At Tuesday's Common Council meeting, Burk Tower and Bryan Bain voted "present" on two issues because they claimed that their employment at UW Oshkosh presented a potential conflict. One issue dealt with approving university run parking meters, the other was the hotel-motel room tax increase. Apparently the hotel-motel tax presented a potential conflict because monies raised from the tax might be used someday for assisting in the remodeling of Titan Stadium.
I can appreciate Tower's and Bain's desire to avoid even a suspicion of conflict, but I think their non-votes on these two matters represents a serious misreading of state law. As of April 17 there will be three university employees on the council, so it is vital that we get some clarity on what the law actually states. I'll take a preliminary stab at the matter here, but I suspect that ultimately we will need to request formal legal advice.
The key state statutes relating to conflicts of interest for elected officials can be found in chapter 19. As summarized by the League of Wisconsin Municipalities
, chapter 19 prohibits the following conduct:
1. Use of Office for Private Gain. Public officials are prohibited from using their offices to obtain financial gain or anything of substantial value for the private benefit of themselves, their immediate families, or organizations with which they are associated.
2. Offering or Receiving Anything of Value. No person may give and no public official may receive "anything of value" if it could reasonably be expected to influence the local public official's vote, official action or judgment, or could reasonably be considered as a reward for any official action or inaction.
3. Taking Action Affecting a Matter in Which Official Has Financial Interest. Local officials may not take official action substantially affecting a matter in which the official, an immediate family member, or an organization with which the official is associated has a substantial financial interest. Nor may an official use his or her office in a way that produces or assists in the production of a substantial benefit for the official, immediate family member or organization with which the official is associated.
Where the confusion comes in is in the line "organization with which the official is associated." Clearly Tower and Bain have been urged or decided on their own to interpret that as meaning that merely being employed by an organization affected by a resolution or ordinance is enough to warrant abstention from voting. But statute 19.42(2) says that "'Associated', when used with reference to an organization, includes any organization in which an individual or a member of his or her immediate family is a director, officer or trustee, or owns or controls, directly or indirectly, and severally or in the aggregate, at least 10% of the outstanding equity or of which an individual or a member of his or her immediate family is an authorized representative or agent."
Curt Wytinski, legal counsel for The League of Wisconsin Municipalities, says that "An individual is not associated with an organization merely because the individual is a member or employe of an organization or business."
No Councilor should vote on anything that makes them uncomfortable. On the other hand, I am concerned that a misreading of state law can have the effect of disenfranchising an elected official for no good reason while at the same time denying citizens the representation to which they are entitled.
With the university now potentially involved in the redevelopment of the riverfront, it is critical that the conflict issues be resolved. I did mention this matter to city attorney Warren Kraft last week, and he said that he will be looking into it.