>> All right.
Good afternoon, everybody.
Can you all hear me on Zoom?
Okay.
I'm hearing heads nodding.
So I guess things changed from what we thought at the last meeting.
The person that is chairing the meeting has to be in person.
So I'm here and all of you are on Zoom.
And so it's going to be a little bit more difficult to share what we're -- like share
screen of exactly -- well, we're not able to share screen kind of because of the setup
right now.
But anyway.
All right.
And so we have everyone here.
We have seven people here.
So Debra, I don't think we're going to need you because we're going to have seven people.
So I guess you can jump off or you can stay on if you're interested.
But you won't be able to participate in the meeting.
All right.
Yeah.
We -- I don't think we can hear them.
So that might be -- so I think you all can hear me.
But I can't -- I don't think we can hear you all.
So we're going to work on that.
Sorry.
Okay.
And so actually I didn't -- I don't -- so I don't have my computer in front of me.
So I don't have the first sheet.
Yeah.
Sorry about that.
That's the one I'm missing.
I'm much better prepared when my computer's in front of me.
But all right.
Would you speak and let her know that you can talk?
Did you all hear that?
Yes.
Rough.
Okay.
Now we're cooking.
Now I can hear you all.
Okay.
So let's just move to item A, 1A, consider approval of the minutes for May 20th, 2021.
Did anybody have any corrections or anything they saw wrong with those minutes?
No.
I did not.
All right.
So does it -- do I have a motion to approve those minutes?
I move to approve the minutes of May 20th.
Sorry.
May 20th.
May 20th, 2021.
All right.
Do I have a second?
Yeah.
All right.
So Sharla made the motion.
Annetta seconded it.
And I'll go through and do a vote.
So Dawn?
Aye.
Yes.
Me, I say aye.
Dustin?
Aye.
Annetta?
Aye.
Patricia?
Aye.
Sharla?
Aye.
And Andrea?
Aye.
I abstain since I was not part of the meeting.
Okay.
Thank you.
All right.
So motion.
Sorry.
Yes.
I'm going to have to break in.
Sorry, our rules of procedure don't allow you to abstain for -- unless there's an actual
conflict of interest.
Just not being there at the last one.
And this came up the last time we had a changeover too.
But if there's no changes, you can -- you can vote along with them.
Sorry.
All right.
Thanks, Trey.
Okay.
Oh, and welcome -- I guess welcome to the meeting, Andrea.
And welcome to the board.
So item B, receive a report, hold a discussion, and take necessary action regarding potential
recommendations to amend the Code of Ordinances, Chapter 2, Article 11, Ethics.
Okay.
So going to the agenda information sheet that was sent out as part of our board packet,
I guess do you want -- do you want to talk about it, Madison, or do you want me to just
go over the minor adjustments under one?
I can walk us through it, or, I mean, in the backup, there's the red lines, and I tried
to explain the minor adjustments in the agenda packet so that you could understand what I
was trying to do.
So I can answer questions, or I could walk through them.
I don't know what's -- if you want to take them one at a time.
Yeah, I guess -- I guess you can walk through since you're the ones who made the actual
adjustments.
Okay.
And then we can -- if we have questions, maybe we can take them as we go.
Sure.
So, yeah, starting with the -- kind of the first one under number 1A, this was just a
very minor adjustment that we noted when we were looking at the ethics complaint form.
It said -- originally, it said under -- in Section 2-279 complaints, Section A, it said
any person who had firsthand knowledge that there has been a violation of Sections 2-272
and 2-273.
So this is just a correction to change that to "and/or," because that's the way it works
in the ordinance.
So it's just a minor cleanup item.
So any questions about that one?
Great.
Okay.
So it seems like we're good.
Nobody has any concerns about making that adjustment.
In a potential -- I guess the idea here is we'll go through these adjustments at the
end.
There's a packet of -- these are changes that we propose or that the board is recommending,
and then we'll take that kind of packet to city council.
So as long as everybody's fine with this change, then we won't have to revisit it, but it will
be in that packet that we take to city council.
So okay.
This one's good.
So moving on to item B in that same section in the ethics ordinance, 2-279 complaints.
This is to -- we had had a discussion where we were going to require complainants to specify
which section in the ethics ordinance, which prohibition they believe was violated as part
of the checklist that we added to the complaint form.
So this change is in section 2-279 under C, contents number five, it says -- it originally
said the nature of the alleged violation, including whenever possible the specific provision
of this article alleged to have been violated, so taking out that whenever possible basically
to make clear that the ethics form as it now is written requires them to check a box.
And I guess I'll jump in.
I think everybody probably remembers, but in case they don't, and for our new member.
So I think we've had times before where somebody files a complaint and we don't really know
what they're trying to say.
So this was so that they put down a provision that they want, but then the next thing that
Madison is going to go over allows us as a board to look at the facts and we kind of,
you know, know the ethics ordinance better, and we can -- if we see that it fits a different
section, we have the ability to still move forward with the complaint if we see that
it falls under a specific section that maybe is not what they put down, if that makes sense.
So go ahead with C, Madison.
Do you want me to go ahead with C or get feedback on B?
Oh, yeah.
Feedback on B sounds good, if there is any.
Does anybody have any comments or questions about B?
No, but we're just deleting whenever possible.
Is that correct?
That's correct.
All right.
Okay.
Then moving on to C, we're now in the rules of procedure under D, preliminary assessments.
So this change, if you're in your backup, it's like the -- I guess it's in the first
sentence, but after the semicolon, it basically added however the panel may consider whether
the actions alleged within the contents of the complaint are a violation of any provision
of the ethics ordinance, regardless of a provision specified by the complainant.
So that kind of goes along with what Laura was just saying about -- we added that section
into the ethics complaint form that requires them to specify what provision they believe
was violated, but this allows -- is supposed to allow the ethics board to, if they think
that the complainant said, you know, check the wrong box to continue on with the ethics
complaint under that provision that they believe is applicable.
So any questions, feedback on that, or on the language or anything like that?
My question is, when they state an allegation, all we're saying here is if it doesn't match
one of the places that we are, we can put it in any way.
I don't understand this, why it's coming up.
Well, I think it was the last -- maybe it was the last preliminary hearing we had.
It might have been the one before where they -- I think they specified one section, but
we thought it might fall under another section, and in that case, we didn't really think it
fell under either section.
But from my -- what I remember from our discussions on that is just if, say, somebody files an
ethics complaint and says it violates, you know, section A, but us knowing the ethics
ordinance much better say, oh, this clearly violates section B, we're not, you know -- we're
not restricted to just A. We can look at the facts and know it's B. We kind of -- I guess
the Ethics Board has that ability, so we don't have to say, oh, well, it doesn't fall under
A, so not an ethics violation when we know it falls under B. If -- I don't know if that
explained it -- Enough that I'm going to vote no on that.
Okay.
I guess -- I think on the -- let's see, on the first two, I think we were all in agreement.
I guess what are -- what is everybody else's thoughts on allowing us to -- allowing us
to take a complaint and if it violates a different provision than what's in the actual complaint
going forward?
I would say -- I would say that an ethics complaint that clearly falls under a certain
section should not be dead in the water just because the complaintant did not know the
ethics code well enough to reference the right -- the correct section.
Yeah, and I tend to agree. I mean, there might be times where they give us facts and we can't
tell what it's under, but I think this might be a situation where we can obviously tell
it's under another section. You know, it just gives -- I think it just gives the board flexibility
given -- like given a fact pattern.
Yes.
And I -- so I think me and Annette and Andrea are on board and so far Dawn is against. What
are -- what are the other thoughts from the rest of the board?
I think it serves the citizens better to do it the way you're describing and I think that's
our job to try to serve the citizens.
I think it should be corrected even before it comes to the board because when they turn
in the complaint, the complaint is examined and if it -- if it isn't complete, it's referred
back to them and telling them how they can complete it if possible. But I don't think
we should have the latitude just to plug in whatever we want to plug in.
Well, I think it would be considered at least administratively complete if they had checked
a box that indicated which provision of the ordinance -- like many people just check conflict
of interest even though there are several prohibitions in there including like gifts
or abusive position or things like that. So I think if they had checked a box, from my
perspective it would be administratively complete. It's not within my authority to say, well,
you're wrong. You've checked the wrong box and then send it back to them because I'm
not supposed to be interpreting the ethics code in that manner.
So I mean, I think we could -- you could then take it to a preliminary assessment. You could
tell them -- I mean, from there -- from me, it goes to the preliminary assessment with
the panel and then usually at that point, I think that's when somebody says, well, they
checked this box, but it really kind of seems like it falls under this box and that's how
we would move forward with it. But I mean, I think -- and then whatever the preliminary
assessment panel said would be communicated to the rest of the board if we made it to
a hearing. Yes, Annetta?
An ethics code is supposed to be aspirational, which is different from the rule of law. And
so when a code is written like the rule of law, it's going to be difficult for citizens
to interpret. So I do think having that flexibility would be in everyone's best interest.
Other thoughts on that? Dustin and Sharla, do either of you have thoughts on this section?
I don't have any problem with adding this in. This is in the preliminary assessment
portion of the process, so it's not -- I don't think our goal here is to make this so complicated
and rigorous for submission of complaints that those are going to get tossed out because
the wrong box was checked on the form or the wrong section was identified. I mean, I think
that's going to degrade the confidence of the entire process for the citizens that are trying
to use this for the purpose that it was written. Yeah, I agree.
I do too. Okay. So I guess if we come to a vote, maybe
we can just keep that one apart if we vote whether to keep these in the packet.
I think we're not necessarily -- it seems like in general I think we could just take
direction on these to include them in a packet. I don't know that we have to have a clear
vote unless you would like that for the record. Well, I mean, I think it's shown -- I think
Dawn's against it, but I think everybody else is for it. So I think we'll just go forward
with that. We can certainly note that the direction
was for AB, whatever, seven, zero, gave direction for it, and for C, six, one, or basically
something like that. Okay. Well, I guess I think the majority does
want to include C. So I mean, in the end it will, and we can just maybe go forward with
D and see if there's more discussion on more of these items.
And I guess -- well, and actually since we have a new member on the board, so D came
out of that same preliminary hearing I mentioned earlier where in the complaint the complainant
had put a link to a video, and the current ethics code kind of says you're supposed to
just look at what's on the complaint. So we kind of struggled with, well, there's
a link to a video on the complaint. Can we look at that link to a video?
So that's where D came from, and I'll let you discuss it.
Yeah. So like Laura said, it came kind of from that situation, and the board discussed
it at a previous meeting, and the direction, as I understood it, was anything that was
submitted with the complaint, including linked videos or things, should be able to be reviewed
by the preliminary assessment panel as part of their preliminary assessment to determine
if the complaint was actually a violation on its face, right, before we look at any
-- before we necessarily look at the facts and determine if they're true, if we assume
they're all facts, then the complaint on its face can move forward to a hearing because
it is a violation. So basically it added to that kind of same
section in the rules of procedure under basis in preliminary assessments that panel's review
is limited to the contents of the complaint, whereas the contents of the complaint include
all additional documents, hyperlinks, video, and audio submitted along with the original
ethics complaint form. So that's the language kind of as of the whereas that was -- I added
trying to capture that direction that I received from the board at that time.
>> All right. Is there any discussion on adding that clause that we can use hyperlinks, video,
and audio submitted along with the complaint? Okay. I'm not seeing anybody jumping up. So
I think we're -- I think that's what we all agreed on last time, or at least the majority
agreed on. So we'll go on to 1E. Okay. And then so E, this came out of -- when
I was going back to rewatch all the meetings to try to figure out, well, where are all
the minor adjustments that need to be made, I noted at a meeting previously that the timeline
for when a complaint hearing must be held was never actually -- was not actually in
the ordinance. It wasn't specified there. It was only really specified in the ethics
training that all city officials are required to take. So this is just to correct that.
This is really staff motivated just so that it's clear in the ordinance how long the timeline
is. So if you don't want to include it there, we don't have to. But that is why it was
at -- that's why I proposed it as part of this section, basically.
And I mean, if that falls along with, like, the timelines that we've gone over at previous
meetings, like, I don't have a problem with that. Does anybody else have any ideas or
thoughts on that? I think it's just kind of clerical. Like, that already is the timeline
it just -- that we were working on. It's just now going to be added to the ordinance. Okay.
And then so I think section -- so number two on this agenda item is about the frivolity
and whether a respondent can request it be submitted for frivolity. I'm going to skip
that because I think three is going to be a lot easier and I think two is going to be
a lot more discussion. So let's skip to three on the agenda information
sheet for this agenda item and go -- and I guess -- I guess I'll let you go over it again.
I think that's another -- yeah, I think that's another thing that you added, Madison.
Yes. Yeah. So this is -- we received direction at the previous meeting in May from one of
the discussions we had to basically prohibit any board member who had submitted an ethics
complaint against a city official from participating on a preliminary assessment for that same
board member in the future. So I added language to the ordinance per the board's direction
to the ordinance and to the rules of procedure trying to reflect that prohibition.
So let me see what -- in the ordinance, it's under section 2-279(b), assignment of panels,
and the new language just notes board members who have previously submitted an ethics complaint
against the respondent in a preliminary assessment shall not be assigned to the panel.
Okay. And I think we all agreed to that, but I kind of had a thought when I was preparing
for the meeting today. And I mean, I would hope that this wouldn't happen, but what if
you had a majority of board of ethics members who have complained about a city councilperson
or department head. And that's -- I don't know if that's like kind of too far-fetched
because we're probably in a bad place as a city if the majority of us have complained
about someone, but I'm wondering if we should put in language -- you know, there's language
in the conflict of interest that if the majority of council kind of has the same conflict,
everybody can vote. And I forget the exact wording, but I'm wondering if we should put
some kind of wording there or if we think that's just kind of too far-fetched to be
a problem ever. Does anybody have any thoughts about that?
I think that's a good thing to add. It would just make it more clear. I mean, and I hope
it never happens. Maybe -- unless anybody objects to it, maybe
you could take the same language that's in the conflict of interest and kind of add it
into that section just so we're covered in case that were to happen. And when we come
back at the next meeting, that can be something we discuss if we like it or not, if that sounds
like a plan. If anybody objects to that or has other ideas?
I do have a quick question. On our advisory opinion, in the past we've had a council member
violate the advisory opinion we gave. That's where we would have at least three people
that were against the particular individual that violated the advisory opinion. Would
that affect this? I think -- so I think what we discussed is
just if you filed the complaint, I don't think that if you're on the advisory -- if you're
on the advisory hearing, the three people that do the advisory panel, I guess, I don't
think that you should necessarily be -- I don't think you can't be on the preliminary
panel if they violate that advisory panel. Because I don't know, unless anybody disagrees,
I don't think it would fall under this and I don't think we should necessarily have that
in the ordinance. I think it's kind of separate because you're not really -- it's not like
you in direct conflict with that person. You gave an advisory opinion. Maybe they didn't
follow it. But it doesn't seem as kind of adversary as you complained against them should
you really be deciding whether another complaint against them is valid. But I'm open to what
everybody else thinks. Yeah, I don't know. I just put it out, you
know, what do we do then? Yeah, it sounds like if we did that, we would
be more likely to run into a situation where there would be no board members left to sit
on the panel if a second complaint was entered. Yeah, that's a good point.
I would just add, I think the way it's currently written, it would only -- the advice I would
give to any chair who was assigning a preliminary assessment would be it's only about who has
submitted ethics complaints against a city official and not -- and it wouldn't really
matter what had happened with advisory opinions would be -- but obviously at that point the
chair really has discretion to do what they would like unless there's a prohibition against
it in the ordinance or the rules of procedure. I don't know if anybody feels strongly about
adding something like that. If now I would say speak now, otherwise we can kind of keep
it as is which would be you can sit on a panel of someone that violates the advisory opinion
that you are on the panel for. All right. Okay. So I think -- so what I'm hearing is
we're going to maybe rework the language on three. One -- or let's see, one, A, B, D and
E, it sounds like we're unanimous. And then on C, there's one person that disagrees but
the other six appear to agree. So I would think that one -- all of one we would give
direction that we would want that to be in a board packet to send to city council. And
three we'll rework and then we can get to two which I think will be more of a discussion
here and less of us just talking about what we've already discussed in the past at meetings.
So should the respondent be able to -- two is should the respondent be able to request
the board consider if a submitted ethics complaint is frivolous? And Madison did some work at
looking at other cities so I guess I'll turn it over to her again to talk about the research
she did for us and then we can come back to a discussion.
Okay. So I used kind of that same group that we had talked about last time although I did
remove those municipalities that didn't have any ordinances and kind of there were two
different ways that I kind of found that came at it. The first being that there were two
cities who even had a process to consider if a submitted complaint was frivolous, obviously
apart from Denton because we have one as well. And those cities were San Antonio and Dallas
and they both used what they called an order to show cause process which essentially the
board has done an assessment and thinks that the complaint might be frivolous and orders
the complainant to say why is this not frivolous and then they are required to submit a written
response. They both have slightly different processes for that -- processes for that which
is why I included their ordinances. And then Dallas' process allows the respondent
to submit basically a sworn response as part of that process that I guess would basically
be like this is why it is frivolous. So that's one way that I looked at it, looking at all
the other ordinances and then the other was at what point in the ethics complaint process
of other cities is the respondent allowed to basically present their case.
So there were three cities, San Antonio, Dallas and Richardson that allowed the respondent
to submit a written response as soon as the ethics complaint was given back to them. So
the complainant comes, they submit their ethics complaint. It's determined that it's administratively
complete. It would be then sent to the respondent who would then have a certain period of time
to send back a response to the complaint. So there were three cities that had that kind
of a process. Four cities allowed the respondent to present a response basically at the hearing.
So that's kind of like what we do in Denton. The respondent can come and they can present
their case and they can have evidence that they present as part of that process. And
then the remaining three didn't have a process at all basically for the respondent or sorry,
the remaining two didn't have a clear process for the respondent to even respond to the
ethics complaint. So I hope that was a lot of information. It is all in your kind of
under that number two in the AIS, but that was a quick rundown and I can answer any questions
about as well as I can about the other cities ordinances.
Okay. So and she provided Dallas and San Antonio. Hopefully everybody kind of looked over those.
I have a couple thoughts about the respondent being able to ask for if it's frivolous. My
first thought is, is every respondent just going to tell us this is frivolous because
they don't think they violate it, so they think it's frivolous. So that's my first thought.
And then my second thought is how we go about this. It's like how much do we want to let
the respondent be able to bring forth to show it's frivolous and when does it become you're
having the hearing at the preliminary hearing if you're letting the respondent send a bunch
of evidence. And I think kind of the way this is set up is for not to have to get the whole
board together and have a hearing right away. That's why we have the preliminary hearing
to kind of decide should this be a full-blown hearing. And if both sides can submit evidence
at the preliminary hearing, it's kind of like, well, you know, is there really at that point
are we just like having the preliminary hearing for no reason because it's also a hearing.
But I'm not sure. I'm not sure how we should go about this. So I want to hear what everybody
has to say.
I would really be interested in hearing a little bit more about San Antonio and Dallas's
order to show cause. I would think that's fairly complicated, but I know San Antonio's
ethical code is very admired and it came out of some very awful things, but I don't think
everybody would be doing that. So I think that's an interesting thing to explore.
So the order to show cause, the way that that's initiated, I would think it was kind of to
compare it to our processes. At the preliminary assessment, if the panel was like, this appears
to be frivolous, they would then have an order to show cause and they would say that would
be their determination from the panel to say to the complainant, you have to write us back
telling us why this isn't frivolous basically. So just to clarify, that's, yeah.
And I printed them both off, but I don't remember. Is that Dallas or San Antonio's? So in Dallas's,
they have an order to show cause and they premise it on the preliminary panel has to
unanimously dismiss the complaint, which I think is a good thing to have. That way that
it has to be all three people on that panel that think that this should go forward to
be frivolous if you make them show cause. Actually, now that I think about it, is it
two thirds to be frivolous in our ordinance? Let me go back. I have it right in front of
me. It's two thirds of the hearing. Okay. So I think if we, the way it currently works
in Denton, the panel can recommend that the preliminary assessment panel can recommend
that a hearing be held to determine if the complaint is frivolous. And then at that hearing,
if two thirds vote that the complaint is frivolous, there can be sanctions I believe per our ordinance.
But I think what we discussed talking about is a little bit different than the order to
show cause because we had talked about whether the respondent should be able to request for
the preliminary hearing. I guess if there is an actual hearing, the respondent will
be there and they could say that this is frivolous, but the preliminary hearing, no one can be
there. It's just three board members. Could the respondent send something in to say y'all
should consider this frivolous? I mean, I was thinking like they could do like a sworn
affidavit or something like that. So that way it's not just, they can type up an email.
They actually actually do some work like to get it sworn by somebody. Like I, we, I truly
believe it's frivolous for whatever reason. But again, that's, I don't know if that's
the way we want to set this up or if it's just, we should just leave it up to the panel
to determine. I like the idea of the, of the respondent being able to send something in
writing because it gives more information and anything that gives more information I
think helps the panel. What do others think about that? I like the respondent being able
to say that. I also really liked the idea of the preliminary thing being unanimous and
saying that it's frivolous. I think those are both good things. I guess I can't figure
out whether or not it's important for the respondent to identify that. Yeah, I, I can,
I'm kind of torn on that too. Cause like I said, every respondent every time is going
to think it's frivolous, right? They're, they're going to say it's frivolous. So do we need
them to come tell us it's frivolous? Because if, if we do ask them to tell it's frivolous,
it's almost better for them to tell us how, but then are we, are you know, the right now,
the way it's set up is you just have the complaint and you're not, the panel sort of isn't like
it's just based on what the complainant is sending. And there, and I can see how that
would be a good thing because you're not kind of swayed by say a city council member that,
you know, appointed one of us that's sending you a letter saying that this isn't true.
But then again, I mean, if somebody is somebody on city council is being like slandered with
a complaint that isn't true, it's good for them to be able to tell their story. So I'm
not really, I don't know what to do on that. So I'm hopefully somebody has a really good
idea. If I look through the flow chart that we spent some time reviewing, there is a block
on there for the preliminary assessment panel to consider whether or not the complainants
is frivolous. So it's sort of already built into the process without there being a request
for that by the respondent. And it's, it would not be the way it's written now, it's not
up to the preliminary assessment panel to determine if the complaint is frivolous. They
would recommend an evidentiary hearing to determine that. So it's not really, I mean,
I understand the idea of changing that so that it has to be a unanimous recommendation
from the preliminary assessment panel to have a hearing to determine if it is frivolous.
But the way it's written now, it's not the preliminary assessment panel that makes that
determination. Does that make sense? I mean, I think the way it's written now, all this
would be doing would be creating another step in the process that would be the respondent
either turning in some affidavit or whatever, however we would write that process. They
would be turning in an affidavit to ask us to do something we're already doing as part
of the existing process. Yeah, I think that's a good point. It is kind of adding, we'd have
to redo all the work that Madison did on those flow charts. Yeah. I mean, if it makes sense
to do that, then I think that we do it. But I guess what I'm trying to describe is that
the way the process is drawn up now, we already consider that in the preliminary assessment
without a request to do that by the respondent. Yeah. Okay. I think I saw Annetta and Andrea.
So Annetta? I think maybe the time for the respondent to request that it be considered
frivolous would be after the hearing has been held. Because I would think that if that consequence
was there for people who want to file things, maybe for political reasons, they would have
to know they're taking a risk that they could be called frivolous. But I think that's a
separate issue from whatever the board needs to look at with a complaint and then the time
to call it that would be after the fact. Right. I don't know if that's possible, but...
And then Andrea, did you have, I think I saw your hand. Yes. I would just like to, just
clarifying my understanding as a new member here and still learning. So if I understand
Dustin correctly, there would be a three member panel that will decide whether a complaint
is frivolous or not. And if they say, yes, it needs to be considered frivolous or it
should be explored, if this is a frivolous complaint, then it goes to an actual hearing
where there is actually evidence provided and the full board will consider whether it
is frivolous or not. So at the preliminary hearing, you decide whether it's actionable
or baseless. If it's actionable, it goes forward to a hearing on the complaint. And then if
it's dismissed at the hearing, I think they can also like determine if it's frivolous.
Is that correct? Yes. So at the preliminary assessment, the panel can recommend that there
be a hearing to determine if the complaint is frivolous. Well, I guess like if it's baseless,
they can say there needs to be a hearing that it's frivolous. If it's actionable, it goes
for an actual hearing. And there's a mechanism after that hearing that it can also be found
frivolous, even though the panel... Yeah. At the hearing, if a complaint moved forward
to a hearing, because it was actionable, after hearing both sides' argument during the hearing,
the board could then vote that it was frivolous is my understanding, if they believe that
to be true. So circling... Oh, go ahead. So because I was looking, just going through
the training, the online training. So at that point, if something is... If at that point,
a complaint is considered frivolous, then there is a question if it's slanderous or
not as well, and then there's actionability on that claim, correct? There's no... We do
as an ethics board, all we can do is tell them that it could be a civil action, but
that's not doing it, or it could be a criminal action if it's perjury. But we don't know
anything from this board. Right. So the board could rule it was frivolous. I believe there
are some sanctions laid out in the ordinance, like the board can write a letter of reprimand
perhaps to the complainant who submitted what had then been decided to be frivolous. There
are potential civil or actual legal penalties, but that's not something that the board would
pursue. Those outside of the board. Yes. Okay. However, the determination, if a complaint
is frivolous, there is already a process in place to have a hearing where a respondent
would have an opportunity to provide evidence, correct? Yes, that's correct. On that basis,
I kind of agree with Dustin where I would say if we are accepting any kind of statement
from a respondent during the three-member panel. There's no testimony from either the
respondent or the complainant during that panel. It's only the written word that we're
reviewing. Right. Okay. So the written statement. But again, there is a duplication of the process,
isn't it? If there's a written statement about this is a frivolous, and then it moves forward
to a hearing and then there would be additional or the same statement about why it is frivolous.
I guess the only situation that would not be covered is if the three-member panel found
that it's a baseless complaint, meaning it doesn't go to a full hearing. At that point,
they can call it frivolous and go to a hearing, but if they don't call it frivolous, it just
ends there. So right now, it's just up to the board to decide based on the complaint.
And that's why this came up. We had a complaint that -- I wasn't on the panel. I don't remember
everything about it, but it went forward and it was like obviously -- I guess it went to
a full panel, too, and an appeal. But anyway, it was obviously not an actionable complaint,
and everyone agreed on that. And I think it came up that should the respondent be able
to -- when something's obviously not actionable, should they be able to say, y'all should look
at this for being frivolous? And so that's the question we're at today, and that's what's
on our agenda. And we've kind of talked about some other things, but does anybody have a
strong opinion where we should be able to have the respondent somehow communicate with
the board that they think that it's frivolous before the preliminary hearing? Because after
the preliminary hearing, if it goes to a hearing, they'll have a chance. If it doesn't go to
a hearing, they'll probably never have a chance. It'll just be up to the board to decide.
I think the respondent should absolutely have that opportunity.
I think I'm with Anneta here, because it is such a narrow, narrow decision, right? I mean,
in most cases. But I guess the respondent should have an opportunity, if it's just a
written statement that would be taken into consideration. I don't think there's any harm
in allowing that.
So it's currently 3.45, and I'll be honest, this was on my calendar for 10, because our
first e-mail said 10 and then it was 3. So I actually have something to do at 4, and
then because of the half Zoom, half not Zoom, the person chairing the meeting has to be
here at City Council, and I'm the only one here. I'm wondering how long and if it would
be worth deciding this today, or if we should maybe give more direction of how we would
want to take that. Unless we have, I mean, I feel like I think Dustin's kind of on the
side of this kind of, there's already a chance for the frivolity to be considered. We don't
necessarily need an extra affidavit or information to the preliminary board. I think Anneta and
Andrea are more on the side of let's have the respondent be able to respond. I'm not
hearing like really strong opinions from anyone else. So I don't know if we have a consensus
today, Dustin?
Yeah, just I think one thing that's already written in here is that if the three-member
panel is going to consider whether or not a complaint is frivolous, they can consider
information not concurrently submitted as part of the complaint. So I think that provision
is already there, that it's allowed. It's just a matter of is that evidence coming from
the respondent or not, which if we're already going to allow that, and it seems like that
would be the only place for that evidence to come from for the three-member panel to
consider.
Okay, so you're looking at, I think, page 6 of the Rules of Procedure, I think, D7.
No extraneous information may be considered unless the panel wishes to review the information
as part of a consideration of the accuracy of the stand made in the complaint in conjunction
with the making of a recommendation that a hearing be first held on accepted complaint
to determine if it may be frivolous. So I mean, yeah, I think that kind of does open
it up that you could consider more, and we hadn't really talked about that section yet.
I'll just add the ordinance prohibits ex parte communication. So the respondent currently
is not allowed to send any additional extraneous information to the board or otherwise, I mean,
that's considered a violation of the ordinance, even if the panel wanted to consider it. That's
not really allowed currently.
So I guess as the board, do y'all want to revisit this next time or do y'all want to
keep discussing and have me hand it off to Sharla?
Could we kind of see where everybody sits on it?
Yeah, okay. Don, do you have an opinion of whether we let the respondent request that
the preliminary panel decide if a complaint is frivolous?
No, I don't think I think where we probably erred is that he opened it up where it wasn't
kept confidential to start off with. Where we've opened it up, where we informed a respondent,
which, you know, that took the confidentiality out of it. And I think that's where we made
our first mistake on this.
Okay. And I think, so, and I think Dustin is, I think he's shared that he doesn't think
we should do that. I think Annetta does think the respondent should be able to respond.
Patricia?
I have a question. So there is a chance for the respondent to give information about why
they think the complaint is.
Right now, no, there's not.
Do you want them to say anything?
Well, at the hearing.
The complainant.
All right, so I'm actually, I don't think there's going to be time to go through everybody
because I need to go. So I guess we need to decide, do you want me to hand it off to Sharla
or do y'all want to just come back to this next meeting?
Again as a new member, I would like additional time to actually look at those provisions
and familiarize myself with it.
As in end the meeting and look at it more?
Yes, let's, and I see Sharla shaking her head and that's who I'd have to send it off to.
So why don't we, why don't we revisit this next meeting and next meeting we can all be
on Zoom and I think it's going to, I'll have a little less, I'll be a little less frazzled
because I'll have my computer in front of me and can share screen. And so, so we'll
do that next meeting. We'll revisit this again. If people have thoughts, there's not a lot
of, I don't have a lot of time left. So if you have thoughts of things to research, maybe
like email Madison, there's also the model code that you can see if there's anything
about it in there, Madison. And if people have other thoughts of what they want her
to research, then send that to her. And so then, and then we'll also look at what's next
in, well, and actually we'll move on to agenda item C. So as far as receiving a report, hold
a session and give staff direction regarding future meeting topics. We'll revisit number
three, the language like we talked about. We'll revisit the considering things frivolous
and let her know. And then we can just, maybe me and Madison can look at what the agenda
looks like. I think frivolous might take a while, but we can see if there's anything
else on our previous list of topics that we could also fit in there. And I wanted to let
everybody know that, so my term ends August 30th and it's my third consecutive term. So
I'm going to have to leave everyone. You can't serve more than three terms in a row. So you
all have to think about, I'll only be here for two more months. I just want to let everybody
know that. Well, I guess I might be longer if they don't replace me, but I might only
be here two more months. I wanted to let everybody know that before I left. Anything else, Madison?
No, I was just going to say if you do have direct, Oh, go ahead, Don. Can we keep our
meetings in the afternoon? We'll do our best. We're still trying to work around issues with
the, there are other boards that, that have meetings on the last Thursday of the month.
So we're, we have a schedule written out and we're trying to make sure that they're in
the afternoons, but sometimes it doesn't work that way. It doesn't work out. And then I
just wanted to say, yes, if you have anything else you would like, any other additional
information, I can look at the model code you would like on this topic. Just let me
know and I can try to include it. Okay. All right. Sorry that I'm ending things. Like
I said, I had it in my calendar wrong and I think next meeting will be better because
we can, next meeting everyone can be on zoom. And then after September, I think everybody
might have to be in person again. The rules have been changing, changing, I think, or
not always explained well. That's why I'm here in person and city council and everybody's
at home and it's not, I don't know, not as easy to navigate. I don't think, cause I don't
have as much control with my screen or anything, but all right. So we'll plan that and we'll
get out an agenda and hopefully the afternoon last Thursday in July will be our next meeting.
Anything else from anyone? All right. Thank you for your time. I think we didn't really,
we came to some conclusions and we realized frivolous will be a lot more discussions and
thank you for coming today. Meetings adjourned, I guess. Thanks. 354, it's adjourned, I guess.