One of the many responsibilities of a municipal attorney is advising local boards and commissions. While boards and commissions can vary widely in terms of their authority and impact, some – especially in the land-use realm – can make very consequential and highly visible decisions. It becomes very important, then, that the members of these boards and commissions understand their ethical responsibilities and that municipal attorneys are able to identify and address ethical issues as they come up.

Many public and government agencies have developed formal, structured policies with guidelines for ethical conduct for public officials and members of public bodies. For example, Oklahoma Statutes Title 74, Chapter 62, Appendix 1, Rule 4 governs conflicts of interest for state agencies in Oklahoma. The Oklahoma Ethics Commission, in turn, provides extensive guidance with its Officers and Employees Guide.[1] The commission reminds us, however, that these statutory ethics rules only apply to state officers and employees, and there may be differing and sometimes more restrictive requirements for local government entities.

For example, the city of Tulsa has an ethics code that sets out when a city official is prohibited from participating in a matter, outlines a process of disclosing any known conflicts of interest and provides for oversight by an ethics advisory committee.[2] There are also rules applicable to specific public bodies. For example, the Tulsa Zoning Code has a specific conflict of interest provision for the Preservation Commission,[3] and the Board of Adjustment’s “General Policies and Rules of Procedure” document includes a code of ethics.[4] Ultimately, a municipal attorney or outside counsel hired to support a public body must be aware of which ethical rules apply to the particular public body they are advising.

CASE LAW

Though the exact rules in place for state agencies may differ from the rules applicable to a particular municipality or public body, there are still interesting cautionary tales stemming from agency action in Oklahoma. In Westinghouse Electric Corp. v. Grand River Dam Authority, though the court found that the plaintiff’s case against the Grand River Dam Authority was technically moot, it chastised the GRDA officials for accepting extravagant vacations and gifts disguised as “advertising” and an opportunity for them to tour and assess the vendor’s facilities.[5] Here, the court emphasized that it “protest[ed] the use of such functions to extend benefits and gratuities to state employees and their families” and gave the following admonishment:

Government agencies are uniquely endowed with the power to implement the public will, and as such, are subject to the highest levels of scrutiny by the people whom they serve. Government officials and employees must exercise great care to avoid even the appearance of impropriety in their duties; for they, like Caesar’s wife, must be above reproach.[6]

In Woodward v. City of Anadarko, several council members and the mayor were subject to scrutiny for creating a public trust for electric utility service, the Anadarko Public Works Authority, and serving as trustees for the trust in addition to their roles with the city. The court found that there was no conflict because the city was a beneficiary governmental entity, and the duties involved in each role were not in conflict or for opposing interests.[7]

Cases from other jurisdictions can also provide insight on how courts might draw the line regarding potential conflicts of interest. For example, in 2015, the New Jersey Supreme Court held that when a member of a public body holds, or will soon hold, “a position of substantive leadership” in an organization, and that organization has an interest in a zoning application, then the member has a conflict of interest and should not vote on the matter.[8] In this case, two public officials who had voted on a particular zoning application were both members of the same church. The church, in turn, was the owner of property directly adjacent to the site at the center of the zoning application. While the church itself was not the applicant – nor was it an objector – the court found that the church’s status as the neighboring property owner meant that the church “clearly” had an interest in the zoning application.[9]

The question, then, was whether the church’s interest in the application could be imputed to all its members, including the two public officials. The court found that a person’s membership in an organization does not necessarily mean that the person is actively involved with or aware of the organization’s positions in a legal dispute.[10] However, given allegations that the two public officials in this case had either recently held, or were about to hold, significant leadership positions at the church when the vote was taken, the court remanded for additional discovery to determine whether these leadership roles gave rise to a disqualifying conflict.[11] Notably, the court urged that its ruling “should not discourage public officials from working for religious institutions, community groups or other organizations,” but instead, that recusal is a “simple solution” for the “rare circumstance in which public responsibilities and volunteer commitments conflict in a land use dispute.”[12]

Another very common situation is when a member of a public body is friends with an applicant. Experts on ethics and land use suggest that while members of the public may perceive a conflict in such cases, a determination should depend on how close the relationship really is.[13] Especially in smaller cities and towns, it might be impossible to have a quorum if merely knowing someone was enough to warrant recusal.

BEYOND CONFLICTS OF INTEREST

Beyond conflicts of interest, municipal attorneys must also be aware of attempts to circumvent the Open Meeting Act – especially in ways that members of a public body may not realize contravene the act. One such way would be for a member to meet one-on-one with other members to gain a consensus on an upcoming agenda item prior to a meeting. A 1981 Oklahoma attorney general opinion makes clear that decision-making by public bodies in nonpublic meetings is “the very evil against which the Open Meeting Act is directed.”[14] Public bodies must make their decisions in public, and that does not occur if members have promised to vote one way or the other ahead of time based on private discussions among them – even when there is no quorum present in those private discussions.

Ex parte communication can also be a problem, especially for quasi-judicial bodies, such as boards of adjustment. The Oklahoma Supreme Court has made clear that the “constitutional guaranty of due process of law” applies to quasi-judicial proceedings and that due process requires a “full, fair and adequate” hearing.[15] Accordingly, a board of adjustment must make decisions “based upon the facts presented to the board.”[16] For this reason, ex parte communications with neighbors or other interested parties outside of the hearing should be kept to a minimum; in other words, “[e]vidence needs to be gathered at the hearing, not through the grapevine.”[17]

What about members who have made up their minds ahead of time but have not gone so far as to promise to vote a certain way? Case law suggests familiarity with the facts of a matter, “even to the point of having reached a tentative conclusion prior to the hearing,” is not necessarily a problem.[18] What is important is that the member “maintained an open mind and continued to listen to all the evidence presented before making the final decision.”[19]

Sometimes, a member of a public body might make statements demonstrating that they have completely prejudged an application and are no longer able to have an open mind on the issue. In that case, the member should be disqualified from participating in the decision-making process. For example, in a 1957 Rhode Island case, a neighbor told a zoning board member that he and his other neighbors planned to object to a proposed zoning ordinance change.[20] “What difference does it make?” replied the zoning board member, “We are going to shove it down your throats anyway.”[21] The neighbor insisted that the zoning board member would object to it, too, if he lived in the area, and the zoning board member replied, “I don’t live there and I don’t care.”[22] The court found that these statements “destroy[ed] public confidence” in the board member’s impartiality and ordered the board to rehear the application de novo without this member involved.[23] The court emphasized the importance that these land-use decision-makers, holding substantial quasi-judicial power, exercise that power “with strict impartiality.”[24]

BEST PRACTICES FOR TRAINING LIAISONS AND NEW BOARD/COMMISSION MEMBERS

Understanding potential conflicts of interest can be tricky for new board/commission members, especially when they are new to that public role, and “[e]ven people of honest character can deceive themselves about what exactly the public interest requires, especially when personal gain hangs in the balance.”[25]

Accordingly, training for new members is imperative, as is updated training for longer-term members. In-person training has many benefits, but municipalities should also consider having written materials for members to use as a reference later. One strong example of a training handbook for board/commission members comes from the city of Raleigh, North Carolina.[26] This handbook discusses everything from the purpose and composition of the various boards and commissions to the state laws regarding open meetings and public records.

Any training should provide examples of the type of conflicts likely to occur for the specific public body and what relationships potentially need to be disclosed. Detailed guidance on the municipality’s definitions of financial interest, personal interest, etc., is helpful. This guidance should clarify the duty to disclose potential conflicts and detail the procedure for such disclosure. The potential consequences for not disclosing a conflict should also be outlined in detail and emphasized.

One idea to encourage compliance with conflict of interest rules is to circulate a form ahead of each meeting where the member has to review the agenda and either check “none” or disclose the conflict of interest. Another best practice is to have a standing item at the top of each agenda, prompting the chair to inquire about conflicts of interest before discussion has started on any action items.

Transparency is often touted as a sanitizing element for government function, but that is only the first step in addressing conflicts of interest.[27] Once a member of a public body discloses a conflict of interest as to an agenda item, it may be wise to recommend that they physically leave the room when that item is being discussed. There can be pushback here, especially when a member is, in fact, the applicant or the applicant’s representative and would like to assist in presenting the relevant information to the public body (Always a risk when you have talented professionals on your boards and commissions!).

However, a member’s participation in the discussion – even if they abstain from voting – may lead to undue pressure on the remaining members to vote in favor of the proposal. It is better for a recusing member to choose someone else to make the presentation. In fact, it might be worth adding language to the public body’s rules and regulations making it clear that recusing members must not only abstain from voting but must also refrain from participating in the discussion at all.

Conflicts of interest can present significant pitfalls for governmental agencies and municipal attorneys. Public officials may not assume their role within these agencies with the experience or knowledge necessary to navigate such pitfalls. However, with effective training and increased awareness of potential pitfalls, public officials can better navigate ethical quandaries – with municipal attorneys officiating from the sidelines.

CONCLUSION

A key part of a municipal attorney’s job is often to advise public boards and commissions, which, in turn, cover a wide range of subject matter. However, regardless of the topic at hand – be it a public art project or a historic preservation permit –municipal attorneys must be able to answer questions and guide these public bodies on conflicts of interest, ex parte communications and other ethical issues that may arise. Handling such issues wisely protects the public’s interest and bolsters the public’s confidence in their local government.

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ABOUT THE AUTHORS

Erica Grayson is an assistant city attorney for the city of Tulsa, where she has focused on contracts, real property and land use planning matters. She received her J.D. and master’s degree in regional and city planning from OU, as well as a B.A. in English and a master’s degree in international studies from OSU.

 

 

 

 

Caroline Guerra Wolf is an assistant city attorney for the city of Tulsa and a former assistant professor of legal writing at the TU College of Law. Before joining the TU College of Law faculty, she worked for Conner & Winters LLP and clerked for Judge John E. Dowdell of the U.S. District Court for the Northern District of Oklahoma. She is a graduate of the University of North Carolina at Chapel Hill and the TU College of Law.

 

 

 

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ENDNOTES

[1] This guide, along with others prepared by the Oklahoma Ethics Commission, can be found at https://www.ok.gov/ethics/Resources/Guides/index.html.

[2] “Tulsa Revised Ordinances,” Title 12, Ch. 6., https://library.municode.com/ok/tulsa/codes/code_of_ordinances?nodeId=CD_ORD_TIT12INPO_CH6ETCO.

[3] “Tulsa Revised Ordinances,” Title 42, §75.020-K.

[4] “General Policies and Rules of Procedure – Board of Adjustment of the City of Tulsa,” https://tulsaplanning.org/boards-commissions/city-of-tulsa-board-of-adjustment/city-boa-rules-procedures/ (last visited July 9, 2024).

[5] Westinghouse Elec. Corp. v. Grand River Dam Auth., 1986 OK 20, ¶¶15-16, 720 P.2d 713, 716–18.

[6] Id. at 717-18.

[7] Woodward v. City of Anadarko, 1960 OK 92, ¶¶29-30, 351 P.2d 292, 298.

[8] Grabowsky v. Twp. of Montclair, 115 A.3d 815, 829-30 (N.J. 2015).

[9] Id. at 829.

[10] Id.

[11] Id. at 829-30.

[12] Id. at 830.

[13] Patricia Salkin, Thomas Brown and Aisha Scholes, “Relationships and Ethics in the Land Use Game,” Zoning and Planning Law Report, May 2019 at 1, 4.

[14] 1981 OK AG 69, ¶18.

[15] Wolfenbarger v. Hennessee, 1974 OK 38, ¶¶12, 15, 520 P.2d 809, 811-12, quoted in Bowen v. State ex rel. Okla. Real Estate Appraiser Bd., 2011 OK 86, ¶16, 270 P.3d 133, 138.

[16] Mustang Run Wind Project, LLC v. Osage Cnty. Bd. of Adjustment, 2016 OK 113, ¶30, 387 P.3d 333, 345.

[17] David Owens, “Is the Mayor Doing Her Job or Improperly Receiving Evidence?” Coates’ Canons NC Local Government Law: Land Use & Code Enforcement (last revised July 15, 2022), https://canons.sog.unc.edu/2011/08/is-the-mayor-doing-her-job-or-improperly-receiving-evidence/.

[18] Wagner v. Jackson Cnty. Bd. of Zoning Adjustment, 857 S.W.2d 285, 289 (Mo. Ct. App. 1993).

[19] McPherson Landfill, Inc. v. Bd. of Cnty. Comm’rs of Shawnee Cnty., 49 P.3d 522, 531-32 (Kan. 2002).

[20] Barbara Realty Co. v. Zoning Bd. of Review of City of Cranston, 128 A.2d 342, 154 (R.I. 1957).

[21] Id.

[22] Id. at 155.

[23] Id. at 156.

[24] Id.

[25] Archon Fung & Dennis Thompson, “Conflict of Interest in Government: Avoiding Ethical and Conceptual Mistakes,” Governance (forthcoming) (manuscript at 3), https://doi.org/10.1111/gove.12870.

[26] City of Raleigh, “Boards and Commissions Training Handbook,” https://bit.ly/4fyNGB6.

[27] Fung & Thompson, supra, at 25.