THE RIGHT OF RECUSAL: Elected, appointed officials must step aside any time a question might arise; legislators don't deserve a free pass either

After being seated on Garland's Plan Commission in August 2006, I worked diligently to understand and follow the rules for recusal for public officials.

In the summer of 2006 when then-Councilmember Laura Perkins "Perky" Cox called to ask me to represent District 2 on the City of Garland's Plan Commission, my only hesitation involved our property holdings in downtown Garland.

Perky's response was simple: Any time there is the least bit of question about whether you might possibly have a personal interest in something on the Plan Commission's agenda, then you should just recuse yourself.

After our phone conversation ended, I had to look up the word "recuse" in the dictionary to be sure I understood its full meaning. To recuse means to step aside temporarily from a decision-making governmental body any time a matter is before that body in which a person who is a voting member might have or be perceived to have some kind of personal vested interest.

After I was seated on the Plan Commission in August 2006, I very quickly observed how often members of that city board recused themselves. When At-Large (Mayor-appointed) Commissioner Stan Luckie had a insurance client who had a case before the Plan Commission, he immediately without hesitation recused himself. When District 1 Commissioner (now-Chairman) Scott Roberts had an architectural client with a case before the Plan Commission, he, too, without hesitation and immediately did likewise. They were fastidious about rising from their seats and leaving the room before the discussion ensued.

I quickly figured out the pattern and recused myself any time I had the least bit of concern that there might be even perceived conflict of interest. During my 10 years on the Plan Commission I probably recused myself more than 30 times. It became so routine that I actually lost count. When it occurred, I just simply and methodically followed protocol and bowed out of the issue. I never made a big deal out of it.

Most often it was because a property matter before the commission was within the state's legal requirements for recusal of anything Kay and/or I owned in downtown Garland. (The law is very specific about the number of feet from one's property boundary, including property owned by one's spouse, that requires a public official to recuse himself or herself.) One time I recused myself merely because I held the Power of Attorney for our Aunt Frances and monthly wrote a $4,000 or so check from her funds for her care to a local nursing home, which had appealed to the Plan Commission for modifications to its facility.

Better to err on the side of caution than to leave even the slightest impression of conflict of interest.

One time I recused myself because I as POA signed the monthly checks for Aunt Frances' stay in a local nursing facility that applied to the Plan Commission for an addition to its facility. She died at that facility in 2009 at age 102.

Recusals on the Plan Commission involved privately signing a legal document BEFORE the matter was brought up stating that one was recusing himself/herself from a particular case. The document stated why the recusal was occurring. Then when the matter was ready to be brought before the commission, commissioners who were recusing themselves were required to leave the room immediately before the discussion began and to stay in a special room near the council chambers. We were not allowed to participate in any way in the commission's discussions or decision about the matter, though we were permitted to watch the proceedings on TV.

In one very unfortunate situation which was never made public, a plan commissioner recused himself from a case involving one of his clients, but then it was questioned whether he had actually lobbied other commissioners on behalf of his client to pass the motion. Ultimately the commissioner resigned. The determination was that recusals also mean not lobbying privately for that which a public official cannot vote publicly.

As Kay and I became more interested in the innerworkings of the Garland City Council, we noted how often former Mayor Douglas Athas recused himself whenever he believed a potential conflict existed. His actions were right and in keeping with the Plan Commission rules.

Councilmembers, however, don't seem as fastidious as the former mayor or my former colleagues on the Plan Commission were about recusals. I've seen several situations in recent months in which I wondered why a councilmember hadn't recused himself or herself and left council chambers forthrightly before a discussion or vote. I was supportive last evening (Monday, March 4) when one member of council appropriately did recuse.

One city official explained that the city walks a fine line with councilmembers on the matter of recusals, weighing carefully whether a councilmember, by recusing, loses his/her ability to represent his/her constituents.

Based on what Dallas is now discovering about some of its current and former city councilmembers who are heading to trial or jail over benefiting through bribes and other means from certain projects,  leniency for councilmembers is NOT a good idea.

If I were mayor or a councilmember, I would want to be held consistently to the highest standard possible. I would recuse myself following the same rules as I followed on the Plan Commission.

I was quite surprised recently to learn that the issue of public servants having special legal privileges is also a statewide matter. During the social hour for the four finalists in the City of Garland's quest for a new police chief, the candidate from the Austin Police Department revealed that state law forbids Austin police as well as other police departments around the state from arresting a sitting legislator while the legislature is in session. That means every time the Texas Legislature meets, Austin police face the dilemma of what to do when a legislator in the legislative session is stopped on suspicion of driving under the influence of alcohol or drugs. The candidate indicated it happens more frequently than most Texans realize.

Texas legislators should NOT be exempt from tickets or arrest because the Legislature is in session.

If something is illegal for the average citizen, it ought to be equally illegal for a federal, state, or local government official, too. Americans in general have had enough of their "privileged" elected officials and the perks of their offices. The playing field on this matter needs to be leveled anywhere and everywhere in our various levels of government.

Several have told me that the law regarding legislators came about to prevent police from stopping a legislator on his/her way (speeding perhaps?) to a crucial vote in the legislature. I don't buy that excuse. If a legislator is caught speeding or DUI at any time anywhere, he or she needs to suffer the same punishment as an ordinary citizen would. And if it impacts a vote in the legislature, then the politicians who run the legislature ought to suffer the consequences of one of their own—be it Democrat, Republican, or Independent—who has broken the law.

When I was a reporter for the Houston Chronicle, a prominent local Roman Catholic priest that many of us believed was headed toward the episcopacy invited me to a private lunch at his residence. His motivation was to ask me behind the scenes what would happen if he did become a bishop and was caught DUI. He knew that I knew that alcohol sometimes presented a challenge for him.

My advice to him was simple: Get help to stop drinking, or get a driver when he was drinking, or reject any offer from the Vatican to elevate him to the rank of bishop. I told him in no uncertain terms I could not ethically and would not morally attempt to keep a DUI arrest of a Catholic bishop or any other religious figure out of the newspaper—no matter how good of friends we might be!

It's advice that our Texas legislators and our community leaders also need to follow: Don't try to be above the law; live in such a way that you don't violate the law!

I will always be grateful to former District 2 Councilmember Laura Perkins "Perky" Cox for making me aware of the practice of recusals before I was officially appointed to the Plan Commission.