officials
themselves. These interests are seen to include others' interests
because (1) the financial interests of individuals
are generally regarded to include their households, however their
assets are held and their income apportioned, and (2) the
personal interests of individuals are generally regarded to include
their immediate families, even though their assets and income are
completely separate. In short, when government officials act in the
interests of their families and businesses, they are acting, and are
seen by the public to be acting, in their personal interest rather than
the public interest.<br>
<br>
In the Michigan situation Ms. Mullhaupt commented on, an official voted
to give her husband a government position. Conflict of interest
provisions do not affect a spouse's right to apply for or take a
position (although nepotism provisions can), only the right of the
official to participate or vote
on the matter. The reason is that the official will not only be
biased,
but will appear to the public as biased, thereby undermining trust in
government officials to act in the public interest rather than in their
personal interest.<br>
<br>
Even if one objects to having household interests included in an
official's financial interest, there is still the personal interest an
individual has in his or her immediate family. The spouse's situation
with respect to an official's personal interest is no
different from a parent's or child's interests, and being a parent or adult
child has nothing to do with
gender or property rights. Therefore, the same is true of being an
official's spouse.<br>
<br>
Yes, there will be times when, if an official does not vote, a spouse
might not get the job. But no one has a property right to a government
job. And if there were such a right, it would have to be balanced
against the public's right to have its government not treated like a
family business.<br>
<br>
In addition, the online AG opinions mentioned by Ms. Mullhaupt are not
on point, except the first partially, and there the AG found there to
be a conflict. Here are the conclusions of the AG opinions (all direct quotes; I distinguish the cases in brackets):<br>
<br>
<a href="http://www.ag.state.mi.us/opinion/datafiles/1980s/op06151.htm" target="”_blank”">6151</a>:
an automobile dealership corporation in
which the wife of a legislator has a separate interest may do business
with the State provided that the legislator does not solicit the
contract, takes no part in negotiations for approval of or amendment of
the contract, and in no way represents either party in the transaction.<br>
<br>
<a href="http://www.ag.state.mi.us/opinion/datafiles/1980s/op06206.htm" target="”_blank”">6206</a>:
the member of a community mental health
board may lawfully vote upon proposals that directly or indirectly
affect the functions of the facility or program funded or directly
controlled by the board which employs the spouse of the board member in
question. [spouse is a contractor's employee, not seeking a job with government]<br>
<br>
<a href="http://www.ag.state.mi.us/opinion/datafiles/1990s/op06630.htm" target="”_blank”">6630</a>:
insurance matter, not relevant<br>
<br>
<a href="http://www.ag.state.mi.us/opinion/datafiles/1990s/op06736.htm" target="”_blank”">6736</a>:
a conflict of interest does not exist if an
individual serves as an attorney for a school district at the same time
his spouse serves as a teacher in the same school district. [attorney
is not in a decision-making position]<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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