Councilman Miller’s Change of Heart – UPDATED x 2
By(Update x 2 at the bottom of this post.)
Thanks to hooligan RHS for noting in the comments that appointed City Councilman Kelly Miller appears to be moving the bar he himself set. Miller is employed by the Tourism Development Authority within the Asheville Chamber of Commerce. A portion of his salary is paid by tax dollars. During the interview process for his appointment:
Council member Brownie Newman, meanwhile, noted that the Chamber of Commerce also plays a political and advocacy role in the community, wondering whether that would constitute a conflict of interest for Miller.
If such an issue came up, “I would definitely recuse myself,†Miller replied.
And here at Scrutiny Hooligans, Councilman Miller wrote,
“Similar to Mayor Bellamy’s recuse position on City funding to Mountain Housing Opportunities when she was employed there, I do consider occupancy tax one of those conflict issues and would recuse myself accordingly and not vote. I hope this clarifies my consistent position on this matter.â€
Imagine our surprise when we learned that Councilman Miller’s “consistent position” changed yesterday. He did not recuse himself from a vote on an issue involving dedicating a portion of the occupancy tax to funding Civic Center improvements. In his professional capacity at the Tourism Development Authority, Miller has opposed any changes to the room tax. He brought that judgment into the debate yesterday. Mountain Xpress:
Backed up by the city’s attorney at Asheville City Council’s Jan. 27 meeting, council member Kelly Miller declined to recuse himself from a motion to include a hotel/motel tax request on council’s legislative agenda.
Miller, who was appointed to his council seat in December, serves as the executive vice president of the Asheville area Chamber of Commerce, which receives money from the current four percent hotel/motel tax and opposes a redirection or increase of that tax.
[...]
““It is hard for me to imagine that if I’m paid to do a specific thing, then to come back here and vote contrary to that. … It seems like some real tension,†said Councilman Brownie Newman.“I’m really surprised … that this is not a conflict of interest,†said Councilman Carl Mumpower. “In my personal view, there clearly is.â€
[...]
“Davis’ room tax request made the legislative list in a 4-3 vote, with Mumpower, Miller and Councilman Bill Russell voting against it.”
So when exactly is Councilman Miller going to recuse himself from votes tied to his employment? This issue is going to dog him throughout his tenure unless he’s willing to be perfectly clear as to what he defines as conflict of interest. Mayor Bellamy works hard to avoid even the appearance of impropriety, and Miller would be better off doing the same. Until citizens see that he’s willing to either recuse himself on matters involving the TDA or to vote against the Chamber’s position on these issues, he’s going to be seen as a representative of that specific special interest.
You can tell Councilman Miller what you think here: kellyforcouncil@gmail.com
UPDATE: Asheville Citizen-Times reports that City Attorney Bob Oast says that it’s not a conflict of interest and that Miller can not recuse himself unless it is meets the legal standard. That’s right, kids. We’ve somehow gone all this time without knowing that it’s illegal under NC law for a City Council to recuse himself unless his conflict of interest meets the definition. Here’s the salient quote:
“Just because there is an interest, it’s not necessarily a disqualifying conflict of interest. It has to be direct, substantial and readily identifiable,†Oast said. “I’m not sure that if one of you all owned a hotel it would disqualify you.â€
In fact, the state law says if there is no direct conflict of interest, council members such as Miller cannot recuse themselves and must vote, Oast said. A disqualifying conflict of interest would be if a council member’s employer was bidding on a city contract, he said.”
Looks like Councliman Miller gets some heretofore unknown wiggle room. How is it this hasn’t come up before? Regardless, it looks like Miller’s campaign promise was ill-informed.
If it’s illegal to recuse oneself without meeting the statutory requirements to do so, then Miller’s in the right, but everyone from Carl Mumpower to Brownie Newman knows it ain’t right.
UPDATE:Â More from today’s AC-T:
“City Councilman Kelly Miller could have opted not to vote Tuesday on how to spend hotel tax money because of concerns he had a conflict of interest.
But under state law, Miller would have had to convince his colleagues on City Council to excuse him or the step would have resulted in Miller being counted as a “yes†vote for the proposal — even if he had left the room before City Council voted.
It takes a vote by City Council to excuse a member from voting, an expert on municipal law and City Attorney Bob Oast both said Wednesday. And council isn’t supposed to take such a step unless there is a direct, substantial and readily identifiable conflict.
The law seems to cast a new light on a statement Miller made when council was considering whether to appoint him to a vacant seat last year.
Miller said he would recuse himself from voting on issues on which the chamber has taken a position.
The law, however, says Miller’s colleagues would have to vote to allow him not to vote.”
17 Comments
January 28th, 2009 at 2:44 pm
Asheville city attorney may have ruled that Councilman Miller’s voting on this issue does not represent a conflict of interest, but this is irrelevant to the issue at hand. Councilman Miller’s actions yesterday run contrary to what he said, both in his interview before Council and in his post here on January 14.
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January 28th, 2009 at 2:56 pm
Hey Michael!
What say you now? Even Carl thinks it’s stinky.
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January 28th, 2009 at 3:26 pm
Sorry, Gordon. I’m not allowed to play with you anymore.
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January 28th, 2009 at 4:57 pm
Sorry Gordon .. this is starting to have the stench of a witch hunt!
I understand your point and I feel Mr. Miller will clarify his position in the near future. Regardless how you or I feel on the subject, Mr. Miller understands his role in serving the people of Asheville AND balancing his duties to the Asheville Chamber of Commerce and the Convention & Visitor’s Bureau. Mr. Miller’s contributions to the tourism industry here in Asheville are unquestioned and well respected throughout our community. Without his efforts, many tourists would not visit Asheville, therefor not lining the coffers of local hotels, restaurants and area shops. That would be an economic disaster!
I’m glad we live in a society we can express our dissent. But come on .. cut him some slack. I think as “we” get know his positions over a period of time, you might be suprised to find that Mr. Miller is honest, consistent and will demonstrate his dedication to this city which he cares so much about.
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January 28th, 2009 at 4:57 pm
So is every post about Miller now? I don’t know which one to post in. AHHHHHHHHHHHHH!
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January 28th, 2009 at 5:01 pm
Well, we are not in love with Miller quite yet — and you know what they say about first impressions. As for the honesty, it hard to back that up with you LIE about one of the things that got you the job in the first place, Mr. Miller. I guess this is one issue that most of us can agree with the Mumster on …. Geeze, Miller is bringing us and Carl together. Stop him now!!
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January 28th, 2009 at 6:16 pm
Thanks for stopping by, Will. I’m sure you understand that the subject of conflicts of interest among members of city council is of interest to politically aware people in Asheville. Councilmen Newman and Mumpower both found fault with Mr. Miller’s choice not to recuse himself from a matter that clearly intersects with his role at the Chamber of Commerce. If this is all it takes to amount to a “witch hunt”, then the definition of that has changed since I last looked.
If Councilman Miller wants to avoid the appearance of conflict of interest he can do so. Or he can continually have to nuance his position to conform to his behavior. I think the citizens of Asheville would prefer the former.
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January 28th, 2009 at 7:10 pm
It hath been Reported to me, fromme Persons unnamed for fear of their Good Welfare and Mortal Souls, that Council-man Miller hath been seen, Cavorting Most Foully by Moone-light with Demons in the form of bothe Cats and Land-Developers, and Blasting ye Crops.
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January 28th, 2009 at 8:10 pm
Gordon – I agree and I disagree. KM will do is what right to prosper Aaheville. We need to have a beer.
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January 28th, 2009 at 8:12 pm
As far as Mumpower, I have no respect.
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January 28th, 2009 at 8:13 pm
No witch hunt. I am perfectly willing to defer to the City Attorney on whether or not Councilman Miller’s vote on this is a conflict of interest. The issue at hand is why Councilman Miller went back on his word to recuse himself from voting on any issue on which the Chamber of Commerce has taken a stand — a pledge he made during his interview with Council and in his post at this site just two weeks ago. He owes the citizens of Asheville and explanation.
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January 28th, 2009 at 11:50 pm
Will,
I’d love to have a beer. Email me using the contact form here.
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January 29th, 2009 at 5:56 am
Of course, crediting Miller for his efforts to keep our region’s economy hooked on tourism begs the question of whether it is beneficial to the people here to hitch our wagon to a petroleum-dependent income stream.
We saw a serious dip in tourism last summer when gas prices hit $4 per gallon. Prices are moving up now and industry analysts see no change in the fundamentals that drove oil up last year. The recession has put a temporary damper on the rise. With the combination of post-peak oil and cap-and-trade efforts to ameliorate climate change, fuel prices will continue to rise and tourism will fall. Not in some distant future, but in the coming decade.
In this particular case, the Civic Center is an economic engine for Asheville. Big name shows there create a significant source of income for Asheville businesses including hotels and motels where concert goers crash after late night concerts. Most of the concert/show patrons are not the targets of Miller’s tourist ad campaign which principally benefits the Biltmore Estate, Grove Park Inn and other “destination” venues. When Miller votes against turning some of the hotel tax toward fixing the Civic Center, he is voting against the best interests of Asheville residents.
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January 29th, 2009 at 9:18 am
According to today’s Citizen-Times state law required that Councilman Miller get permission from his Council colleagues in order to recuse himself from a vote and that Council “isn’t supposed to take such a step unless there is a direct, substantial and readily identifiable conflict.” Had he recused himself without their permission he would have had an automatic “yes” vote recorded:
http://citizen-times.com/apps/pbcs.dll/article?AID=2009901290326
Since the City Attorney had ruled that not such conflict of interest was present in this case it is possible that Council would have denied any request to be recused that Councilman Miller might have made. But would not making such a request, particularly in light of his previous promises to recuse himself from voting on any matter on which the Chamber of Commerce has taken a stance taken an extra step to eliminate even the appearance of a conflict of interest? Would not a “yes” vote in contrast to the COC’s position on this issue, recorded either formally or after an unauthorized recusing, done the same thing?
Does anyone recall how the process worked when Mayor Bellamy recused herself from votes involving her, then, employer Mountain Housing Opportunities?
It seems that the explanation raises more questions than it answers.
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January 29th, 2009 at 11:26 am
It always surprises me that journalists and those commenting on issues like this almost always only rely on what they are told rather than referring to the controlling document.
The statute involved is as follows:
§ 160A-75. Voting.
No member shall be excused from voting except upon matters involving the consideration of the member’s own financial interest or official conduct or on matters on which the member is prohibited from voting under G.S. 14-234, 160A-381(d), or 160A-388(e1). In all other cases, a failure to vote by a member who is physically present in the council chamber, or who has withdrawn without being excused by a majority vote of the remaining members present, shall be recorded as an affirmative vote.
GS 14-234 is the associated criminal statute. 160A-381(d) is a about zoning votes and 160A-388(e1) concerns Zoning Board of Adjustment votes.
The phrase “who has withdrawn without being excused by a majority vote of the remaining members present” implies recusal can only requested be requested by the person involved and must be affirmatively accepted by “the remaining members present.” In other words, Miller could not recuse himself, only request he be allowed to recuse himself. Then, “the remaining members,” not their lawyer, decide.
Due to the construction of the statute it is clear to me that the statute has 2 goals, namely:
1) to stop ethical misconduct; and,
2) to force elected officials to vote on politically sensitive issues.
It, also, seems to me that all of this is using legal parsing to avoid the key issue: Was it ethical for Miller to vote in this case? And that cannot be answered without asking the underlying questions, namely:
1) Did he have a personal conflict of interest?
2) Was he on record saying that he wouldn’t participate in a decision like this?
As has been shown above, the answer to question #2 is “yes.” Thus, it is clear to me that the Ashville City Council had a clear responsibility to ask the other questions and discuss them thoroughly during the course of a public meeting. It appears they only did it very shallowly.
Another point which gets lost in all this legalizing is that recusal is only one way to deal with a conflict of interest. The other is for the person involved to openly state the particulars of the conflict of interest and then state that s/he believes that s/he is still able to fulfill his/her duties and then participate fully in the debate and vote.
Questioning ethics takes greater courage than most of us have.
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January 29th, 2009 at 2:09 pm
Council member Miller’s quote from the Dec. 9 candidate interview:
Council member Brownie Newman:
“So when the Chamber staff and board take specific positions on areas of public policy or on specific projects in the community, do you consider that a conflict of interest, and would you recuse yourself from voting on policies or specific projects where the chamber has taken specific positions?”
Kelly Miller:
“When I do find that there is a conflict of interest, in having checked with legal on this perhaps, I would definitely recuse myself.”
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January 29th, 2009 at 9:43 pm
Back before Mayor Bellamy was mayor and while she was serving on Council she recused herself when matters involving her then employer Mountain Housing Opportunities came before Council. Does anyone recall if she was required to get permission of the rest of Council to do so?
Given Councilman Miller’s saying he would recuse himself from voting on matters the COC has taken a position on it seems that, and his specific statement here at SH that he would recuse himself in this particular manner, at the very leas, he needed to ask Council to allow him to be recused. This did not happen and more questions have been raised in the process.
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