To Recuse or Not to Recuse
What does it mean to recuse oneself from acting on a governmental decision or matter, and who should do so?
City and state law establishes rules and procedures to ensure that public officials are free from bias caused by their own financial or personal interests, and that they act in an impartial manner. A member of a governmental decision-making body, such as a commissioner, may need to disqualify, or recuse himself or herself from attempting to influence the decision (for example, discussing the matter with other City officials); and from participating in the discussion and vote on an agenda item where the member, or his or her family, may be impacted as a result of the action taken by the body, or where it would otherwise not be in the public interest for the official to participate in the decision.
In most cases, a commission member who recuses himself or herself must announce on the record that the member is recusing himself or herself, and not be present during the discussion and vote on the item. When recusal is required by virtue of state law, a City Councilmember must also state for the record, in a public meeting, why the member is recusing himself or herself from acting on a matter. State law provides the detail of the necessary specific statement to be made, which is dependent on the financial interest involved. State law requires the same for officials known as "87200" filers – that is, members of the Planning Commission and money managers, such as members of pension boards.
Also, if the matter concerns a contract and the official, or his or her family, has a direct or indirect financial interest in the contract, and the entire body is not disqualified from acting, the official also must make a particular public statement.
City employees are subject to the same conflict laws, but because the employees are not members of a public body, employees are not required to make a public statement of their recusal. However, an employee’s recusal should be in the form of a written memo to his/her supervisor and would constitute a public record.
How does one know when to recuse oneself? Properly completing your Statement of Economic Interests (SEI), which is filed annually and semi-annually, can be a useful tool in identifying potential conflicts. The kinds of interests that must be disclosed are detailed in the official’s assigned disclosure category under the Conflict of Interest Code that governs the official’s agency. The SEI consists of the CA Form 700 and, for some officials, the CEC Form 10 or 11. However, even if an interest is not reportable on an SEI, recusal may be required. In general, the official may have a disqualifying conflict of interest any time any City business before the official involves:
- a business in which the official or a member of the official’s family has an investment;
- an entity of which the official is an officer or director or holds some position of management;
- real property in which the official or a member of the official’s family has an interest;
- a source of income to the official or a member of the official’s immediate family;
- a source of gifts to the official; or
- any person or entity with which the official has a relationship other than in his or her capacity as a City official ( e.g., a friend, person with whom the official has a business relationship, or an organization in which he or she holds some position of importance).
However, the mere presence of one of these interests does not mean recusal is required.
The decision to recuse oneself is very fact specific and requires an analysis by the official with the assistance of the City Attorney, who can advise the official about how state and City conflict laws apply under the circumstances he or she faces.
Consider for example, the following illustration. Assume that Kyle is a member of the Planning Commission. Kyle owns a software company, and his spouse owns $2,000 worth of stock in a large computer company that is building a computer center in Los Angeles, and seeks Planning Commission support for that project. May Kyle participate in the decision?
The answer depends on an analysis of the facts. What is Kyle’s interest in the stocks? What impact would approval or disapproval of the computer center have on the stocks? Is the computer company a Fortune 500 company? The law provides varying answers depending on the value of the stock, the size of the company holding the stock, the nature of the company’s role in the matter, and the potential impact on the company.
Once the facts and the conflicts laws have been analyzed, when a commissioner recuses him or herself, the commissioner must complete CEC Form 51, as required by Section 707 of the City Charter. The original of that form, and a copy of the agenda of the meeting at which the recusal took place must be filed with the City Ethics Commission. Copies of these documents must also be filed with the offices of the Mayor and the City Attorney.
Under its Charter mandate, the City Ethics Commission is required to track and evaluate all commissioner recusals to provide guidance to commissioners about whether any continuing pattern of recusals might point to a significant and ongoing conflict for a commissioner. If so, the Ethics Commission is authorized by the Charter to recommend divestment from a particular interest, if the commissioner is no longer able to effectively carry out his or her responsibilities.
All City board and commission members, and City employees subject to the same conflict of interest laws, should remember to seek advice from the City Attorney whenever they may have, or appear to have, a conflict of interest with their City responsibilities. Information and resources are available from the Office of the City Attorney at (213) 978-7100, and on the CEC website http://ethics.lacity.org, or by calling (213) 978-1960.
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