City Ethics Blog Post on the Kickapoo Water Rights Case

Here. Interesting cross-posting on local government ethics, legislative immunity, and Indian law. An excerpt:

A poor and disconcerting judicial decision on local legislative immunity came down on May 24 from the U.S. District Court for the District of Kansas, Kickapoo Tribe v. Black.
The tribe made the argument in its brief that a watershed district board’s members should not be able to raise a defense of legislative immunity when (1) two of them owned property in the project area under consideration by the board, and (2) board members participated in activities that made them appear to be seriously biased, including, with the aid of the Kansas Farm Bureau, lobbying trips to Washington, D.C., and letter writing campaigns to (a) convince local municipal and county governments to oppose the project, and (b) to sway public opinion against the project.
The court dismissed this argument. It wrote in its decision, “The court is bound by the precedent of this circuit directing that the application of legislative immunity hinges on the nature of the act, not the motive of the actor.  See Bogan, 523 U.S. at 54.”
The problem with this statement is that the motive of the actor is not at issue in a conflict situation. What is at issue is the appearance of the actor’s conduct to the public. The public had reason to believe that at least two of the board’s members were acting in their self-interest, due to their ownership of property in the project area, and the public had reason to believe that board members who also lobbied and wrote letters against the project were acting improperly and had a strong bias against the project.
Of course, appearance cannot be measured. But a conflict is not measured by its appearance. It is measured by the facts of the conflict situation, including whether, and to what extent, conflicted officials withdrew from participation. However, the court determined that these facts were completely irrelevant to the case, because they went to the board members’ motives. This shows a serious lack of understanding of conflict situations and of government ethics in general.