Recusal

An architect serving on a state board that selects firms for public projects has an architect-spouse whose office can benefit from the board’s decisions. While the architect on the board excuses herself from board deliberations whenever her husband’s firm competes for state work, some architects think that her knowledge of the board and her collegiality with board members gives her husband’s firm an unfair advantage. Is her recusal on specific projects enough or does her very presence on the board represent a conflict of interest?

Recusal or the disqualification of oneself in the face of a possible conflict of interest typically applies to judicial proceedings, in which judges abstain from cases if they cannot render a fair hearing for any reason. Judicial statues outline the types of situations in which recusal should occur: if judges have a personal prejudice against parties in a case, if they have personal knowledge about disputed facts in a case, if they have already rendered an opinion about a case, or if they or their immediate family will gain financially from a case. Ensuring the ability of a judge to make an impartial decision remains common to them all.

That becomes more difficult when a decision involves a group of people, as in the case here, where one person on a board has an on-going conflict of interest related to her husband’s firm competing for work. Her acknowledging the conflict and recusing herself when her husband’s firm interviews for projects help to minimize the possibility that the board’s decisions might unduly favor that firm. But is that enough? Does her very presence on the board and her knowledge of board discussions give her husband’s office an unfair advantage?

Recusal depends on the virtue of the people involved. The ability of this architect to make a prudent decision on a case-by-case basis, weighing the possible unfairness or injustice that can arise from her position on that board, lies at the heart of this case. If she can temper her desire to see her husband’s firm succeed and not try to influence other board members even when she recuses herself, then a situation like this can work. The problem with focusing only the virtue of the person involved, however, is that others may not believe her or may not agree that she has been prudent or fair enough.

The appearance of conflict of interest matters as much as the actual fact in such situations. With a person in a public position of power such as this, the appearance of favoritism can tarnish every opinion of the group, despite her recusal when her husband’s firm interviews. However much other board members bend over backward to ensure that no undue influence has affected their decisions, the public may not believe them, and that, in the end, is all that counts.

Because of that, either the architect in this case needs to step down from the board or her husband’s firm needs to agree not to pursue state work while she sits on the board. While the others in his firm may not like that prohibition, it seems only fair that it remain an option. It also may be the wisest course for the firm, since the appearance of a conflict of interest may so influence the board that its members may hesitate awarding that firm a state project for quite  awhile. Better to end a conflict of interest than to end up in a futile - and financially draining - effort to overcome it.