The Bee Cave Bee

There have been two significant developments in the recusal situation over the Covert development and Council member Kara King, who lives in Falconhead West.

Following on from the unexpected recusal on the matter by Paul Kline and his subsequent resignation the matter was apparently discussed in Executive Session at Council on September 10th. Today (September 11th) Kara King confirmed she would not be recusing herself via her Facebook Group (HERE) - stating "I have been asked many times, by many of you, for a statement on whether or not I will recusing myself on the proposed Covert submission. I will not be recusing because the effect on my property is not distinguishable from anyone else in the community. Please contact me personally if you have any questions". King gave us permission to quote from her FaceBook page.

Today the City issued a long Press Release (see below) containing the State Code on the issue and additonal opinion (presumably from the City Attorney but the City will not confirm that) on recusals.

It throws little light on why Paul Kline recused himself but does appear to place responsibility for recusal (both the choice and the reason) squarely on the individual.

Press Release

City of Bee Cave

September 11, 2013

Recently several questions have been raised regarding the circumstances that require a member of the city council or the city staff to recuse themselves from voting or participating in a matter. State law and the City’s Ethics ordinance govern these situations.

Section 171.004 (a)(2) of the Texas Local Government Code states the following:“Sec. 171.004.  AFFIDAVIT AND ABSTENTION FROM VOTING REQUIRED.  (a)  If a local public official has a substantial interest in a business entity or in real property, the official shall file, before a vote or decision on any matter involving the business entity or the real property, an affidavit stating the nature and extent of the interest and shall abstain from further participation in the matter if:

(1)  in the case of a substantial interest in a business entity the action on the matter will have a special economic effect on the business entity that is distinguishable from the effect on the public; or

(2)  in the case of a substantial interest in real property, it is reasonably foreseeable that an action on the matter will have a special economic effect on the value of the property, distinguishable from its effect on the public.

(b)  The affidavit must be filed with the official record keeper of the governmental entity.

(c)   If a local public official is required to file and does file an affidavit under Subsection (a), the official is not required to abstain from further participation in the matter requiring the affidavit if a majority of the members of the governmental entity of which the official is a member is composed of persons who are likewise required to file and who do file affidavits of similar interests on the same official action.”

A Councilmember or other public official who owns real property in the city may often own a substantial interest in the real property.  However, merely owning real property that meets the definition of a substantial interest pursuant to the statute does not trigger the requirement to file an affidavit and abstain from voting.  The upcoming decision of the public official or the prospective vote of the councilmember must confer a “special economic effect” on the property in question that is separate and distinct from the public generally.  The special economic effect can be either positive or negative.  Whether or not a vote on a particular matter will confer or will not confer a special economic interest is in many cases a subjective determination. The location of the real property in relationship to the matter requiring the vote is only one factor. Statements made by a councilmember or public official in advance of a vote or decision or other factors can sometimes be inferred to mean that the councilmember or public official believes that the matter under consideration will be detrimental (or conversely beneficial) to the councilmember’s or public official’s property and thereby can raise a question that the impending vote may confer a benefit or be detrimental to the property of the councilmember or public official that is distinguishable from the public generally.  Generally speaking when a vote is called for in a zoning or land use type case and the public official or council member’s property is located within 200 feet of the property affected by the vote, the council member or public official is more likely to have a special economic interest that is separate from the public generally. In such cases, state law requires that notice of the pending action be given to property owners within 200 feet and the presumption therefore is that landowners that are required to be notified are thereby presumed to be affected by the pending action.

The Conflict of Interest statute cited above is enforceable against individual public officials or an individual councilmember. For this reason the City does not make nor advocate decisions regarding whether a particular councilmember or public official should or should not file a conflicts affidavit or whether the person does or does not have a conflict of interest. These decisions are made by the individual involved.

In the event that a majority of council members file conflict of interest affidavits, subsection (c) of Section 171.004 provides that in that event then each council member can participate in voting.