Wednesday, January 15, 2014

More on board member recusals...not all situations are the same

So, there was a bit of confusion about what all was going to happen regarding the CHS Hospital when the Davidson Town Board got together Tuesday for its January meeting.  The previous post from aShortChronicle strongly encouraged the Board to allow Commissioner Jenest to recuse himself from the rezoning vote. had previously reported that there would be a "public hearing and a vote" at Tuesday's meeting on a rezoning request for the property to allow a sign that does not meet the town's sign ordinance.  However, the vote on the rezoning is actually not going to happen until February - making our post here a little early.

There was in fact a vote on Tuesday's agenda for the annexation of the property into the town.  The previous post written here was based solely on the rezoning not the annexation. When DNN wrote it's story today on the Tuesday meeting, their story originally included a reference to the post from aShortChronicle as if it pertained to the annexation.  It did not.  DNN graciously made an update to their story after that was pointed out.

Confused yet?  And why does this matter?

North Carolina law on recusals is unnecessarily confusing.  Elected Commissioners can not just recuse themselves from voting on items if there is the mere perception of impropriety.   There is a concept called the "duty to vote" which pretty much requires them to vote in any situation.  The statute says.  "No member shall be excused from voting except upon matters involving the consideration of his own financial interest or official conduct." 

The question is what is "financial interest"?

In response to the first post on this subject from this site, Commissioner Rodney Graham responded to the piece on Facebook.  Here is his comment and our response.

Commissioner Graham - "3 or 4 years ago the Town Board voted to lower the property tax rate. Since all of them were property owners in the Town of Davidson and would be directly and favorably impacted by said reduction, should they all have recused themselves? Obviously, the answer is "no" but it illustrates a challenging question: just what is a direct benefit? Many people understandably believe that if any elected official has an interest, relationship or affiliation in an issue, no matter how direct or significant, they should be excused from voting on it. But, the LAW in North Carolina heavily leans toward the side of voting, so the law prescribes limited exceptions to voting, and as you might imagine those are subject to interpretation. None of this is to suggest how I might vote on any request to be excused from voting, but I wanted to make it clear that there are statutory guidelines as to when being excused from voting is permissible. Thanks for the article; there is some good information in it."

Our Response - "You are correct, there is a "duty to vote" concept involved here. However, the tax rate example is actually a good one. In fact it's just that example sited by the UNC-SOG as a situation at the extreme end of a continuum where commissioners would NOT be recused precisely because they would all receive the same relative benefit from the vote. The decision tomorrow night (regarding the rezoning vote that did not occur) for Davidson's Board is not that type of situation. Any benefit from the decision tomorrow night accrues to only one Board member - putting it much further along the continuum where a commissioner should be recused. Add to that the fact that the Commissioner with the most direct knowledge of any financial benefit is also the one would be offering to recuse himself, and that seems to be a reasonable situation to approve the recusal. It's definitely a judgment call."

So, here's the difference between the pending rezoning vote and this Tuesday's annexation vote.

The annexation of property is a standard action taken by Davidson when property ties into local utilities and receives the benefit of town services.  That's mentioned in the DNN story on Tuesday's meeting.  Annexation would likely have happened regardless of who was on the Board and whatever firm was doing the work on the CHS property.  Plus no Commissioner will receive any benefit from that, or if they do they will all receive the same benefit.  The annexation  is much more like the tax rate example that Commissioner Graham used.  The Board was right to allow Commissioner Jenest to vote on it.

The rezoning of the property is different because it is not a standard action, and it's being sought precisely to seek a variance from a town ordinance. 

Commissioner Jenest is a name partner in his firm.  His client is seeking an exception of a town ordinance.  Any benefit certainly accrues only to one person, not the whole Board.  Voting to support an exception that benefits a client who is paying you to do work on a project and that overall project benefits from that exception would certainly appear to be at best a very gray area.  There may not be a clause in the contract between ColeJenest & Stone and CHS that says "we will not pay you unless you get our sign variance approved", but as Commissioner Graham said these situations are "subject to interpretation."

When the time comes to actually vote on this rezoning, it will be interesting to see how the Board interprets that situation.  Our neighbors in Cornelius recently had a similar situation regarding a rezoning for the new Harris Teeter in Antiquity.  Then-Commissioner Chuck Travis, an architect, recused himself for something much less direct, and he did not vote.

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