Conflict of Interest rules apply to all communities, regardless of size
Often a small community struggles to avoid a “conflict of interest” situation – particularly hard because of its small size. But there are not any exceptions or special dispensation due to the size of a community.
Most are familiar with the idea that a person in a government office should avoid conflict of interest. But sometimes in small communities that can be difficult.
A conflict of interest means a situation when one is making a decision in their government office capacity which is also impacting one’s:
- Relatives/family (employer/employees, business partner)
- Proximity (as it influences one’s property value)
Courts and statutes have established the minimum standard which creates a conflict of interest. However, a local government or a government body (in its bylaws or rules of procedure) can raise the bar and set a higher standard for when a situation is considered a conflict of interest.
For example, “proximity” at a minimum means adjacent, as in next door. So if a member of a planning commission has his or her next door neighbor applying for a special use permit, that planning commission member would have a conflict of interest. But what about two doors or 300 feet away? Those would be the “higher standard” for when a situation is considered a conflict of interest. But it is not always good to raise the bar in this way. In a very small village, if everything within 300 feet is a conflict of interest, the village may constantly lose a quorum. So a community has to balance practicality with the level of standard before something becomes a conflict of interest.
The same type of balancing should be thought about for “relatives.” Is it immediate family, extended family or third cousin twice removed? The same issue exists between what is pragmatic and the level of standard before something becomes a conflict of interests. There will be communities where the definition of “relatives” may result in constantly losing a quorum to be able to conduct business.
For a planning commission or zoning board of appeals, Michigan law does not provide for, or give any special dispensation due to the size of a community, or the likelihood there may be more or less opportunity for conflict of interest to exist. Michigan State University Extension land use educators receive questions from time-to-time from individuals who are looking for some exception or special consideration from these rules because their community is small. Those types of exceptions or special considerations do not exist for planning commissions or zoning boards of appeals.
(The rules about conflict of interest can be different for elected bodies. For example, a county commissioner shall not be interested directly or indirectly in any contract or other business transaction with the county unless the contract or transaction has been approved by 3/4 of the members of the county board of commissioners [MCL 46.30]. )
When one has a conflict of interest that does not preclude one from serving on a board or commission, it does mean for that particular case, the member with the conflict does not vote, discuss (in or outside the meeting), or participate at the meeting (e.g., leaves the meeting room) for that agenda item. If the member has interests that need to be represented on that agenda item, it is done through an agent (spouse, lawyer, friend or other person). Appointments to a planning commission or zoning board of appeals are up to the elected body (township board of trustees, village council, city council, county board of commissioners) and they are free to appoint whomever they wish, and not appoint whomever they wish, within the confines of the municipal planning commission ordinance or the zoning board of appeals section of the zoning ordinance. Appointment is a decision and does not need an explanation.
“Incompatible office” is different. It is when one person holds two public offices, and one office is subordinate to the other, or one office is responsible for a contract relationship, or negotiation, with the other. In those instances, the person cannot hold both offices, and must resign from one. (Some prosecuting attorneys will say the first office is automatically vacated upon appointment to the second office, whether the person intended to do so or not.) So consideration of a possible incompatible office may be an important consideration by an elected body when appointing someone to a planning commission or zoning board of appeals. Also there are some exceptions to incompatible office situations. Exceptions to the incompatible office rule are the ex officio member(s) of a planning commission (that also serves on the legislative body) (MCL 125.3815(5)), the ex officio member of the zoning board of appeals (that also serves on the planning commission) (MCL 125.3601(4)) and the ex officio member of the zoning board of appeals (that also serves on the legislative body) (MCL 125.3601(6)). (The rules about incompatible office can be different for elected bodies. For example, a “public servant” can be emergency medical service personnel if in a local government with a population fewer than 25,000 [MCL 15.323a]. Other exceptions exist for public servants that work less than 25 hours per week and other considerations [MCL 15.323], and a list of other miscellaneous exceptions [MCL 15.183], not all of which generally apply to planning commissions and zoning boards of appeals.)