Thursday, June 24, 2021

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Graham, NC 27253
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A primer on “recusals”

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Well, dear reader, if you even made it past the title, you must be a local government junkie.
The issue of recusals doesn’t typically come up very often at local government meetings, but recently there have been a rash of them – and most have not been handled properly.

Graham city council’s refusal to let council member participate in council decision
We’ve already written (earlier this month) about the inappropriate way Graham’s city council imposed a recusal on a member who had not sought one, denying her right to participate in the council’s deliberations on public business, for which the voters of Graham had elected her.

And without having a clearly stated, or explained, a rationale for what, precisely, was the conflict and how it was so serious as to warrant a recusal, much less having one imposed.

Having consulted lots of experts, we’re still not sure Graham’s council even had the authority to strip Jennifer Talley of her right to participate and vote during its March 9 meeting.

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What’s an actual “conflict of interest”?
But last week provided two more examples of recusals that were wrongly handled.

First, let’s have a basic explanation of what state law requires. A “conflict of interest” exists when a board member stands to have a “direct financial benefit” from an action he or she might take as a member of the elected body.

If and when Member X’s company is applying for a government contract, X may not participate. X should ask to be recused; if, for any reason X doesn’t ask, the rest of the board may impose a recusal on him/her – although the law is somewhat murky on when and how a public body may impose a recusal.

Now, this newspaper’s editorial page has often called for a “higher standard,” one that would require members of public bodies to recuse themselves when they might have “even the appearance of a conflict of interest.”

And we’ve often commended local officeholders who have taken that broader – we think, more ethical – approach.

But we acknowledge, that is not the current law in North Carolina, which only requires members to step aside when they have an actual financial benefit as a result of their vote.
And, we might add – as do almost all attorneys serving various local boards – that state law has a presumption that members should vote on all matters that come before them.

Indeed, the point is often emphasized that among elected officials, in particular, the presumption of state law is that they are to carry out all of their duties, including voting on difficult issues, including ones affecting relatives, their own family, etc. – as long as there is no financial gain or benefit from doing so.

 

County commissioners won’t let Pam Thompson recuse herself, and don’t even allow her to vote on whether she should be recused
So, for instance, when commissioner Pam Thompson wanted to recuse herself at last week’s county commissioner meeting from voting on the acceptance of a grant from a state agency on which she serves, she stands to have no direct financial benefit.

Under North Carolina law, she should vote; there is no statutory benefit she might receive.
The only “appearance” question is whether she might, somehow, have either influenced the selection of the county as a grant recipient (we don’t know whether she did) or somehow “expect” some sort of “reward” – short of remuneration – for the county having received the half-million dollar award.

But she wanted to be recused and asked to be recused.

The mistake made by the board was in its failure to allow her to vote on whether she should be recused. A colleague made a motion to allow her to be recused, but for some reason we have been unable to decipher, she was not allowed to vote on it. (We’ve never observed that practice in local government, and hope we don’t see it again.)

 

Graham’s planning board
Another goof came the next night in Graham, when planning board vice chairman Justin Moody expressed discomfort with voting on a recommendation before the planning board. Moody was chairing the meeting in the absence of chairman Dean Ward.

Moody said that he “lived within walking distance” of the acreage that was proposed for rezoning and averred that his parents also live in the same area, in fact, next to some of the 40 acres that were being proposed for the rezoning.

Moody said he felt he should be recused from discussions and from voting on the rezoning recommendation.

Neither Moody nor Eric Crissman, the senior member who began presiding when Moody wanted to step away never sought nor received a motion (from anyone – not from Moody or any other member) to allow Moody to be recused.

Recusal is not something a member may simply invoke; he or she must obtain the approval of his/her colleagues to refrain from participation.

Moody just declared it and was allowed, unilaterally, to be removed.

While no lawyer was present for the planning board meeting, we’re quite sure every one of them that we know would’ve said there was no actual conflict of interest. In fact, in Moody’s case, the conflict is even less than on local city councils, boards of aldermen, or the county board of commissioners because the planning board is merely advisory; it doesn’t actually set policy.

On its own, it has no authority that we know of, whatsoever.

Still, we appreciate Moody’s desire to avoid even an appearance that he might, somehow, be representing himself or his parents, in the consideration of the rezoning.
The rezoning, by the way, was ultimately turned down 3-2 anyway.

 

More formal, legal methodology badly needed
But any recusals need to be handled more formally in the future.

Whether members on any of the local boards are willing to allow another to be recused – even if only by the standard of wanting to avoid an appearance of a conflict, though it is not the state’s requirement – there needs to be a formal motion and a vote.

The member is, or should be, allowed to vote on the recusal.

If recused, the member is then to remain totally silent during the discussion, as Moody did.
We hope we’re not seeing a proliferation of recusals – especially on these remotely relevant issues.

But all boards and councils need to be following a more formal process.

Many times that more formal approach will need to include consulting with the public body’s attorney to determine whether there is any actual conflict. He needs to review the situation, preferably in advance, and then offer his best legal advice; that advice needs to be rendered openly, so that the public at large, as well as all members of the board can hear the legal assessment.

Neither Graham’s council earlier this month nor its planning board last week did so.
And while each individual board or council member can take the advice of their attorney – which is usually along the lines of requiring them to vote – they are not required to do so and may opt to let their colleague “off the hook,” as it were.

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