Conflicts News
- By: Rebekah K. Mojica
Understanding Recusal, Abstention, and Conflicts of Interest
Understanding when and how public officials must – or may choose to – step back from decision-making is essential to maintaining public trust and complying with California law. While the terms recusal and abstention are often used interchangeably, and both involve not voting, they have distinct meanings and procedural requirements. Additionally, officials may be disqualified from participating in certain matters under long-standing due process principles even when no financial conflict exists.
Financial Conflicts of Interest and the Political Reform Act
Under the Political Reform Act (Government Code § 87100 et seq):
A public official at any level of state or local government shall not make, participate in making, or in any way attempt to use the public official’s official position to influence a governmental decision in which the official knows or has reason to know the official has a financial interest.
A conflict exists when a decision is likely to have a material financial effect on the official, their immediate family, business interests, sources of income, or significant gifts received in the prior year. These interests are presumed to create a conflict when the effect is not shared by the public generally or by a significant segment of the community. (See Government Code § 87103).
Recusal: Legal Obligations Under Government Code § 87105
If a financial conflict is identified, the law requires Government Code § 87105 outlines the specific recusal process. The official must:
(1) Publicly disclose the conflict,
(2) Refrain from participating in any discussion or vote on the matter; and
(3) Leave the room until after the discussion and vote have concluded.
The only exception is that the official may speak during public input, if allowed. Even then, many public agencies encourage officials to refrain from making any statement to avoid the appearance of improper influence.
In limited circumstances, exceptions may allow an official to participate despite a financial conflict of interest. For example, the “rule of necessity” may apply when recusal would prevent the body from reaching a quorum or when no other official is legally authorized to act. Other exceptions may apply if the matter involves property or a business in which the official has a unique and controlling interest. These exceptions are narrowly construed, and officials should exercise caution and seek legal counsel before relying on them.
Common Law Conflicts: Bias, Prejudice, and Interest
Separate from financial conflicts, common law conflicts of interest arise from the principle that all public decisions must be made fairly and impartially. Under California case law and the Government Code sections, a public official may be disqualified from participating in a quasi-judicial proceeding if they exhibit bias, prejudice, or a personal interest in the outcome. (See, i.e., Government Code Sections 11425.40). Bias can mean a general lack of impartiality, but more specifically, it includes personal animosity toward a party. Prejudice refers to an official having already formed an opinion about disputed facts. Interest exists when an official stands to gain or lose personally from the outcome. These types of conflicts may require disqualification even in the absence of a financial interest.
Abstention: Exercising Caution When Recusal Is Not Required
While recusal is mandated by law in specific circumstances, abstention is a discretionary choice. An official may choose to abstain from voting to avoid the appearance of impropriety, such as when the matter involves a close personal relationship, potential bias, or a concern about public perception. Unlike recusal, abstaining officials typically remain present and may still be counted toward a quorum, depending on local rules.
Other Disqualifications and Related Doctrines
In addition to the Political Reform Act and common law bias, Government Code § 1090 prohibits public officials from having a financial interest in contracts made in their official capacity. Violations are strict: the contract is void, and even participating in the discussion may trigger liability. Additionally, Government Code § 1099 prohibits officials from holding incompatible public offices – meaning offices with overlapping or conflicting duties – and requires resignation from one position if a conflict exists. In such instances, it is not sufficient to recuse or abstain.
Quorum and Voting Implications
The legal basis for stepping back from a decision affects how the official’s absence is treated. If an official recuses themselves due to a financial or legal conflict, they generally do not count towards a quorum and may not participate in any part of the matter. Contrariwise, abstention depends on local rules and does not necessarily prevent the official from being counted towards the quorum; it may be treated as a “no” vote or excluded from the tally.
When in Doubt, Seek Guidance
Rules governing conflicts of interest are complex and sometimes overlap. Public officials are encouraged to seek legal counsel or consult with the Fair Political Practices Commission when in doubt. Stepping back when required – or even when simply prudent – helps ensure lawful, transparent, and trustworthy governance.