Rafi Kedoshim refused to fill out a conflict of interest questionnaire — and lost in court

Two members of the Herzliya City Council from the opposition Likud faction, Rafi Haim Kedoshim and Eti Nahum, lost the legal battle they waged against the city council's decisions to require its members to fill out a conflict of interest questionnaire and to allow their suspension from committees and municipal corporation management as long as they have not filled it out.

The Administrative Court in Tel Aviv rejected the petition and ruled that the city council has the authority to make these decisions. The petitioners were ordered to pay the municipality costs in the amount of 10,000 shekels.

The dispute began with a decision made by the city council in April 2024, according to which council members would fill out a conflict of interest questionnaire as a condition for serving on committees and municipal corporations. The ruling noted that the condition itself was not actually enforced. In August of that year, another decision was made, stating that the council would be asked to approve the suspension of the membership in committees and municipal corporation management of those who had not yet filled out the questionnaire.

The petitioners abstained in the votes where the decisions were made. Later, they turned to the supervisor of the Tel Aviv District in the Ministry of Interior, but their complaint was rejected. In the petition, Kedoshim and Nahum argued that the city council exceeded its authority and that, according to the principle of administrative legality, the municipality may act only within the framework of the powers granted to it by law.

According to them, the legislator explicitly established the obligation to fill out a questionnaire as a condition for service only in relation to the Planning and Building Committee, while the council took for itself an authority that does not exist in law. They argued that this is "judicial activism contrary to the doctrine" and that the municipality engaged in "self-help" and took authority "out of thin air."

The petitioners added that the decisions infringe on their right to vote and be elected and on their rights as public officials from the opposition. They also claimed a severe violation of privacy due to the requirement to provide information regarding relatives within the questionnaire. In their view, the municipality uses the argument of a "theoretical conflict of interest" to expand its authority and impose restrictions on them.

On the other hand, the Herzliya Municipality requested to reject the petition. It argued that the petition was filed with a delay, after the petitioners abstained in the votes and did not express substantive opposition in real time. The municipality even claimed that the two are acting in bad faith and without clean hands and are using the court as a tool for "political sparring" and "theoretical debate" instead of resolving the dispute by filling out the questionnaire.

On the merits, the municipality argued that these are internal administrative decisions aimed at preventing a conflict of interest and maintaining integrity and transparency. In its view, the principle of preventing a conflict of interest applies even when there is no explicit legal provision, and the requirement applies equally to all council members. The municipality also rejected the claim of an unjustified violation of privacy and argued that the right of public officials to privacy in this context is limited.

Judge Dana Amir ruled that the city council has the authority to require its members to fill out the questionnaire. The ruling determined that this is a "proportionate, reasonable, and reasonably necessary auxiliary power to ensure the supreme principle prohibiting a conflict of interest." It was also determined that even if there is a certain violation of privacy, it is a minor violation, among other things because those providing the information are public officials who owe a duty of trust and disclosure.

The court emphasized that the purpose of the questionnaire is to enable a preventive and orderly mechanism that will identify in advance focal points where a council member might be in a conflict of interest, instead of relying only on a point-by-point report by the public official when a certain issue comes up for discussion. The ruling determined that such information is naturally found mainly in the possession of the council member himself, and therefore there is a need for a mechanism that will allow for the prior examination of relevant ties.

Regarding the petitioners' refusal to fill out the questionnaire, the judge ruled that as public officials they owe duties of trust and disclosure, and that "the very refusal to fill out the questionnaire and provide information regarding their affairs and ties that could put them in a conflict of interest constitutes circumstantial evidence of the existence of a reasonable suspicion of a conflict of interest in any matter handled by the relevant committees and municipal corporation management." The court added that they can remove the suspicion by filling out the questionnaire, but they chose not to do so.

The court also examined the petitioners' claim that their suspension from the committees infringes on their right to vote and be elected. The ruling emphasized that the authority to require a person to perform an action does not automatically grant the authority permission to use any enforcement measure, and that the enforcement of a legal decision must also meet the tests of proportionality and reasonableness.

However, in this case, the judge ruled that the suspension meets these tests. The ruling noted that as long as the petitioners refuse to provide the information, it is impossible to tailor for them limited abstention arrangements that would apply only to issues where there is a concrete suspicion of a conflict of interest. "In the absence of this information, which is usually in the exclusive possession of the council members themselves, the council has no choice but to 'fence in the risks'," it was determined.

The judge added that the petitioners themselves can bring about the end of the suspension at any time by filling out the questionnaire. According to her, this fact does not in itself make every enforcement measure proportionate, but it is an additional consideration in examining the intensity of the harm in the current case.

In the summary of the ruling, the judge determined that "the council has an auxiliary authority to require its members to fill out the questionnaire and to suspend the service of its members on committees and in municipal corporations until it is filled out." She further determined that "since the petitioners refused to fill out the questionnaire, contrary to a binding decision of the council, they violated by their very refusal the duty of trust they owe." According to her, although there is an infringement of their rights, "it is a limited infringement, which is not disproportionate and is reasonable under the circumstances."

Ultimately, the petition was rejected. The court noted that it also found merit in most of the preliminary arguments raised by the municipality, including arguments regarding delay and a degree of bad faith. Alongside this, it was noted that following the petition, a flaw in the original questionnaire was corrected, and therefore it had a "certain contribution to the public interest." After weighing the considerations, Kedoshim and Nahum were ordered to pay the Herzliya Municipality costs in the amount of 10,000 shekels within 30 days.