McIlmurray op-ed: To recuse or not to recuse, that is the question
Published 12:00 am, Thursday, September 24, 2015
It was with great interest that I read the Memorandum of Decision regarding the case of Michalski v. Town of Darien, et. al. On its face it shows how key elements of the judicial process — proposition, evidence, and argument — come together so that impartial judgments may be rendered in the settling of disputes. As well, in my view it also serves as a reminder of the importance of common sense in the conduct of municipal business.
The filing of the appeal was prompted by a decision made by the Planning & Zoning Commission — and approved by the Board of Selectmen, the Board of Education, and the RTM — to allow for various improvements to be made in the configuration and use of athletic fields at Darien High School. In opposition, Paul Michalski, a town resident whose property abuts the high school, sought to overturn that decision holding that the process employed was unfair. As noted in the decision, the appeal commenced on April 28, 2014 and was summarily dismissed on Sept. 14.
Relative to partiality, Mr. Michalski’s contentions were that 1) there was a conflict of interest and predisposition for granting the application on the part of one of the commissioners (viz., John Sini); 2) the commission violated plaintiff’s right to fundamental fairness; 3) there was a lack of substantial evidence to support the commission’s decision, and; 4) there were various defects in the application and commission’s approval.
Given the nature of the dispute, and the roles of the parties involved, one might expect claims two, three, and four to be included in any action of this type. It is less likely, however, that claim one would be included so routinely. Why? Because individuals who either have or might be perceived to have conflicts of interest would, more often than not, recuse themselves from the proceedings.
During the months preceding the issuance of P&Z’s decision, in public hearings Mr. Michalski openly objected to Mr. Sini’s participation in the process regarding improvements to the high school fields. As noted in the decision, this sentiment was grounded by knowledge of Mr. Sini’s previous affiliations with interested athletic groups (e.g., DJFL, DAF) and service as a spokesman for these groups in past P&Z committee meetings. Notably, before making his final decision, Mr. Sini sought the advice of town counsel, the planning and zoning director, and the chair and vice chair of P&Z. In the end, Mr. Sini decided to participate fully.
While I commend Mr. Sini’s actions to seek the advice of qualified and reputable persons before reaching his decision, and do not dispute either his right to participate or his claim that he could remain “fair and impartial” during P&Z’s decision-making process, I do question his judgment to push the issue at all.
From the outset, it was clear that any participation on his part would feature prominently in the filing of an appeal should any of the proposed field improvements be approved. Upon review of the Memorandum of Decision, such was indeed the case. Notably, the bulk of the commentary presented — and, one might assume the protraction of time and associated increases in legal fees — tie to Mr. Sini’s participation.
Going forward it is hoped that the lesson learned in this case will guide all town officials to be exceedingly thoughtful in weighing their decisions to participate in actions and decisions that have even the slightest hint of conflict of interest or predisposition to results. This is true whether such involvement be for athletic field improvements, downtown parking, or expansion of driving range capacity at a golf club.
Spencer McIlmurray is a candidate for selectman