It seems to me as a non-lawyer that two very important issues are misunderstood by citizens but also by our elected and appointed officials in government. The open meeting laws and requirements for disclosure prior to discussing business between several members of a committee or council even though the meeting was spontaneous and not about the business before the agency, a disclosure of such a meeting is required by law. This is especially true if the governing body has five or fewer members. The posting and reposting of agendas is a tool used by city officials to keep the public in the dark about public business. The State statue defines loosely and gives local governments and their agencies a lot of leeway in making their own rules, but when government officials—elected, appointed, or employed abuse the State statue then there are remedies in law to fix the situation. I will talk about this issue in my next article.
My only experience in “governance in government” came when I was appointed to the Idaho Health Insurance Exchange Board. The “Exchange” was described legally as a “corporation in politic”. Our legal counsel Mr. Mike Stoddard advised us regarding our by-laws, corporate declarations, employee manuals etc. I was appointed head of our operations committee and I worked closely with Mike and several of his colleagues at Hawley Troxel including Tom Mortel. We also were advised almost daily by the Idaho Attorney General with specific emphasis on open meeting laws and conflicts of interest. I would invite any attorneys with experience in this area to post behind this article if what I as a layperson have presented is wrong materially or by implication.
In my mind, there are three separate and distinct processes that are required when explaining one’s conflict of interest. The first is a disclosure which is a written statement done before a legislative session or a council year of business. The person makes the disclosure in writing that will be archived and explains what potential conflicts may be relevant not knowing what issues may come up before them. Just being a citizen living in a community is not a conflict. Living on a golf course does not require disclosure if one is on the P&Z committee or city council—UNLESS one is acting as an agent—paid or unpaid for any business, another government agency, or any entity outside their role as a citizen. Being a citizen in a community or a neighbor is not a conflict unless one is talking about a fence between a citizen and the involved public servant.
The second requirement is the “declaration’ that must be made prior to hearing about a piece of legislation or a matter before the government council, board, or agency. This is done verbally and during a session or a calendar year and may have to be done several times when separate issues come before the body.
The third is a recusal and I see this being used only on rare occasions. It must be said the requirement to recuse oneself from business before a body is not obviated by a disclosure or a declaration. Let me be clear, disclosure or declaration does not make recusal unnecessary.
I see three groups of people who abuse this process. One group are citizen-servants who are just ignorant of the ethics behind the law. The second group—many times attorneys or lobbyists who try to wiggle their way around the law. The third group are more seasoned and try to use the law to remove themselves from a vote that they have knowledge of an outcome about and that is favorable to their position. Or they know that the real “meat on the bone” will be litigated in a court that will be the final arbiter. Think of conservatives in the US Congress who abstained from voting about overruling Pro-Choice legislation so they could go back to their purple districts and campaign for reelection. This may be an example of a “political conflict of interest” which is something I just made up.
We have a Republican member of our legislature who is an attorney, who represents a city government, who has represented an organization that lobbies for city government, who discloses and declares his conflicts and then doesn’t recuse himself—he has one time, when pertinent legislation is before him. Preposterous I say—but it may technically be legal!
Where conflicts and disclosures are also misunderstood is when meetings as described above—on purpose or by accident happen and business is/was discussed or was not discussed, the law requires at least a disclosure before voting on the matter declared and possibly recusal. If one receives a campaign contribution, plays a round of golf with two fellow city council members or Board members, receives a discount on a club membership or a ticket to The Governor’s Cup this needs at least a disclosure and a declaration. If one sits on two Boards that interact civically or legally with each other that is an obvious conflict that needs to be resolved before and participation in an action is even considered.
I again invite legal comment. For a N. E. (Non-Esquire) maybe common sense should rule. Disclose (everything you can think of), declare when business that before you can even appear as a conflict, and recuse when appropriate. The first two are never a means to circumvent the last.
