Guide to Recusal and Conflicts of Interest

The following is a general guide and starting point to understanding some of the requirements of the Code of Ethics.  Persons reading this guide are urged to refer to the relevant sections of the Code of Ethics (see top menu), to seek formal or informal guidance from the Ethics Commission, or to speak with legal counsel regarding the proper application of the Code of Ethics to any specific facts.

Recusal Due to Conflicts of Interest

The Code of Ethics provides that a public official or employee must not participate, and thereafter must file a statement of conflict of interest, or "recusal form," concerning matters where he or she may have a conflict of interest in the discharge of his or her official duties. A conflict of interest may exist if an official or employee can reasonably expect that his or her official duties will involve or directly result in a financial benefit to the official, a member of his or her family, a business associate, his or her employer, or a business that the official represents. The conflict of interest need not be certain to occur, but the probability must be greater than "conceivably." 

Even when the conflict of interest does not rise to the level of a required recusal under the Code of Ethics, a public official or employee may appropriately decide to recuse from participating in a matter when participation would would likely have the appearance of being inappropriate under the circumstances.

What is Recusal?

Recusal, under the Code of Ethics, refers to a public official or employee declining to participate in a matter because of a potential conflict of interest under the Code of Ethics. Recusal means that you are not participating in discussions, deliberations or debates, making recommendations, giving advice, considering findings, or in any other way assuming responsibility for or participating in any aspect of the work or decision-making relating to the matter where there are potential conflicts of interest. It does not necessarily mean that the public official must leave the room during a meeting that is open to the public (although it is best practice and some board's local rules may require the member to do so). However, if the public body is in executive session, once the official has recused, he or she has no more right to be in the room than any other member of the general public.

The Class Exception

If a matter impacts you, your family member, your employer, or your business associate solely as a member of a large group, or of any significant and definable class of persons within a group, and all persons are impacted the same way, the “class exception” might apply to allow your participation.  An example of the "class exception's" application is a Town Council member voting on the town's annual tax rate, even though she owns a home in the town, because the tax rate will apply equally to all residential property owners.  Prior to relying on the application of the class exception, you are encouraged to contact the Ethics Commission for guidance.

The Public Forum Exception

An official who has recused from participation may be able to speak as a private citizen under the "Public Forum Exception," during public comment.  However, this does not include substantive discussions in forums not available to members of the general public, nor does it allow a public official to represent the views of others or act as an expert witness before his or her own agency.  Public officials are urged to seek guidance from the Ethics Commission prior to utilizing the Public Forum Exception.

Appearance of Impropriety

A public official with a potential conflict of interest must recuse from participation and file a recusal form as soon as he or she has reason to believe that he or she has a conflict of interest. Sometimes, a perceived conflict of interest does not rise to the level of a required recusal under the Code of Ethics, but a public official or employee may nevertheless voluntarily elect to recuse from participating in a matter under circumstances where the public official or employee’s participation would likely carry with it an appearance of impropriety or in circumstances where the official feels unable to act objectively and without undue bias.

How to Recuse:

• When recusing, a public official or employee must complete a recusal form, also known as a Statement of Conflict of Interest (download at top of page), or write or sign a memo which includes the following information:                

  • Name

  • Position & agency

  • Describe the nature of your conflict

  • Indicate that you are recusing from participation

  • Sign the memo or form under penalty of perjury

• Present the original to your presiding officer, appointing authority, director, or immediate superior

• Send a copy to the Ethics Commission.

Frequent Recusal:

If a public official has a particular private interest or relationship that causes him or her to recuse with such frequency that he or she is regularly unable to perform his or her required public duties, he or she is encouraged to consider severing the private relationship if possible.  Alternatively, the official may elect to leave office due to the recurring nature of the conflict of interest that substantially interferes with his or her duties.  A public employee who must regularly recuse from performing his duties may be deemed by his hiring authority to be unfit for continued employment in that position. Ultimately, when a public official or employee is required to frequently recuse on matters of great importance, and does so appropriately under the Code of Ethics, it becomes an issue for that official's appointing or hiring authority, or the electorate, to address.

Delegation:

If a public official or employee recuses on an issue, there may be a need to have another person handle the matter. The Code of Ethics prohibits the recusing person from exercising any and all authority relating to the matter, including assigning the matter to a subordinate. It is the obligation of the recusing person’s supervisor, presiding officer, or appointing authority to assign the responsibilities to someone who does not have a conflict of interest.  

Quorum Issues Caused by Multiple Recusals:

Occasionally, several members of a public board may recuse on the same matter because of potential conflicts of interest. This may cause the board to lack a sufficient quorum to hold a meeting or vote. In limited circumstances, the Ethics Commission may grant a hardship exception based on the "Rule of Necessity," thereby allowing one or more of the recusing members to vote notwithstanding a conflict of interest. This is only available when the lack of quorum is due to conflicts of interest, and not due to vacancies or other reasons that members are unavailable.  The Rule of Necessity's application requires prior approval from the Ethics Commission through the issuance of an advisory opinion.