July 20, 2005
Murkowski also recommends in her letter that a written opinion on the recusal of Commissioners be obtained from either the Department of Justice or the Office of Government Ethics before Commissioners make final recusal decisions.
For a base to be removed from the Pentagon's list of recommended realignments and closures, five of the nine BRAC commissioners must agree. A recusal would not reduce the number of votes needed for base removal.
"It is in the public's interest that every Commissioner participates in the deliberations of the BRAC Commission as fully as the law allows," Murkowski said. "Ideally, no BRAC Commissioner should be forced to recuse him or herself from participating in any issue before the Commission."
Of particular concern is the possible recusal of Commissioner James Bilbray. Bilbray, a former Congressman from Nevada, indicated during the BRAC regional hearing in Fairbanks, that on the advice of BRAC counsel, he would recuse himself from Commission votes related to Eielson. If followed, the Pentagon's recommendations for Eielson would reduce the base to "warm status," resulting in the transfer of its F-16 aircraft to Nellis Air Force base in Nevada.
Murkowski notes in her letter that media accounts have indicated that BRAC staff were initially confused about the applicable rules governing ethical conflicts of interest and that Bilbray was given no choice as to his recusal despite this confusion. Bilbray has been quoted as saying that he will be impartial and fair in relation to Eielson and that if he didn't think planes should go to Nellis, he would be the first one to say so.
On June 14, Commission spokesman Jim Schaefer was quoted as saying that he didn't believe Commissioner Bilbray needed to recuse himself on the Eielson issue.  Subsequently, on June 15th, Schaefer is quoted as saying that "Commission bylaws mandate that commissioners abstain from voting on issues that directly affect their home states." Bilbray, on the other hand, contended that the recusal decision followed questions from the media about his impartiality.
"No base should be further endangered with realignment or closure by the recusal of a Commissioner without a clear understanding of the rules governing each particular case," Murkowski said.
"Recognizing that it is impossible to predict all conceivable situations, the government-wide ethics regulations for Special Government Employees, such as BRAC Commissioners provided by the U.S. Office of Government Ethics do not require a person to abstain from the performance of his or her official duties absent a showing that the individual, a family member or a close associate will benefit financially from the government employee's decisions," Murkowski notes in her letter.
"To the best of my knowledge, nobody has suggested that Commissioner Bilbray, his family members, or those associated with him, have any financial stake in the outcome of the BRAC Commission's deliberations."
"I share the Commission's desire to operate above reproach and free from any real or perceived bias. However, I would respectfully submit that it is just as egregious to arbitrarily exclude an unbiased Commissioner from full participation as it is to permit a Commissioner with a direct and substantial financial interest in the outcome of a decision to fully participate," Murkowski said.
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