The Ethics Advisor

The Details Matter: Recusing Yourself Due to Conflict of Interest

By Ruben Duran

imgresOnce, when I had put a lot of time and attention into arranging the particulars of social engagement, an old acquaintance called me a “detallista.” At the time, I think she may have meant it more as a slight than a compliment, but today – as a lawyer – I understand the value and importance of being meticulous with details, especially for clients in the area of ethics.

A common situation that can sometimes trip up elected officials is the correct way to declare a conflict and recuse one’s self from any consideration of the matter.

As a refresher, you may remember from prior Ethics Advisor columns that it is not necessarily always illegal or unethical for a public official to have a financial conflict of interest in some item that is making its way through the channels of approval at a local agency. The ethical and legal problems arise when you try to influence – in any way – the outcome of the decision on the matter.

For example, suppose you learn that a future agenda item concerns your compadres’ property down the street. The house is within 500 feet of yours, and you and they have jointly invested in a small business venture (your investment is more than $2,000). You have correctly determined that you have a disqualifying conflict of interest and you fully intend to recuse yourself from voting on the matter when it comes to a vote at the meeting.

Prior to the public meeting, is it enough that you are aware of the conflict and intend to refrain from voting? No. You must also be sure that you say and do nothing prior to the meeting that could be seen as an attempt to influence the decision regarding your compas’ property. Under case law and FPPC decisions, “the decision” or “the action” is given a very broad meaning, and encompasses much more than the actual vote on the item. It means the planning, analysis and staff work leading up to a vote or other final action, and you could get into trouble for trying to sway or affect the decision in any way. The best way to avoid even the appearance that you might have tried to influence a decision is simply to stay away from the issue altogether.

At the public meeting, the law prescribes some very specific procedures for removing yourself if you have a conflict. First, once the item is announced by the presiding officer, you must state on the record the reason for your recusal and then you must leave the room while the item is being discussed. For example, “I have a conflict of interest on this matter because it involves property within 500 feet of my residence and the property owner and I are joint investors in the ACME Business Co., Inc.”

Then, you must leave the room.

Yes, leave the room. There are only a couple of exceptions to this rule:

443138First, you may remain in the room if the item on which you are conflicted is on the body’s consent calendar. The announcement would still be the same, and the minutes would reflect an abstention from that particular item on the consent agenda. You may vote on the remaining items on the consent calendar.

The second exception applies in the very narrow and limited circumstance where the item on which you are conflicted relates directly to your “personal interests.” These include:

  • Interests in real property wholly owned by you or your immediate family (in our example above, you might be allowed to rely on this exception to offer input as a member of the public if you did not also have a business investment with your compadres);
  • Interests in a business entity wholly owned by you or your immediate family; and
  • Interests in a business entity over which you (or you and your spouse or domestic partner) exercise sole direction and control.

Even though the regulation allows a public official to remain in the room when these interests are at stake, some officials balance their rights as individuals with their responsibility to maintain the public’s trust in both their leadership and the agency they serve by leaving the room after providing input related to their personal interest.

Apart from allowing us to maintain the public’s trust by compliance, strictly following these rules will keep us out of hot water with the Fair Political Practices Commission. The FPPC regularly prosecutes enforcement actions against public officials for failing to observe the rules, or even for failing to observe them completely. In other words, some public officials, even though they have gone through the trouble of identifying a potential conflict and have even attempted to put the conflict on the record and remove themselves from the decision, may still face scrutiny and potential liability if they failed to announce the conflict properly, or if they failed to leave the room at the appropriate time. Neither the Southern California Latino Policy Center nor the Ethics Advisor want you to be another headline or report on the FPPC’s website.

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Ruben Duran
ruben.duran@bbklaw.com
Follow me on Twitter @BBKRubenDuran
(213) 787-2569

Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.

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