Issued earlier this year, Titan Concrete, Inc. v. Town of Kent, 63 Misc.3d 564, 94 N.Y.S.3d 817 (Sup. Ct. Putnam Cty. 2019), brought attention to the ethical obligation of recusal that municipal board members must address when they have a potential or actual conflict of interests with a matter before them. While many board members believe it is sufficient to solely refrain from voting, the Court, as well as the Attorney General, has stated that where an actual or potential conflict exists abstention from voting does not address all ethical concerns and board members should recuse themselves from all participation unless they obtain an opinion from their local ethics board to the contrary. As seen in Titan Concrete, Inc., board members risk jeopardizing the validity of actions taken by the board when they fail to recuse themselves from all participation and attendance pertaining to the matter.
In Titan Concrete, Inc., the Town of Kent Supervisor was a homeowner in a homeowners association (“HOA’) that was suing the Town of Kent ZBA. At the outset, the Supervisor stated she was recusing herself from voting on a related matter before the Town Board involving the HOA. However, the Supervisor continued to attend and participate in discussions and converse with the public regarding the matter, and voted on motions facilitating the discussion and advancement of a local law to amend the zoning code to prohibit concrete production in the zoning district neighboring the HOA. As a member of the HOA, the Supervisor had an interest in the passage of the local law, which would overturn the decision made by the ZBA to permit concrete production at the neighboring site. The Court found that the local law amending the zoning code to prohibit concrete production within the zoning district neighboring the HOA was void because the Supervisor had an admitted conflict of interest, and stated that she was recusing herself from participating in the matter, but then continued to participate in the public hearing on the local law by engaging in discussions and voting on motions. Id. at 572. The Court cited several principles regarding the ethical obligations of board members and their consideration of not only the effect of their actions regarding the matter, but also the appearance of acting ethically and the public’s interpretation of their actions. “[I]t is critical that the public be assured that their officials are free to exercise their best judgment without any hint of self-interest or partiality, especially if a matter under consideration is particularly controversial.” Id. at 573. (citations omitted). “Thus, where a public official is uncertain about whether they should undertake a particular action due to an actual or potential conflict, he must recuse himself entirely from the matter in question unless he procures an advisory opinion from a local ethics board that concludes otherwise.” Id. (citations omitted). In this case, because the Supervisor had a conflict of interest and continued to preside over and participate in discussions regarding the local law and other issues, she tainted the enactment of the local law, even though she had abstained from voting on the local law itself.
The Attorney General has similarly stated that a “board member’s participation in deliberations has the potential to influence other board members who will exercise a vote with respect to the matter in question. Further, “…a board member with a conflict of interests should not sit with his or her fellow board members during the deliberations and action regarding the matter. The mere presence of the board member holds the potential of influencing fellow board members and additionally, having declared a conflict of interests, there would reasonably be an appearance of impropriety in the eyes of the public should the member sit on the board.” Richard S. Mayberry, Esq.,1995 NY Op. Atty. Gen. (Inf.) 2 (N.Y.A.G.), 1995 WL 112012 (1995). Id. at 573-574.
This serves as a reminder that municipal board members must refrain from both voting on and participating in discussions of matters where they have an actual or potential conflict of interests.
We trust you will find the above information useful. Should you have any questions, please contact Eric Gordon, Esq.