No one raised the issue of a potential conflict of interest when City Councilmember Justin Outling made the motion, and then voted in favor of ending the request for proposal (RFP) process for the city health insurance contract at the July 18 City Council meeting.
The motion passed on a 6-to-3 vote with Outling voting in favor of his motion to end the RFP process and the City Council moved on.
But Beloved Community Center activist and former attorney Lewis Pitts has filed a complaint with the North Carolina Bar Association alleging that Outling had a conflict of interest and should be sanctioned.
Questions have been raised about that vote because Outling is an attorney with Brooks Pierce, which does work for UnitedHealthcare (UHC), one of the two companies that participated in the RFP process.
Outling said last week that he didn’t even think it was a close call.
Outling said that if he was found to have a conflict of interest the city would have to revise its long-standing policy on conflicts of interest, which he said was fine with him as long as the city didn’t have “A special Justin Outling policy.”
But Outling said he would follow the advice of City Attorney Tom Carruthers, and if Carruthers said that he had a conflict of interest he would take whatever action was necessary.
This week Carruthers issued his opinion on Outling’s vote and Carruthers agrees it isn’t a close call.
According to Carruthers, Outling was required to vote on the matter because he had no conflict of interest that would allow him to be recused.
The City Council is different from some governing bodies in that, if a councilmember doesn’t have a conflict of interest and is recused, then councilmembers are required to vote. If a councilmember is present and doesn’t vote, the vote is counted as a yes vote. When councilmembers are absent from a meeting they are formally excused.
Carruthers, in his memo to the City Council, states that it is a limited opinion on this one vote. Some of the factors that Carruthers lists are that this was not voting to award a contract but to end an RFP process.
Carruthers states, “There is no direct or indirect financial interest in this termination that falls within the law cited above.” The “laws cited above” are the City Charter and state statutes on conflicts of interest, which require either a direct or indirect financial interest.
He also notes that Outling is not a partner in the Brooks Pierce law firm but an associate of the firm.
Partners in a law firm share in the profits of the firm; associates are employees who are paid a salary. As Outling noted, there is no way that the work the law firm does for UHC would affect his salary.
Carruthers also notes that Brooks Pierce was representing UHC on an entirely unrelated matter and the law firm had no part in the RFP process.
One of the factors that makes the whole situation both unique and sad is that Outling is the only member of the current City Council who has a job in the private sector. Only four of the nine city councilmembers have jobs and the other three all work for nonprofits.
Outling said that the city didn’t want to define conflict of interest in way that would make it impossible for someone who worked in the private sector to be a city councilmember.
When asked why this was coming up now, Outling noted it was campaign season and said, “It’s politics. It’s really a political thing.”
Outling added that he saw the political attack as something of a compliment. He said that evidently they couldn’t find anything in his voting record to attack, so they came up with something else.
Outling said that as long as all the councilmembers were held to the same standard, he had no problem complying, but he added that simply because someone worked for a nonprofit didn’t mean that there were no possible conflicts of interest.
Councilmember Mike Barber is recused from voting on anything that has to do with Gillespie Park because he is president of First Tee of the Triad, which has a working agreement with Gillespie Park to use its facilities for First Tee programs.
In the past, when more city councilmembers had jobs in the private sector, recusal came up more often and was often confusing.
When reopening the White Street Landfill to municipal solid waste was an issue, then Councilmember Nancy Vaughan was recused because then City Councilmember Don Vaughan, who was her husband at that time, had a contract with one of the companies that was bidding on the project. And Zack Matheny, while a city councilmember, was also recused because the company he worked for was doing business with one of the companies that was bidding on a project. But then City Councilmember Robbie Perkins was not recused despite the fact that his company had contracts with one of the companies involved.
Later Nancy Vaughan was allowed to return and participate in the final votes because the company Don Vaughan represented was eliminated from the process.
It was as confusing as it sounds.
Compared to all of that, this instance is a piece of cake.