Traverse City Record-Eagle

December 26, 2013

Lathrop stands by vote despite possible ethics code violation

BY MICHAEL WALTON
mwalton@record-eagle.com

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TRAVERSE CITY — A Grand Traverse County commissioner won't back off a vote that other officials said violated the county's ethics policy.

Commissioner Dan Lathrop said he stands by his decision to vote in a commission committee's 4 to 3 approval of an agreement that grants county Drain Commissioner Kevin McElyea authority to administer some township storm water ordinances. Lathrop's relationship with McElyea prompted questions about whether Lathrop's vote constituted a conflict of interest.

Lathrop lives with and co-owns a house with McElyea. He maintained this week he did nothing wrong based on the opinions of two attorneys he consulted in the aftermath of the Dec. 11 meeting when he cast his vote.

"It boils down to, as far as I know, that if I vote, I don’t break any laws, ethically or legally," Lathrop said.

Lathrop's vote was legal under Michigan law, according to a memo prepare by Bob Cooney, the county's civil counsel and prosecuting attorney. But the ethical standing of Lathrop's decision not to abstain is less clear.

The county's code of ethics requires officials to "avoid all situations where prejudice, bias, or opportunity for personal gain could influence there decisions."  Even the appearance of improper conduct should be avoided, according to the memo.

Cooney said he believes Lathrop should have abstained, based on the ethics code.

"I think it does create an appearance of impropriety and I've told him that," Cooney said.

But Cooney's memo to board members doesn't say that, and county policy neither subjects commissioners to disciplinary actions for ethics code violations nor prevents them from voting on matters when a potential conflict of interest exists. The memo concludes that "only Lathrop can make the decision whether to abstain from voting" based upon the applicable laws and policies.

"It's frustrating that there isn't a more clear rule," Cooney said. "These questions come up from time to time. I wish I could give a yes or no answer and be done with it, but that's not the way it is."

McElyea, in an interview following Lathrop's initial vote, said the agreement to administer township ordinances doesn't equate to granting him additional powers. He also said it creates more work for him with no additional pay, something that only will benefit the townships in question. He couldn't be reached for further comment on Thursday.

Several commission members previously pointed to the "pro bono" nature of the agreement to argue that Lathrop did not face a conflict of interest when he voted, but Cooney's memo states McElyea's willingness to administer the ordinances free of charge is "of no consequence."

Commission Chair Herb Lemcool said Lathrop violated board rules when he voted on the agreements. He said board members will discuss Lathrop's vote at a commission meeting tonight, but he said there might not be much other board members can do about it.

"It's all in Dan Lathrop's court at this point," Lemcool said.

Lathrop said commissioners need to have a good reason to abstain from a vote.

"If I don't believe I have a conflict of interest; I have a legal obligation to cast a vote one way or another on this issue," he said.

Lathrop added the county ethics policy's reliance on self-policing comes down to elected officials' integrity.

"What they're relying on is the individual's integrity and if the public doesn't think someone has integrity they will fix it at the polls," he said.