conflict of interest/ freedom of speech

Asked May 11, 2017, 3:36 PM EDT

when one sits on a board or is an elected official and a item on the agenda is of a conflict and one recuse oneself from that one agenda item can that person then have the right to sit out but change there hat per say and become a private citizen and be asked questions or do a presentation on that particular item in which they had recused themselves? reason for this question is because it has been raised at a council meeting that if this was not allowed it would be considered a violation of freedom of speech. I have set on boards since 2004 and this type of issue has never been raised. My understanding was you recuse oneself and sat out and said nothing. please give me references of court decisions. thank you MARY EVELEIGH MASTER CITIZEN PLANNER

Charlevoix County Michigan

1 Response

As an appointed official, a person serving on a board/commission is not an individual; he/she is acting in a group which is the government, and that group does not have individual rights. In other words, a person does not have protection of some of his/her individual rights when serving on a government board. There may be differences in application of this concept to elected officials vs. appointed officials, but still, in public office, ethics is a duty that comes with authority. Ethics is not simply the letter of the law. “What you have a right to do does not equal what is right to do” –Justice Potter Stewart.

The Michigan Planning Enabling Act reads “Before casting a vote on a matter on which a member may reasonably be considered to have a conflict of interest, the member shall disclose the potential conflict of interest to the planning commission” (MCL 125.3815(9)). Furthermore, the member is disqualified from voting on the matter if provided by the bylaws or a majority vote of the remaining members of the planning commission (MCL 125.3815(9)). “Failure of a member to disclose a potential conflict of interest . . . constitutes malfeasance in office” (MCL 125.3815(9)). “Unless the legislative body, by ordinance, defines conflict of interest for the purposes of this subsection, the planning commission shall do so in its bylaws” (MCL 125.3815(9)).

The Michigan Zoning Enabling Act reads “A member shall disqualify himself or herself from a vote in which the member has a conflict of interest. Failure of a member to disqualify himself or herself from a vote in which the member has a conflict of interest constitutes malfeasance in office” (MCL 125.3601(8)).

A conflict of Interest is:

  • “...when the personal interest of a public official places him in a position where he cannot execute his public duties without affecting his private interests.” --Michigan Attorney General Opinion #5681.
  • “...any conflict of interest between personal profit and public duty must be scrupulously avoid.” --Michigan Attorney General Opinion #5774.

There is a circuit court case from northwest lower Michigan in which the judge ruled there was an appearance of impropriety when officials approved a site plan because of a land sale between the developer and a planning commission chairman and township board member. The judge instructed the township to reconsider the project.

Members of a planning commission/appeals board/staff should avoid a case:

  • concerning herself or himself.
  • concerning work on land owned by herself or himself.
  • involving a corporation….in which she or he is a part owner, or any other relationship where she or he may stand to have a financial gain or loss.
  • which is an action which results in a pecuniary benefit to herself or himself.
  • concerning her or his spouse, children, step-child, grandchildren, parents, brother, sister, grandparents, parents in-law, grandparents in-law, or members of her or his household.
  • where an employee or employer is the applicant or has a direct interest in the outcome.

When a conflict of interest exists, the member shall do all of the following immediately:

  • declare a conflict exists at the next meeting,
  • cease to participate at the meetings, or in any other manner; or to represent one's self before the meeting, staff, or others, and
  • during deliberation of the agenda item at the meeting, leave the meeting, or remove from the front table where members sit until that agenda item is concluded.

To avoid the appearance of impropriety, an individual with a conflict of interest that still wishes to have his or her views known before the board can have an agent represent himself/herself. The agent could be a spouse, other family member, attorney, business associate, etc.