When should a trustee ‘recuse’ from the table?
Post Independent Staff
CARBONDALE — The town’s trustees have for years debated exactly when and why one of their number should “recuse” him or herself from involvement in a meeting topic, due to a real or perceived conflict of interest.
At a work session on May 21, they got down on the mat with each other, figuratively speaking, in an effort to come up with a policy to govern such decisions.
Because it was a work session, no formal decisions could be made.
Recusal is a quasi-judicial procedure in which an elected official leaves the council chambers during a discussion of a proposed development in which he or she is believed to have a financial stake or a bias either for or against the project.
With the help of town attorney Mark Hamilton and Glenwood Springs city attorney Jan Schute, the trustees spent considerable time batting the subject about, sometimes testily.
The discussion at times focused on past instances when trustees were encouraged or forced to recuse themselves over perceptions of conflicts of interest or the possibility of perceived bias. One was when Trustee John Foulkrod had to recuse himself from either discussing or voting on the controversial Village at Crystal River, after it was revealed that Foulkrod held a minor interest in the project.
Another was a recent recusal by Trustee Elizabeth Murphy from discussing or voting on a proposed new medical office building on Highway 133, because her husband is a doctor associated with Valley View Hospital, owner of the medical center business.
At one point early in the discussion, Foulkrod reacted angrily to having the VCR issue raised by Mayor Stacey Bernot, who then admonished him for seeming a little defensive on the point.
“I am getting defensive,” Foulkrod shot back. “I’ve been through a lot of stuff on this board in 20 years.”
Foulkrod also was upset over having to recuse himself from discussion of the Valley View Hospital medical office proposal because of his association with a ditch that would be moved if the project goes forward.
“I’m saying that, all of a sudden, in the last week, because of a ditch, we’ve changed the way we do business,” he said, referring to the town’s requirement that formal notification of a proposed development be sent to any and all property owners within 300 feet of that development, and recent suggestions by trustees that any trustee who receives such a notice should recuse himself or herself from voting on the matter.
Foulkrod, however, maintained that former mayor Michael Hassig lived within 200 feet of what Foulkrod indicated was a large project, but never revealed that or recused himself over it.
As for himself, Foulkrod declared, “I have always disclosed any conflict, for a long period of time.”
In general, the main topic was the 300-foot notification requirement, which the Carbondale land use code does not specifically give as a reason for recusal.
During discussion of these notification requirements, Schute told the trustees that even if there is only an appearance of a conflict because a trustee lives close to a proposed development, recusal is “the most honorable thing that you can do” to preserve public confidence in the town’s review process.
After considerable back and forth on the topic, the trustees seemed ready to agree that the 300-foot notification rule is reasonable and that receipt by a trustee of a notice of that kind is sufficient reason for recusal.
“I thought it was, from my perspective, a productive discussion,” said attorney Hamilton in a telephone interview later in the week.
“There were no bloody noses,” he said with a chuckle, “although early on it looked as though there might be.”
He said the trustees did not direct him to draw up a proposed ethics policy for the board, but predicted that the issue is likely to come up again in the future.
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