[SIDE CONVERSATION]
Hey, Joe, before we start, I'd like
to make a special commendation to Dr. Ramsey
on a especially thoughtful article that she did.
Hear, hear.
We can go Sunday in the paper on Quaker Town.
It's really very, very well done.
Yeah.
[SIDE CONVERSATION]
She's right here.
And that is you're probably going to be in our top five
most read, I guess.
Oh, wow.
Thank you.
I'm going to lose my job.
[LAUGHTER]
Well, see, you've got to find those really sad, sad stories
.
That was a sad one.
Thank you.
You're welcome.
It was.
Thank you.
You're welcome.
Thank you.
I've saved you, Joe.
Hey, what's your name?
Peggy, your job's saying.
My God, my cookies.
Is he saying what he's saying?
[SIDE CONVERSATION]
OK.
[SIDE CONVERSATION]
Good evening.
Thank you all for coming.
This is the March 1st Charter Review Committee meeting.
And we're going to be recording tonight.
So for all times, please don't cross talk,
because they're not going to be able to catch you.
If you get into a presentation in the Q&A,
be patient.
We'll have time for everyone to have questions.
OK.
Our first item on the agenda is public comment.
Anybody who's in the public here that wishes to speak?
No one?
Not even Peggy.
No.
OK.
So our next item is housekeeping.
We need a motion to approve the minutes from February 15.
[SIDE CONVERSATION]
Second.
All in favor?
All right.
OK.
Number three.
We have a distinguished guest.
We're going to spend whatever time it takes
for an outside resource to cover ethics.
I'm going to let Dr. Alexander make the introduction,
please.
[SIDE CONVERSATION]
Well, the first thing I want to say
is I was a little skeptical two weeks ago
that we'd be able to pull this off and get an expert in to
be
with us tonight.
Joe was insistent that we could do it.
And with a lot of help from staff,
we've been able to do that as a committee.
We met within about five days or so after the last meeting.
We reviewed materials submitted by some applicants
for the position.
We reached a unanimous agreement that we had an excellent
choice
and the gentleman who will be speaking in a moment,
he represents some really significant experience
in the field of municipal law, especially as it relates to
ethics.
I particularly like the fact that his academic background
is not only a law degree, but it also included,
along with that law degree, a master's in public
administration.
And I really think that part of what he's helping us with
is a combination of those two things.
That's, by the way, a law degree and a master's degree
in public administration from Texas Tech.
So it's with great pleasure that I present to you
Mr. Alan Bokhorson.
Come on up to the microphone, Alan.
Again, a special thanks to you and for the record,
the other two fellows on your panel,
David Zoltman and Billy Cheek.
Thank you for the quick action in getting this done.
Thanks for the staff that made that possible.
It worked out well.
Appreciate that. Thank you.
I'm Alan Borquez and I've got some prepared materials
that we'll go through and then we'll open it up
to some question and answer period.
The prepared materials are designed to provide you
with the basics, an overview of state law ethics.
To the extent you can legislate ethics
and put those rules in a statute,
I've gathered those that the state of Texas has compiled
that are most commonly brought up in the municipal context.
And we'll run through those to try to give you
a working understanding of those laws,
but also to try to dispel some of the misrepresentations
or misunderstandings about what they may or may not do.
And then we'll transition in the topic of ethics,
ethics ordinances, your charter,
and what this committee would like to recommend
to the council in terms of what to do with the charter.
So I'll go through the prepared materials.
You have your handouts if you want to take notes.
We also have the basic slides
to provide us with some structure and some organization.
But certainly if you've got a question regarding a slide,
feel free to stop and we can discuss that a little bit.
Does that sound all right?
Okay, we'll proceed.
We start with the charge,
what the city council actually instructed
this charter review committee to do.
You were not charged specifically by the Denton city
council
to write an ethics ordinance
or to write an ethics provision for the charter,
but to evaluate what you think needs to be done
with the ethics provisions in your charter.
And I know that that charge has led to a lot of
possibilities,
and we'll actually discuss what some of the possibilities
are
when we get toward the end.
But looking at what the council has asked us to do
will begin from there.
Looking at the charter, the first provisions, 14.05,
is basically a nepotism provision.
And it looks very similar to 572, the provision in state
law,
in terms of a prohibition on the hiring of relatives
within certain degrees,
certain degrees by blood or by marriage or adoption.
One aspect that the charter provision in Denton provides
is that it actually applies it to department heads,
as well as to the city council.
Because under state law, if a city's home rule charter
delegates hiring and firing authority to the city manager,
then the state law nepotism rule does not apply.
Your charter goes a little bit beyond state law in that
regard
and applies it to department heads
regarding employees being hired for that department.
Much like state law, it also has an exemption
for pre-existing personnel, those employees that were there
before someone got elected to council
or before that department head was named.
The second provision in your charter that's at issue
that you've been asked to evaluate is one entitled
personal interest.
It may otherwise be named a conflict of interest,
which is the title that we give the state law.
And it applies to a member of a board or a commission,
which is clearly going to include the city council,
it's going to include P&Z,
and other such boards and commissions.
It defines a substantial interest in the way it's defined
in state statute.
And that definition is tied to money.
Do you get income?
Do you own stock?
Do you own real estate?
And then it goes on to say you must comply with 171.
What does that mean?
It means you must abstain from voting under your charter
and file an affidavit.
So the affidavit is a public declaration of this interest.
It's a document that's filed with the city secretary's
office
and thus is available to anybody who requests it
under the Open Records Act.
But an interesting twist, yours actually says voting.
If you read state statute, which we'll get to it later on,
it talks about participation.
And participation is broader than voting.
It includes discussions, deliberations.
And so if we were to enforce that,
because of the references to 171,
I would take the broader interpretation of 171.
But that's just a couple of nuance points about your
charter.
So those are things you've been asked to look at.
Are they enough?
Are they too much?
Do we need them?
Do we need something else?
That's the point of today's meeting and the meetings
you all have had to discuss it previously.
Before we get into that, let's take a look at state law.
The first one that, you know, again, you may decide
whether you think this fits under the umbrella of ethics,
but it often is mentioned in these types of training
sessions
and in regulations.
One is resigned to run.
The notion that's reflected in the Constitution of the
state
that says by accepting a second position,
you automatically forfeit your first position.
Now what does that mean?
Well, it looks only at public offices of emolument.
What does that mean?
Well, to be a public office, you have to exercise
a sovereign function of government.
You're not just stamping, filing, processing.
You're exercising some discretion in your position.
And the second part is you get paid.
So even if it's a public office, clearly a city council
member
would be a public office.
But if they're not getting paid, this whole rule does not
apply.
And there's lots of exceptions, like so many provisions
in our state constitution.
There's the rule, and then there's page after page
after page after page of exceptions to the exceptions
to the exceptions of the rule.
Next is incompatibility.
And this one is not actually statutory.
It's common law.
So this is something where a judge will decide it on a case
by case basis.
It depends on the facts.
There are many, many attorney general opinions on this.
And what incompatibility is, it essentially is saying
either
you can't be your own boss.
That would be incompatible.
So if you were to have a city manager opening in city of
Denton, which you don't now, but if you were, you couldn't
appoint a city council member to be the city manager.
They couldn't both be city manager and be on the city
council
because they'd be their own boss.
You get that?
So that's incompatibility.
And yes, because I do represent so many smaller cities
as city attorney, that comes up a lot.
They want to get paid, but they don't want to give up their
city council position.
They want both.
That's an example of a case when you can't do it.
The more complicated versions of incompatibility is the
notion
that no one can serve two masters at the same time.
So can you be superintendent of Denton Independent School
District and be on the city council?
No.
It's not because city councils and school board trustees
are
always fighting.
Sometimes they do.
Sometimes they get along really well, and they're always
contracting with each other, co-sponsoring programs.
We'll own the swimming pool, but you operate the swimming
pool.
They're very, very intertwined oftentimes, so you could not
be
a superintendent at the school and be on the city council.
But you can be a school teacher with the school district
and
be on the city council.
You couldn't be chief of a volunteer fire department and
sit on the city council.
But you can be assistant chief or treasurer.
How do I know?
Because some attorney general has written that opinion, and
they give lots of advisory opinions in that regard.
So a conflict of duties, a conflict of loyalties, you know
it when you see it, you know it when you smell it.
That's what this entire body of incompatibility is about.
It gets really, really intricate with some positions.
I'm using common examples.
But can you be emergency services director for a county
when some of the money that you spend, your salary
supported
by city contracts and also by city taxpayers, and then also
be named to the city council?
So emergency services district manager for that county, but
also on a city in that county.
Well, there's no AG opinion on that one.
And so it's a case-by-case analysis.
And of course, the risk is if you go to trial and you're
found
to have an incompatibility, it's kind of like resigned to
run
by accepting that second position, you're booted out of
the first one.
And if the one you're booted out of is your paying position
,
then that can be a little bit hard.
So I'm always having to counsel folks, get your own lawyer,
and have your own lawyer on letterhead give you their
opinion on whether or not you can serve in these two
different
positions at the same time for risk of violating the
incompatibility rule.
Public disclosures, this is one we see with increasing
amount
in Austin at the legislature.
The last couple of sessions, the legislature has shown an
increasing interest in causing cities, city officials,
other
local governments to disclose more information, more
paperwork
regarding your own dealings.
If a vendor comes in and wants a contract, they have to
disclose along with their proposal whether or not that
they have any business relationships with the city
council or family relationships with the city council.
If you have contracts over certain sizes, now the city and
the vendors have to submit information.
More and more of those disclosure forms are being
required, and this is just a few of them.
There's bills filed this current session pending, and
whether they go anywhere or not, it's too early to say.
They require even more disclosures of more -- I guess the
notion is if we disclose all this information, it gets put
up
on the websites either at a state agency like the Texas
Ethics Commission or the city secretary posted here at city
hall on our website, voters will have access to it, then
they can judge us more thoroughly based on our
relationships, our money, and those sorts of things.
There's really no penalty if you fail to turn in these
things.
They have to give you a warning and give you a chance to go
and fill it in after the fact and get them submitted.
So this again, more ethics being viewed as more
transparency.
Then you kind of transition to the penal code, which is not
the only set of criminal statutes we have in Texas.
The law is spread all over the place, but for sure the
penal
code is an obvious place to go look, and whether you view
this
as ethics or not, it gets swept under that ethics umbrella.
The first one is good old fashioned bribery.
I like a quote from a former unnamed San Antonio city
official where he said in the San Antonio newspaper, if we
're
getting elected just to look good, I don't want to be here.
And you don't have to worry about him because he's not
there
because he went to jail for bribery.
A lot of city council members in San Antonio went to jail
for
bribery, and they were bribed by, who else?
A law firm that wanted a city contract.
So it was a pretty nasty bit of business there for a while.
It's not just cities and it's not just law firms.
You could be from my hometown of El Paso where you got
school
board members taking bribes from insurance companies and on
and on and on.
Bribery is criminal, accepting, soliciting any offer of
money or thing of value
that's enticing you to do something or enticing you not to
do something.
To thwart the execution of an ordinance or a city policy or
to push a policy
or contract or an ordinance someone's way.
Good old fashioned bribery alive and well in Texas.
Coercion, a threat to harm, expose, ridicule someone.
Coercion of a public official trying to convince them to do
something.
Coercion of a voter, the three different aspects of coerc
ion in Texas.
Honorariums, we're not allowed to accept honorariums if the
honorarium
is given to you because of your public position.
Which is why I love it when you read about members of the
legislature
getting big nice honorariums for speaking at conferences.
But don't worry, it's an insurance conference and I'm an
insurance agent.
I was paid to come here to speak as an insurance agent,
not because I'm a state senator or a state representative,
I promise.
And so you actually follow those lines, you can see it
sometimes.
Transportation and lodging is okay if you're speaking at
the event.
There's an exception for gifts and awards and mementos if
they are of de minimis value.
It's such a small thing, it's a token, it's not really
worth counting.
If you're unsure whether it really is de minimis, figure
out what it costs.
If it's more than 50 bucks, you probably shouldn't take it.
So is it a plaque? Of course that's fine.
Is it a vase of flowers, a gift basket, fruit? You bet.
If it's over 50 bucks, you may have an issue.
And I'll give credit to one of my mentors, Art Pertile,
former city attorney of Waco.
Now he's with a law firm in Houston.
He just had his own rule.
Even when my firm would send him candy, they weren't even a
client.
I like art, we send out candy at Christmas, here's a box of
candy.
Get the note back, dear Alan, thank you for the candy, it
looked great.
We didn't open it, my policy is we give it to the boys and
girls club.
Okay, and that wasn't even required by a city of Waco
ordinance.
That was his own rule.
I don't care, I'm a businessman myself.
I gave someone I like a gift, he gave it to whomever he
wanted to.
But if it's less than $50, you don't have to disclose it.
One thing that I think is interesting here, I'll make a
little side point.
The transportation and lodging, if you want to call
something a loophole, you could drive a limousine through.
This is a loophole you can drive a limousine through.
As public officials, we can accept gifts of transportation,
lodging, dinner, events, if the person who's paying for it
is along for the ride.
So imagine a city in South Texas getting an invitation to
hop into a limo, mayor, council, senior staff, drive up to
Arlington.
So they can go see the cowboys play in a luxury suite owned
by an investor and a vendor that does business at City Hall
.
Not only is it legal for that to happen because the person
paying for it was along for the ride, there's no disclosure
requirements.
There's no form you fill out.
There's no keeping a record of who was in the limo and what
the relationship was at all.
Perfectly legal.
Is it ethical?
Well, it didn't violate any written standard at City Hall.
They have an ethics ordinance.
That sort of thing doesn't cover it.
Well, next time this contract comes around for review, is
the fact that they got a trip to Arlington going to
influence them?
I don't think so.
I don't think it'll influence them.
They're still going to pick the right contract that has the
right customer service and the right dollar value.
Are voters going to have a cow where they'll learn about
this little trip to Arlington?
Absolutely.
Would the media love to have that story?
You bet.
But I have to say it's legal because I'm a lawyer.
I have to say ethical, well, it didn't violate their ethics
ordinance.
Was it the right thing to do?
I don't know.
The question was put to the mayor, the couple of council
members who went, the city manager who went.
Are you ready to own this when it's on the front page of
the newspaper or on the blogosphere?
You bet I'll own it.
Okay, have a nice trip is the way the story goes.
And why is this exception this way?
I mean, it's not even really an exception.
And of course, I've been doing this for many, many years.
This is all I've ever done for a living.
So I am cynical and skeptical.
And I think the rule is the way it is because the
legislature avails themselves of these sorts of perks of
office all the time.
And so I think it's very unlikely they're going to prohibit
this sort of thing when a lot of them view this as one of
the reasons they got it in.
They work hard.
It's a part-time job.
Hey, if we can't enjoy the occasional perk, what's the
point?
Just one jaded lawyer's opinion.
Misuse of information is actually a crime under the penal
code to use information for your benefit, the benefit of
your friends or benefit of your family,
if you came across that information only because of your
relationship to City Hall.
You're an employee, you're an elected official, you're an
appointed volunteer on a board or commission.
Now, if it's public information and everybody knows the rez
oning is going to happen, and so you're out there doing land
speculation just like everybody else could, then it's fine.
And believe me, I think about it.
I think about some of the communities that I represent that
were nothing when I started being city attorney 15 years
ago.
And because of demographics and highways and I-35 realign
ments and everything else, wow, I could have made a fortune
because I knew where the roads were going.
I knew where the rezoning was going.
I knew where the infrastructure was going for water and
sewer.
Oh boy, oh boy, my parents could have done better with
their retirement account.
But that would be unethical, right?
Oh, and it's illegal also.
So I didn't take advantage of any of that, and neither or
any of you.
Abuse of office comes up more often than I would like.
3902, the penal code, you intend to obtain a benefit that's
not available to the general public or to harm or to fraud
somebody otherwise than the general public.
That comes down to abuse of office.
This is one of the more common ones that I've seen that
gets the Texas Rangers involved.
And when a Texas Ranger comes knocking on your door to
interview you because someone you work with, or in my case
somebody I advise, is being investigated for abuse of
office, it's a very, very serious offense.
They're using government property, government money,
government services, personnel in ways the general public
would not allow and is not pursuant to a city policy
practice or procedure.
Or they're using the weight of their office to try to harm
someone.
And it's not just the usual code enforcement or action that
's pursuant to a city code of ordinances.
This is the one that'll get you investigated.
So that was a very quick run through of most of the laws
that come up.
If you've read the AG's handbook has been around for
probably, I don't know, 18, 19 years.
Three or four different AG's have touched it that gives
kind of the pitfalls for the unwary or some of the more
common ethics rules.
That's the highlights that I just covered.
The next ones we're transitioning into the ones that affect
you, the city of Denton, and your charter.
So if you're looking at 171, which your charter references,
171 of the Texas Local Government Code, you're talking
about finances and you're talking about real estate.
So often is the case where after a council meeting or
during a city council meeting, up comes the reporter.
You know, iPhone shoved in my face, wanting to question me
about conflicts of interest.
Well, first of all, I'm a lawyer, so I'm not going to talk
about what my clients may or may not be doing to a reporter
in open session.
But, by the way, what they're usually asking about is it
doesn't smell right to them.
The relationship the city councilman has doesn't feel right
.
The relationship this department has to this contract just
doesn't look right.
Isn't that a conflict of interest? Isn't that a conflict of
interest?
Just last week I was helping a city out west where the city
attorney is accused of a conflict of interest.
Well, your boss is the city council. You should not be
advising the council on this. It's a conflict.
You got to look and see what the rule is.
In Texas, we no longer have common law conflict of interest
.
We used to.
We used to have it where a judge and jury would decide on a
case by case basis, is this a conflict of interest or is it
not?
When the legislature adopted 171, they expressly repealed
and preempted all of that previous body of law.
That's no longer precedent in Texas for defining a conflict
of interest under state law.
It's this. And as you'll see, it's tied to money.
How much of your income? How much stock? What's the fair
market value? Is it real estate?
And if you have these thresholds, they will trigger 171 of
the local government code.
Does this law prevent conflicts of interest?
Usually not.
What it does is it takes the deal, it takes the transaction
out of the shadows of some back hallway at city hall or the
county courthouse and brings it out into the open.
By first of all requiring the member of the city council
that has a conflict of interest or the P&Z member that has
a conflict of interest to declare that interest in writing
in an affidavit that's filed with the city secretary and
has made a public record.
And then the second part is requires that official to abst
ain from participation, which has been defined elsewhere as
being voting and discussing.
So deliberating at the dais and participating in the voting
.
The question I get most often on 171 is not whether someone
has a conflict of interest.
I think the rules are pretty straightforward.
The question that I get as a practitioner is, well, okay, I
'll step down from the dais, but I can come speak at the
podium as a citizen, right?
I can speak as a property owner, right?
Well, you know, I have to do my little lawyer dance because
I said, well, you know, I don't advise you.
I advise the city as an entity.
And so if you're going to risk violating this rule that you
need to own that yourself, so you may want to have your own
personal lawyer advise you on that.
But since we're here and I got nothing better to do, I'll
give you some general opinions.
I think by accepting a position as a P&Z member or maybe it
's parks and rec or maybe it's, you know, another border
commission, utilities commission.
Or by accepting a seat on the city council, you are giving
up some of your rights that a normal citizen would have.
For sure, the Open Meetings Act says so and the Open
Records Act says so.
By trading in your work at City Hall, you're agreeing you
have to show all your emails most of the time.
You're agreeing you can only talk about public business
with a quorum in certain settings.
So you don't have the exact same rights that a citizen
walking down the street would have.
And this is one of them.
I would say no, I think it's probably a good idea not to go
speak from the podium as a citizen, a voter, a property
owner.
If someone needs to advocate your position, ask your spouse
to do so.
Ask your best friend to do so. Ask the lawyer friend you
have to come do so.
You go out in the lobby and get a cup of coffee.
That's the smartest thing that you can do.
I'll never forget when I was, I once upon a time, I was a
lawyer for the Texas Municipal League.
I was a staff lawyer there.
And it's during my time at TML that there was another city
in the Dallas-Fort Worth Metroplex where the chair of
planning and zoning did just an amazing job.
He said, well, everyone, my son owns this property coming
up on the agenda next.
Therefore, I've got a conflict of interest because the
conflicts of my relatives are also my conflicts under the
statute.
So I'm going to abstain from voting on this, but it's a
great project.
And it's really great for the community.
And he's worked really hard on it.
And he's barely going to break even on this project.
So I really hope you'll support it.
And then he goes on the front row and stares at his
colleagues while they deliberate and vote on the matter.
Well, I don't represent that city.
How do I know about it?
Because the whole scenario was played out in the Dallas
Morning News with photos.
I'm sitting there watching that going, gosh, it doesn't
really matter what state law says.
That doesn't really matter what that city's ethics
ordinance says.
I never want that to happen to me.
I never want that my mug on that newspaper making this kind
of poor judgment when it's so easy to just put down the ga
vel and walk outside and get some fresh air and let the
process run its course.
But here you have our conflict of interest statute,
probably the biggest, most commonly looked at ethics
statute in the state.
And it's only tied to money.
Is that how you define conflict of interest?
I'll give you another example from my TML day isn't still
in the best examples I've ever heard of real stuff.
I'm not clever.
I can't make this up.
What do you do when the entire mayor and city council
belong to the same church?
And what do you do when the city council enters into a
lease of land with the church?
Church, we're going to give you a lease for 100 years at a
dollar a year.
God be with you.
Conflict of interest.
Does it matter that some of the city council members are de
acons at the church?
Well, unless the deacons have stock, unless they're getting
a cut from the wicker basket that's passed, I don't see how
what they're doing is a conflict of interest.
Not under state law.
I'll mention to you later one of my favorite, favorite and
earliest experiences helping a community draft an ethics
ordinance.
It was the beautiful village of Wimberly, Texas.
Anyone know where Wimberly, Texas is?
It's an amazing place.
Again, I'm from out west.
I've been working my way west all my life.
New Mexico and El Paso and then Lubbock and then okay, here
we are.
I didn't know places like Wimberly, Texas existed.
Just outside of San Marcos, Texas, about an hour from
Austin.
The Cypress Creek and Blanco River collide.
Cypress trees, hills, a beautiful enchanting place.
It's been around for 2,000 years as a settlement.
It didn't become a city until the year 2000.
Why do they finally decide we got to be a municipality and
govern ourselves?
The same reason most communities do.
They don't want to be annexed by San Marcos.
They just see those city limits sign moving down the road,
so we're going to become a city.
And what was amazing to me about this, with that little
community, they got incorporated.
They elected their first city council, female mayor, five
male city councilmen.
Why is that relevant?
Because all five are members of the Lions Club.
You couldn't do anything as a male in Wimberly, Texas if
you were not a lion.
That was their group.
Saturday Trade Days, the number one economic engine they
had,
which pulled in people that helped the antique shops and
the restaurants and other places in town.
Very big tourist area, lots of B&Bs, lodges and all that.
It was a big deal.
And what happens when the mayor says, "Well, I've been
invited to go speak at the Lions Club on Saturday."
Fantastic.
Is the council going to be there? Yep.
What are you talking about?
Oh, our new zoning ordinance, our new sign ordinance.
So let me see, I've got my entire city council or lions,
the mayor, and she's talking about public business.
Any Open Meetings Act issues popping up in your head?
Well, of course, it's open to the public, right?
Well, no. Saturday breakfast at Lions Club is not open to
the public.
How do you reconcile that?
I don't know.
Did I mention I'm no longer city attorney of Wimberly? Did
that come out?
Mere membership in an organization is not enough to create
a conflict of interest.
And yes, of course, there are cities that do contracts with
Lions Clubs or other groups for use of parking lots or for
services or for those sorts of things.
Chambers of commerce, on and on and on.
It's very common for cities to have contractual
relationships.
Mere membership in an organization does not trigger a
conflict of interest under state law.
It's only dollars that are going to do that.
I'll mention that the rest of 171 says if anyone on the
board has a conflict and they file their affidavit, they
can't abstain or they can't participate in the matter any
further unless a majority of that board has a conflict.
So if it's a zoning decision or something else and it
affects most of the city council members, all the city
council members, then they declare their conflict.
Okay, here's our affidavit.
Now we get to go on and have our discussion and we get to
vote, even though we all have a conflict or most of us have
a conflict.
I think that rule is there to keep from paralyzing the
governing body.
At some point, they got to take action.
And if they take action when they had other alternatives
that were not conflicts, well now the politics kicks in.
There may not be accountability under state law, but there
's accountability at the ballot box, which is something we
should never forget when we're thinking about ethics.
The other thing is this law doesn't prevent the transaction
from going through.
An example I've seen, I've seen all these.
The mayor owns the only electrician shop in town.
The mayor owns the only auto shop in town.
That's really fun for small town Texas.
Is the police department, public works department, are they
going to haul their broken vehicles for maintenance or
repairs 30 miles down the road?
Or are they going to contract with the mayor's garage to
fix things?
Well, as long as the mayor declares that interest or an aff
idavit and abstains from participation, they can vote to
give the mayor whatever contract he wants for that service.
And sometimes, and I've seen it with my own two eyes, it
really is in the public's interest to do that sort of
arrangement.
They just kind of go over and above in the name of
transparency to make sure the citizens and voters know why
they're doing this, why it's a good idea.
This is not really shady self-dealing.
But there are quite a few cities that would have ethics
ordinances that would step in where state law does not and
prevent that transaction from going through.
And we'll discuss a few more of those in a minute.
Yes sir, you had a question?
>> Is the income, is that self-reported?
>> Your tax returned.
It's a percentage of your reportable income.
And there's no auditing requirements that I know of.
You know, one of my, do with this as you will, my favorite
example under this is I had a city councilman in a town
near Austin where there were lots of emails coming to city
hall before council meeting.
Because the vote was going to be on a variance request.
This particular town is so small, the city council can
double as the board of adjustment.
Y'all aren't allowed to do that, but smaller towns were
allowed to do that.
And so a variance request was coming, emails were flooding
in, demanding the city councilman abstain as a conflict of
interest because he was a realtor.
And the real estate company he worked for was managing this
project and pushing the variance through.
And so, you know, questions came up about once anyone, his
income, what not.
When it came to it, he asked for a point of personal
privilege, Mayor.
He said, I'm going to read a statement to the public, read
the statement saying, yeah, I work for this company.
I'm an independent contractor as our most realtors, real
estate agents and brokers.
I don't represent this project.
I will get none of the commission that comes through on
this project.
I don't get bonuses.
Our company doesn't give bonuses based on how well the
company is doing.
All the folks who voted for me knew I was a real estate
agent.
They wanted to have somebody who understood real estate on
the city council.
That's me.
So I'm not abstaining.
And I follow an affidavit just to do that.
But I am not abstaining from this.
I'm voting on this variance.
And I sat back and quietly on the inside applauded the guy
because he read the rules.
He thought it through.
And then he took a position and it wasn't a cowardly
position.
It was a very bold position.
And he's going to be accountable for that when the election
comes around.
And I heard no complaints.
I think he answered it pretty well.
But as a city attorney, that's the kind of thing you would
hope someone would do.
Know the rules.
Apply it to the facts.
Take a position and don't look back.
There's a second conflict of interest provision in Texas
law that's just for Platts.
It's also going to apply to PNZ.
It's also going to apply to the city council.
If you look at the thresholds, they look pretty similar,
don't they?
But it's in the Platting statute and specific to the
approval of Platts, amending Platts, modifying Platts.
File an affidavit and abstain.
So those are the two Texas statutes on conflict of interest
.
And then you come back and you see yours again, 14.04,
which basically requires that everyone comply with 171
mentions voting versus participation and file an affidavit.
Back up to the prior slide.
This one or the one before that?
No, this one.
The question before that was how do you determine the 10%
amount and it's off the tax return.
That's fairly finite.
Here you've got some fair market value.
So what is the elasticity of that term, fair market value
of business?
Or is there a tangible milestone or benchmark we can tag
onto for that?
I think the answer to your question is that's very elastic.
And no, I don't know of a benchmark to use with that.
I think it goes to Mr. Eaton's point about being self-re
porting.
And, you know, I'm always cautioning city officials.
Again, I have to tell them I'm not your lawyer in
particular, but as the entity's lawyer, I'm going to
caution you to tread lightly on this and err on the side of
caution because of the criminal penalties that come with it
.
And those are unique to the person.
It's not the entity.
Is this vote worth you being investigated?
Is this vote worth you, you know, having a grand jury
compile on your behalf and those sorts of things?
And so I've never even seen the financials on these.
Folks just sort of eyeball it, guess it, and usually opt on
the side of being safe.
Thank you. Sorry to interrupt.
No, that's a great question.
I'll get back to you in a moment.
Mr. Sullivan?
You mentioned 10% of fair market value business and also $5
,000 of fair market value.
Isn't that in conflict?
It's whichever is lower.
The lower of the two.
Yeah.
Whichever is the lower threshold.
Mr. Eaton?
You mentioned something about filing the affidavit.
Once you file the affidavit, is it done?
You're done with the issue?
I didn't quite follow up that one.
You file the affidavit, which is in effect putting the
world on notice that you own this or you've invested in
this, and the issue is pending before the city.
Once you've done that, there's no more action that you're
required to do.
Instead, it's a prohibition on action.
You're not allowed to deliberate among the group.
You're not allowed to vote.
Will you pull that affidavit at a later time?
No, it's a public record forever.
And I've never seen, there's no AG opinion or court case
that I've found that talks about having to refile an affid
avit.
Same issue comes up the next year or the next year.
I don't know that there's an obligation to refile once you
've done it, if nothing has changed.
I certainly have city officials that just go through the
step, usually because the city secretary is right behind
them poking them saying, here's your form, it's on the
agenda, sign your form.
Just to avoid the fight.
Yes, sir?
>> The $2,500 of land is up to the final group's cost value
of the land or is that the total value of the land within
three months?
>> It's either.
>> I don't know.
>> I mean, it can be.
If your stake in it is at least $2,500, then you need to
file the affidavit and abstain from voting on the plan.
For pretty low thresholds.
>> Is that the subject property or is it the land next door
to the development?
>> It's a subject property.
>> Okay, so if you own the land next door, and that's going
to increase in value because-
>> Then you go back to this one.
And this one's still there.
And there's no indication that the legislature meant to do
vetail these two together.
They were written and enacted at separate times, but it's
still there.
And for many years, I referenced earlier, I know some of
you have seen it, because I've seen it in the newspaper
articles.
The Texas Attorney General's office will periodically
publish a little book.
The name keeps changing, but it's basically this material.
And for a decade or more, there was material in the AG's
handbook on ethics that said,
if you own property within 200 feet of a piece of property
where the city is taking action,
platting, zoning, whatever, then you have a conflict of
interest under 171.
You need to file an affidavit and you do abstain.
And for years, those of us in the business were asking,
where's the 200 foot rule come from?
And no one could ever tell us.
So again, we're sitting around TML wondering where-- OK,
well, the AG says 200 feet.
So 200 feet.
If I'm 201 feet, do I no longer have a conflict?
No.
The AG's handbook, without a citation, says 200 feet.
Well, if you look at this version, go ahead and look at it.
It ain't in there.
Because eventually, they stopped putting it in there
because the agency itself realized that was sort of a rule
of thumb.
There is no source for that rule.
No court case, no statute.
No one really even knows where that came from.
But it was around so long.
I think maybe it comes from, if you know the zoning world,
you have to give notice of zoning changes to all property
owners within 200 feet of the boundary of the subject
property.
So maybe that's where someone came up with that.
But it's not in there anymore.
So it's a case by case basis.
If you think that rezoning property is going to have an
effect on your house or business just down the road, you
should abstain under 171.
If you think it will have no different effect on you than
it has the rest of the city, all your properties will go up
or go down or not be affected at all, then you don't have
to do anything.
But it requires you to be aware of this and think about it.
And oddly enough, the more it's going to affect your
property value, the less you should be involved in the
discussion or the voting.
Excuse me.
A little housekeeping.
When you do have questions, try to identify the mic closest
to you to lean into the little table.
We're having some difficulty capturing everybody.
There's different microphones around on the table.
Thank you.
You betcha.
Nepotism here is the state law.
I think I said 572 earlier.
It's 573 of the government code gives us our nepotism
statute.
The notion being that we should not be bestowing patronage
on our relatives.
At one point in time, I think that's the only reason people
ran for office.
You want to uplift your family?
Fine.
Get elected.
But you know, it's not Chicago and it's not the 20s.
So here we are.
This rule applies to the mayor and the council and their
family within two degrees.
If it's by affinity, which is going to be by marriage or
three degrees by consanguinity, which means blood or
adoption.
And the way you calculate that is to count the steps.
I am related to my sister by two degrees.
For me and my parents is one step.
For my parents to my sister is a second step.
So that's how you count your steps.
This applies again to dollars.
If someone is a part time employee or full time employee,
it doesn't matter.
This rule applies.
If they're an independent contractor, that's not an
employee.
That's an independent contractor.
If they are a volunteer, this rule does not apply, which
makes it fun when you go into a community where everyone
hates everyone.
Everyone hates everybody.
And I find out why.
It's because the mayor's brother is chair of the Economic
Development Corporation and the mayor's spouse is chair of
Planning and Zoning Commission.
Okay, now I understand.
Now I understand why that's the case.
I once was city attorney of Bee Cave, Texas.
If you know Bee Cave, just west of Austin, where it was so
fun because this mayor and council member were just boom,
boom, boom, boom, boom.
She was a no good Democrat and he was a lousy Republican.
And boom, boom, boom, boom, boom.
The meeting is over.
Or would you like to go to dinner?
I don't know.
Let's go to Serranos.
They were husband and wife.
I represented cities where there was fathers and daughters,
mothers and daughters.
I represented cities where there were brothers.
Because none of this applies to that.
If the voters choose to elect relatives, they can do so.
Is it smart?
I know this rule is talking about giving people paid jobs
because of the office.
And again, if the charter gives the city manager hiring
authority, then this does not apply to employees of the
city that trace their employment back to the city manager.
Giving you another look at your charter provision nepotism.
It looks very similar.
Except for it goes a little bit beyond state law and it
adds that department heads language in there.
Which is not mentioned.
Do we need to take a break of any sort?
Because we're about to transition away from the state law
part of the discussion into the next phase.
Do you want to keep going?
Let's continue.
Do you have a question?
Okay.
Yes, ma'am.
Ms. English.
In regards to nepotism, if that does happen, even though it
's not a charter, what resources are in place for that rule
not to be implemented?
That rule not being followed.
Or what's typically the recourse?
Well, the typical recourse is if someone is hired, they're
fired.
If they weren't here for the pre-existing period, they're
fired.
And this plays out, my gosh, I just saw it near Austin
recently in Maynard School District with the school board
and top level employees with the school district.
This comes up routinely.
Does the family member have to be directly hired by the
city or the governing body or if they're in receipt of
public money paid through a third party contract?
Is that?
If they're a city employee but the funding comes from a non
-tax source?
They're not a city employee but they were paid through a
contract with city funds paid through a third party.
If they're not an employee of the city, I don't think this
rule applies, whether it's your charter rule or state.
Okay.
I'll go back to 171.
Voting on it would.
I think voting on it would.
And with this one, even if they are a pre-existing employee
, that council member is still prohibited on voting on their
future raises, any personnel actions or those sorts of
things.
Even if they predate their relative getting elected to the
city council.
Okay. So that's to keep the state law at about an hour and
we're at an hour. So we'll move into this next part.
State law is state law is state law.
I don't think the interpretations I've given you are going
to vary from what you've read in the A.G.'s handbook or on
your own or anywhere else.
What's left of our discussion is going to be a lot of my
opinions about the law and what I'm going to suggest to you
as best practices, having done this for many years, either
guiding my own clients through ethics issues.
Or occasionally I'm hired a special council to help the
city on ethics issues.
If you want to foster integrity in City Hall, if that's how
you interpret the city council's mandate to the charter
review committee, then these are the five ways I think it's
done.
And maybe you can give me three or four or five more ways.
Or maybe you don't like these ways.
But as we approach the topic of what to put in the charter,
if anything, or what to recommend goes into future
ordinance, if anything, think about these things.
These are my opinions, but also there's quite a bit of
literature out there on the topic of government ethics.
And these are things that I think that work.
I think the number one you have to start with is leadership
.
You need if this group thinks that the community outside
these walls wants to see increased integrity, ethical
behavior, good conduct at City Hall.
You got to start with leadership.
So city council mayor, city management, department heads
are going to have to walk the walk and talk the talk.
It is a very powerful indicator of whether or not you have
an ethical organization.
Do they behave the way you want them to behave?
Do they expect those that work for them to behave in a
certain way?
Are they role modeling?
Are they having a conversation on a regular basis about
ethical issues that arise and they arise all the time?
If you can't get leadership buy in to model these rules,
no amount of ethics ordinances that you adopt are going to
result in an organization change or a cultural change.
So you can't skip that step.
I trust you're going to whatever you recommend and whatever
ultimately is adopted is going to have leadership buy in.
So then you move to the next stage, training.
And I don't mean once a year.
I don't mean just once you're hired or once you're elected
on an ongoing basis.
What most of the literature is going to say is that to get
an ethical organization, you must have ethical conversation
.
It becomes an ongoing part of your dialogue.
It's something that routinely colleagues and peers discuss
and then their supervisors get involved and it crosses over
departments.
What is the right thing to do?
What should we do?
What's required of us to do?
Sometimes your staff is part of professional associations
that go off and do training.
For some folks like lawyers, city planners that are AICP
certified,
you're required to go through so much ethics training a
year to keep your license, to keep your certification.
And that's certainly part of it.
The third step I think you have to have, this is the least
sexy of them all.
Administration, process, procedures.
We yield ethical results by having ethical processes.
It doesn't matter who you are when you apply for a plat
amendment.
It matters, did you fill out the application?
Did you give us the data that the ordinance requires?
Did you pay your fee?
Did you meet the timelines?
If you need a variance or a rezone, have you met the
standards to get a variance or a rezone?
It doesn't matter who you're related to.
It doesn't matter how wonderful, fantastic the project is.
It matters did you follow our process.
And it's through the boring process and procedures, the
forms and the checklists, that we achieve justice in a
procedural manner.
Then there's the regulation part, which is really what I
was asked to come talk about.
Adopting rules.
And then you're measuring people's compliance with the
rules.
What's the rule?
What's the action?
Is there compliance?
Is there not?
If there's not, is there punishment?
What's the punishment?
And so having that sort of regulatory process is something
that you can think about.
Some rules are more aspirational than others at City Hall.
Things we should aspire to.
They're somewhat lofty.
Some are very, very mechanical, very, very basic.
I've seen some of the shortest, smallest ethics ordinances
have some of the strongest provisions.
When I ask other professionals, other practitioners, other
Texas ethics experts that I know that deal with City Halls,
what's your favorite ordinance?
What's the best one?
None of them.
Why?
Because every single ordinance was tailored to deal with
the demons that City was wrestling with.
You know, I know that Aaron and your City Attorney's Office
will tell you, you know, whenever you're drafting an
ordinance, usually there's an impetus for that.
And you're reacting or responding to that, whether it's a
dog incident or it's an ethical incident.
And so ordinances get drafted, and they should be drafted
to more fit, to fit a community.
But, you know, I love the one in tiny little Dripping
Springs, very short ordinance.
It's got a provision that's kind of rare to find.
But again, it's small town.
If you are a vendor of the City of Dripping Springs, and
you have a client that is doing business before the City of
Dripping Springs, you have to disclose that to the City.
And the City decides whether or not you get to represent
that other client and keep your City contract.
Now, I've never known the City to deny a waiver from that
rule.
But what's the issue?
Oh, and you're a small town and you've got an engineering
firm or an architecture firm or a law firm that's
representing City Hall and developers and builders and
others.
Everything seems a little bit cozy.
And the public starts thinking, hmm, there's lots of back
room chit chat going on.
There's lots of dinners and lunches going on.
And information's flowing freely between City Hall and the
developer and the builders.
But we, the taxpaying voters, we're not privy to those
conversations.
So they adopted a rule that takes care of that.
So as long as engineering firm A says, yep, we're the City
's engineer on this street project, but we're also
representing this builder over here building these homes.
So he goes, okay, does everyone know that? It's on City
Council meeting. It's on the agenda.
Okay, waiver approved. Go ahead.
Folks always have the chance to say, no, we want the
developer money. We don't need that City Hall money.
They have the choice of doing that. But every city is going
to adopt something unique to their rules.
Well, who really enforces it? Is there an ethics commission
? Is there an oversight view? Is there an outside party?
Having regulations is a common step along this path of
achieving a more ethical City Hall.
If you read some of the data that I've read and just look
at some of the polls, you can go online.
Anyone can do it. Use Google. You don't have to be a lawyer
.
And Google ethics rules, public trust, and government.
And you will see a steady decline in the public's trust of
government, starting from the 70s and going on until today.
But then you look the other reverse, you see a spike of
ethics rules being adopted.
And so there's no study that I've seen that has any
correlation that more ethics rules yields more public trust
.
I don't know. The same studies that I look at will say that
number one, it's nice that they trust local government more
than state and federal government.
And it's even better that they trust staff more than
elected officials.
Not only understand that one, they get to choose the
elected officials. They don't get to choose staff.
But study after study after study shows employees at City
Hall instill more confidence in the electorate than the
voters, the elected officials do.
And still, I understand if Denton chooses to go down the
path of adopting a more comprehensive ethics ordinance,
and you all need to figure out if that's going to happen
because of something you recommend in the charter or not.
But for sure, adopting regulations and then trying to
achieve a compliance with those regulations is part of it.
What's the fifth part? The ballot box.
You have city after city where there is a perception of a
lack of transparency, the voters tend to have their say
when election time comes along.
If there's a bunch of self-dealing or backroom sweetheart,
good old boy deals, the voters tend to find about that and
hold people accountable at the ballot box.
Maybe not all the time. And that's why sometimes you do
have strong ethics ordinances and ethics commissions to
police that behavior.
It's because the voters who voted to throw the bums out
didn't win. The bums are still there.
Okay, we got to get out of some other way. We'll get at
them through the ethics channel.
And we want to debate right or wrong. We got to go
somewhere after the meeting to do that.
I think it's all part of the package. And how much the city
of Denton chooses to adopt something like this is going to
depend on more on you folks and what you recommend.
Some simple rules to achieve integrity on a daily basis.
Know the law.
You all just got briefed on it. You've got your notes. It's
there. There's really no excuse.
Know your city's policies and how Denton has adopted its
own rules, whether it's by resolution or through an
ordinance or the little bits you have in your charter.
I'm a big believer in professional norms. And I did get my
degree in public administration.
And when you read about the theories and those of us who
got MPAs know that a lot of discretion is entrusted to
employees, to department heads, to police officers, to
school teachers.
They get to make a lot of choices every single day with
very little oversight and no direction on the scene.
Well, how do you make sure that they make good decisions?
You get them lots of training.
You drill them on your expectations and you have
professional norms that help fill in those gaps when you
don't have a rule that applies to that exact situation.
And I know Denton has a history of being very involved in T
ML and other professional groups, trade groups.
So I'm sure your staff's getting trained and then saw an
article by a professional Peter Sandman, which broke it
down pretty easily into the acronym LEADS.
And don't you ask yourselves these questions every time you
're faced with a dilemma. Is it legal? Is it ethical?
Because they're not the same thing. Is it acceptable? Does
it just make sense?
Is it defensible when it's written about on the newspaper
front page or worse, the blogosphere?
When the bloggers get a hold of this, can you defend what
you did? Is it just sensible?
And it's so often the case that I can tell you, yes, that
the limousine trip to AT&T Stadium in Arlington was legal.
And yes, it was ethical because it didn't violate an ethics
rule. Is it acceptable? Is it defensible? Or is it sensible
?
A lot of your face is wrinkled up when I told you. That's
what you're getting at. You're getting at the end of that.
And that's part of the conversation that really if you did
nothing else but have your employees, elected officials,
and volunteers run through this LEADS example, I bet you
would see improved results in your community.
I suspect that's not going to be enough for those who want
a more stringent ethics code, but I think it's a good start
.
So I mentioned the professional networking. These are just
some of the ones that are very common in Texas.
American Planning Association, the Society for Public
Administration.
I was amazed that Boat, the building officials association
of Texas, has a very strict code of ethics.
How did I know that? It's my brilliant legal mind. I was at
a TML conference and they have a booth.
So in the exhibit hall at TML, I walked up to the Boat
booth and said, "What do you all do about ethics?" "Dung, d
ung, let us show you our code of ethics."
The city secretaries have one. The finance officers have
one. The municipal clerks have one. Your city secretaries.
And of course, the Texas City Management Association has
the International City Management Association's code.
And talk about tough. I'm not sure if there are any ICMA
members, TCMA members here. They'll boot you out of the
organization.
They self-police it. They are so strict, they won't let me
teach ethics for TCMA.
Because you've got to be a city manager to teach ethics.
And you've got to be a dues paying member of TCMA to teach
ethics.
And they don't want my curriculum. They want their ethics
rules, their tenets to be taught.
They take it seriously. So much so that I've known of, I
didn't represent them, I've known of city managers who have
this great side deal.
And the city really would benefit from contracting with
this side deal. But TCMA would never let this happen.
So city manager resigns from TCMA. City does contract with
city manager's side business.
Once it's all inked, city manager rejoins TCMA. Nice trick,
right? Very ethical being.
But these are tough rules. So while some of it could be
fluff, most of these associations I am active in in one way
or the other.
And they take their ethics training very seriously. I think
money you spend on sending your people to stuff like this
is money well spent.
So all of that funnels down to what's in front of you.
And the question that has come up, I've seen some of your
minutes, I've spoken to some of your members.
Is this motion of your charter, is it enough? Is it lacking
? Is it too much? Is it holding you back?
Do you need a stronger, more comprehensive ethics ordinance
than whatever ordinances you have on the books?
Do you need to repeal and replace the ethics policy that
you have?
When you look at the world of ethics ordinances, these are
the kinds of things they normally address.
Will there be a border commission? You know, it's amazing
to me.
One of the standards that's held out there as being one of
the more comprehensive, thorough, well managed is the city
of San Antonio.
But the city of San Antonio, not only do they have an
ethics review commission that processes this stuff,
not only do they have ethics advisors who are lawyers who
don't work under the city attorney,
they work under the auditor, the internal auditor's office
of the city.
And even then, there are some in the community that are not
pleased with the process and they want a completely
independent body not appointed by city council.
The auditor is appointed by city council.
The ethics review commission in San Antonio is appointed by
the city council.
We need one from somewhere else. Where would it come from?
I don't know.
Are they elected? Are we going to elect an ethics
commission?
I was in El Paso last week advising them on this exact same
issue in El Paso.
And what are some people clamoring for in El Paso?
Oh, we'll let our municipal court judges select our ethics
review commission members.
Because you know how objective and non-political municipal
court judges are, right?
I mean, El Paso, they've got like 20 judges.
It's a very large court. They have night, day court, night
court, the whole thing.
Wow, as a city attorney, I get a little knot in my stomach
the thought of judges picking them.
But you get to decide.
The city of Denton gets to decide if you're going to have a
thorough ethics ordinance, who's going to administer that?
Is it volunteers? Is it staff? Is the city of Plano where
complaints are sent to the city council for action?
Okay, so there's no commission that goes to city council.
Is there going to be some sort of preview?
Is someone going to do an initial assessment, a preliminary
evaluation to make sure a complaint has merit before it
goes prime time on the big screen broadcast on the news
channel, whatever?
Who's going to do that? Is the city attorney's office? Is
it the auditor's office?
Is it a subcommittee? What are you going to do to make sure
that neighbor on neighbor violence isn't showing up in the
form of an ethics complaint?
Or warring candidates in a contended election is going to
come up as an ethics complaint.
Well, cities vary on which version they're going to do.
What is your process and criteria? One town brought me in,
they had the requirement to review their code of ethics, I
think it was every five years.
So they got a new ethics review commission, they're going
to review their ethics ordinance and look at it, say, I
want to take a look at the ordinance.
Wow, two interesting parts of this.
Your ordinance says that deliberations regarding ethics
complaints in the preliminary stage by the commission are
confidential and closed door.
When you look at what the powers of that group is, the
ethics review commission in that town looks a whole lot
like a governing body.
Just like a city council or PNZ or a board of trustees or
county commissioners.
So the open meetings act is triggered.
So what provision allows you to, is it a personnel matter
that allows you to go into executive session?
Or you look further down, all documentation regarding
complaints that are unsubstantiated or confidential.
I think the open records act, the public information act,
has got a lot to say about that issue.
So you're looking at the rules and process and procedures
and the practicalities of state law and the mandates of
state law are going to get involved.
Your ordinance will need to reconcile that at some point.
What is the punishment? Is it a letter of admonishment? Is
it a public mocking?
Do this again and we shall taunt you in public. Okay.
Maybe it's a censure, a public reprimand.
Well, employees can get fired.
Volunteers can get booted off the board.
I like this one representation of others.
It's a common attribute of many ethics ordinances to say,
if you are a member of a board or commission, you cannot,
for money, represent anyone else before that board or
commission.
But you can play with it. Is it that board or commission
only or is it all boards and commissions?
Or if you do it for volunteer, on a volunteer basis, are
you okay?
I can represent my mother before PNZ, but I can't resent my
neighbor for money.
The ordinances change.
But in the city of San Marcos, they had an ordinance that
just says, period.
If you serve on a city board or commission, you cannot
represent somebody at City Hall if on any other board or
commission.
And the chair of planning and zoning broke that rule and
was automatically under the ordinance kicked off his chair
of planning and zoning.
Yeah, the bad news, he was a lawyer.
Lawyers are just the worst.
And so he sued the city of San Marcos, wanting to get his
seat back on PNZ.
Most PNZ commissioners I know would go, woohoo, thank you.
I've done my public duty, I can go home.
No, he sued and he lost and went all the way up to the San
Antonio Court of Appeals, which found that the volunteer
had no property interest,
no justiciable right in being on planning and zoning, that
when he agreed to serve in that capacity, he agreed knowing
the city's rules.
And when he broke the rules, he was out.
And that's one of the few actual reported appellate
opinions we have on a municipal ethics ordinance in Texas.
Conflicts and gifts, maybe you think that the $50 rule is
too generous.
Knock it down to $25 or $10 or $0.
Another town I represented, they're going through their
ethics ordinance and boy oh boy, they set their targets.
No comped meals.
The definition of a gift means a comped meal.
I said, okay, can we table out to next meeting?
Sure.
In between there, I called the chief, chief of police, come
join us at the ethics commission.
And he's there, what have we done wrong?
What have our officers done wrong?
I said, what do you mean?
Well, I don't know about Denton, but a lot of other places,
when you show up in a police or fire uniform,
you often don't pay for your tab or you don't pay for the
full tab.
I know because I've been there.
I pay.
I get my bill.
But the police officer sitting next to me that I'm having
lunch with gets his copped.
It happens a lot.
Well, why would you guess?
I don't know.
If cops are there and police cars are parked out front,
maybe the place won't get robbed.
Maybe they're really appreciative.
Maybe they hope the cops will respond to calls faster.
I don't know.
I don't know if the cops don't change who they respond to
based on free meals.
I know that when I travel, whenever I see a restaurant
looks like a dump, but there's a fire truck and two police
cars parked there,
that's where I'm eating because the food's guaranteed to be
top notch.
So I don't know why restaurateurs do that.
But in this town, they said, sorry, chief, we pay your
officers enough so they can buy their own breakfast, lunch
and dinner.
If you've got an issue with how much they're getting paid,
bring it to the council during budget time, but no comped
meals.
Chief's like, okay, tell me the rule.
We'll follow the rule.
So some go well beyond the gift rule when it comes to those
sorts of things.
Moonlighting is a big one.
And again, I pick on police officers because that's where I
get the HR problems.
Usually it's because the department will set a policy, not
the city.
So okay, police officers can moonlight as security.
Fine.
Can they wear the city uniform?
Can they have a city car?
Is the city getting paid for use of the city car?
Can they be security anywhere or anywhere except those
places that have a TABC liquor license, beer permit?
Okay, they can be anywhere that has a liquor permit, but
nowhere that's a sexually oriented business.
I mean, on and on and on and on.
Is the same thing true for your planning department, your
engineering department?
Do you care if employees have outside jobs?
If so, what are the rules on doing that?
Otherwise, it's usually legal for them to do so.
As long as they're not using city equipment to do that.
And I even have a guy recently, a city planner who was ind
icted because even though the council knew he had a sideline
business, he told everyone he had a sideline business,
he mistakenly responded to a personal business issue with
his city email address.
And the DA said that use of a city email address was
abusive office and abusive city equipment and resources and
had him indicted for that.
That's still pending.
That's more strict than I've ever heard of from the
criminal standpoint.
Revolving door is big.
City of Dallas did not have a revolving door provision in
its code of ordinances until they created a new sports
authority, got the taxes approved,
got the bonds issued, and city manager goes and resigns
from the city of Dallas to emerge as executive director of
the new sports authority.
Now the city of Dallas has a revolving door.
Again, a lot of these ethics ordinances, no matter how hard
you try to draft the perfect beast, they are in response to
things that come up in your community.
Do you have rules?
I think the city of Plano has rules.
If you're a city council member, you can't represent
someone before the city for six months or 90 days after you
've left office.
If you're an employee, you have to wait a year before you
can come back and do that.
If you're a volunteer on boards and commissions, it's a
certain time period.
If you don't have a revolving door, state law does not
restrict it.
There is a state statute for state employees.
So if you work at TCEQ or the Water Development Board and
there's a time period of time, usually it's two years
before you can take a payment at an outside employer
working on the exact same issue that you worked on.
But if you're working on unrelated issues, unrelated to
your time at state employment, then you can jump ship from
the state agency and go to work in private practice.
But unless you adopt a local rule on the revolving door,
there is no such limitation on staff, electeds, or
volunteers.
Purchasing rules is a whole other topic.
Your procurement department is going to have those that go
beyond just the bidding requirements, competitive proposal
requirements, and the historically underutilized business
requirements.
But those types of limitations on spending money and
contracting also achieve some ethical results.
Disclosures, you know the state law disclosures.
Some cities have additional disclosure requirements.
Lobbying is one that I would like to see more of, but they
're very unpopular.
In part because lobbying restrictions are restricting
people talking to people.
Grown ups talking to grown ups.
And also the lobbyists are pretty good at lobbying on
behalf of lobbyists.
Yeah, I met the guy who created the Lobbying Association in
Austin that lobbies on behalf of all of their lobbyists in
the state.
It's a great thing to do.
And I know that even in Austin, for example, where I live
or my office is, I've helped communities that have
incorporated before as cities.
And one of them was in partially in Austin's ETJ.
They wanted Austin to release it.
They wanted to knock on doors and try to convince people to
release it.
Well, Austin's ethics ordinance has a lobbying component
that says if you're going to lobby, you got to register.
What's your name?
Who's your client?
What's your issue?
And pay a fee, which back then it was like $500 a year.
It's a substantial registration fee.
I think it's fair game.
And even right now, currently pending, both Travis County
and city of Austin are reviewing and revising their lobby
ist rules.
And another part that's sort of ethics related, you see
cities starting to do a little bit of, and that's campaign
finance.
Some cities, San Antonio is one of the examples.
I think it's if you give more than $1,000 to a candidate,
you are banned, prohibited from entering to certain kinds
of contracts with the city for a period of time.
And it's not all contracts, but it's categories of the
major contracts.
And I've heard anecdotally from some of the staffers over
at city of San Antonio that the elected officials hate that
rule.
It really makes raising money for a campaign, a modern
campaign difficult.
The vendors love that rule.
Oh, thank God.
I can now have lunch and breakfast or dinner or go home,
whatever, or see them at the Lions meeting and they don't
have their hand out.
Constantly asking for donations, receptions, hosting events
and whatever.
So if a city were to adopt campaign finance laws, they can
have that separate or they can have it as part of their
code of ethics.
This is not exhaustive.
There's plenty of other things that are in ethics ordin
ances.
Whoever designs one for Denton, if you go down that road,
is going to have to kind of go through a list, I think,
first of what's the problems?
What are the boogeyman that keep you awake at night?
What are the issues that the community is upset about or
concerned about that we need to address that are not
already sufficiently addressed elsewhere?
As a lawyer, it's a general rule.
I don't know how Anita Burgess or how Erin Leal is going to
approach this.
I tend to try to counsel clients against duplicating what
is already in state law.
Whether it's regulating dogs or regulating ethics or
regulating whatever.
Go above and beyond if you need to.
Fill in the gaps if you need to.
I don't see a lot of benefit in that level of overlap.
By way of example, and this is all in the media, so I'm not
conveying anything confidential.
That would be unethical.
Last week, the dilemma before the El Paso Ethics Commission
was that mayor and council members have been publicly
accused of violating the Open Meetings Act
by having a series of discussions less than a quorum
without public notice or public participation.
Some call that a rolling quorum, a walking quorum, whatever
.
Ethics complaints were filed against the mayor and those
council members for violating the Open Meetings Act.
And the question that I had to wrestle with was does the
Ethics Review Commission of the City of El Paso have
jurisdiction and authority over the Open Meetings Act?
Well, some can look at language.
There should be lawyers themselves who are good at finding
some obscure language and trying to bootstrap the Open Meet
ings Act into the ethics ordinance.
And I declined to do that.
I did not support that interpretation.
And was I influenced by the fact that I know the Texas
Rangers have been in City Hall interviewing people?
Was I influenced by the fact that little birdies have told
me grand juries have been convened?
I don't know. Grand juries, those are secret deliberations.
I have no idea.
But the state is handling that.
But that's just one guy's opinion.
Several on the Ethics Review Commission said this is
exactly the kind of stuff we should be reviewing.
If it's not on our ethics ordinance, it should be in our
ethics ordinance.
What if the state does nothing?
What if there are no bills? What if they go to trial and
the jury finds nothing?
We still think that if they did this, it was unethical for
them to do so and we should hold them accountable as an
ethics commission.
Okay. That's what you think.
And if you want the council to amend the ordinance to do
that, that's a political policy conversation for the city
council to do that.
Some ethics ordinances are incredibly broad.
Some are very narrow.
If you're San Antonio, my gosh, you will have to have a
very, very substantial ethics infrastructure.
I don't know what else to call it.
The personnel, the funding to go through all the things
that San Antonio monitors.
And they do it for about ten complaints a year.
Somewhere between ten and eight complaints a year filed in
San Antonio.
In El Paso, I think probably seven have been filed since I
've been standing here.
It's a little bit, it's way out west and it's obvious that
the ethics ordinance is a political tool, a weapon of sorts
.
And by the way, some of the complainants that have filed
the most recent complaints are also candidates for office
and they filed against incumbents.
Doesn't mean there was no ethical issues there.
My review was limited to what does the ordinance have to
say.
And I know that's a question some of you all want to get to
is if you're going to pursue a more ethical culture at City
of Denton,
does that mean every bit of behavior has to be tied to a
written standard?
Or can you have broader or general standards that folks can
be held accountable to even if you can't find a very
specific breach or specific violation?
And that's certainly something that we can talk about.
Because where we are is this slide.
And some of you may have been there when you walked in the
front door.
You were already here and you didn't need the rest of the
material I was asked to present on.
But what are you going to do?
You are a charter review committee.
You looked at several aspects of the Home Rule Charter.
This is just one of them.
And you have a specific charge regarding this.
What are you going to do?
Some people out in the community might think number one is
non-option.
Nonsense.
I'm a lawyer, I'm here to tell you doing nothing is always
an option worth evaluating.
It's possible that you've learned all you need to learn and
you either think that state laws got this covered,
your charter's already got this covered, or fixing this is
beyond the scope of what you're going to do with your
charter.
So I would certainly say consider doing nothing and decide
if that's appropriate for Denton or not.
If you choose to do something, what is that?
You could recommend the city council do something else.
They could establish a broader policy or a more specific
policy.
It can be done by resolution, which is really a statement
of the council's will.
The one policy you have right now, I mentioned before in my
opinion, is fairly aspirational.
I know it's been likened to the Boy Scout oath and Boy
Scout law.
And it makes me laugh because when I do ethics training,
this is not my usual ethics training course.
I get into the Girl Scout law and the Boy Scout law because
I think there are lots of good things in there for people
who are trying to be good actors.
They're trying to behave themselves, conduct themselves in
a way that instills trust and confidence in the voters.
A lot of us learn those rules young in life and a lot of us
, big overgrown Eagle Scouts standing in front of you, we've
never stopped thinking about those rules.
We're a 10 year old Girl Scout and we go over those things
on a regular basis because if she forgets everything else,
she'll eventually remember those laws.
Well, yours has a lot in common with that.
Don't know how it was drafted.
I know the mayor who was there when it was adopted and
signed and the former city attorney.
Is that enough?
Do you need another resolution?
Do you need another policy?
Or is that not going far enough?
Is your recommendation going to be there needs to be an
ordinance.
An ordinance is actually law.
An ordinance can trigger all sorts of things, including,
you know, expending resources, fines, penalties, hiring of
people, firing of people.
It seems to me, and you all can argue with me in a moment,
beyond the scope of your charge for this group to write an
ethics ordinance.
But certainly you've had enough discussions and a lot of
you have done your own research to where you've gathered
enough information that's be good to go into an ordinance.
And maybe that's the next step.
But if you want an ethics ordinance like Plano or Fort
Worth or San Antonio or San Marcos or the other cities that
have them, that could be something that is done and a
process and procedures are set up for that.
That might be your recommendation.
Or the fourth one, which is what we're really charged with,
is the charter. What do we do about the charter?
What you have right now is basically state law.
The nepotism provision adds a little bit.
You can leave it there.
You can recommend it be repealed.
I hate saying repeal and replace, but that's where we are.
That's where we are.
Do you want to recommend that your charter language be repe
aled and replaced with something else?
Is it replaced with an ethics ordinance?
Is it replaced with a charter provision that requires an
ethics ordinance?
Because as a municipal lawyer, I tend to view a charter as
two things.
It establishes the basic framework for your government,
which is different than Dallas or Fort Worth or Plano or
Richardson.
It's your government, your charter.
The voters have given you these powers and they've held
back these other powers for themselves.
That framework for your government is the key part of a
charter.
Another part of a charter is limitations.
There may be things that state law allows the city of Dent
on to do, but the charter prevents the city of Denton from
doing.
The third part, which is probably most more common, is it's
an enabling piece of legislation that was voted on by the
voters.
It specifically empowers the city to go and do this.
And as long as state law doesn't prohibit it, the city can
do what its charter allows it to do.
And 1,200 cities in Texas, 450 or so, or Home Rule, 450
different ways to do it.
I don't know what other charters you all have looked at in
other charter language,
but if you looked, you've probably seen a lot of different
approaches to the same problems.
One thought is if you feel like the mandate from the
council and what you're hearing from your fellow citizens
is such that you need to have more ethics rules in Denton
than you can consider.
Adding a line that says the city council may adopt an
ethics ordinance.
That's easy. It's one sentence.
You could do a similar sentence. The city council shall
adopt an ethics ordinance.
And what goes after that?
You can stop there. You can say, and appoint a charter
commission or just leave it to the ordinance to decide.
How much guidance do you think the voters of Denton want to
give the city council on what's next?
Now again, speaking as a lawyer, I like things to be clean.
So well, gosh, can we do a double?
A proposition to adopt language in the charter that
requires the city council to adopt an ethics ordinance and
repeal the two provisions you already have in the charter.
So that everything is in an ethics ordinance. That's clean.
It's neat. It's tidy.
Your ethics ordinance should put in what the penalties are,
the enforcement provisions. That's nice.
Now, will the voters do that? You can have a joint
proposition now. You used to not do that.
But now we can have joint propositions. Maybe that's
something to do.
Or maybe you leave the charter as is and the council just
adopts an ethics ordinance.
Because it's my opinion that nothing about your current
charter prohibits the council from adopting an ethics
ordinance.
I think legally they can still do so.
It's better, it's preferable, if you have language in the
charter that gives them the power to adopt an ethics
ordinance.
It kind of bolsters that power. But I don't necessarily
think it's necessary. It's just more ideal.
Joe?
Allow or empower or they shall. Must.
That's one of the questions because they could adopt an
ordinance now if they so choose.
There's just been no movement.
And I, you know, the council's position on the charter
ethics provisions or the notion of having an ordinance,
that is not information that I'm privy to.
And I purposefully stayed away from that because I don't
really, I don't know their political desires, ideals or
limitations.
I'm hired by the city, but I'm here to help you guys right
now.
Oh no, you're hired. I want to make that clear. You work
for this committee.
Yes, sir.
You're being paid to the city apparatus, which you're
really working for the committee in total.
So and I want to rephrase my comment.
So I want to rephrase in the comments and say, Alan, is
there anything in our charter right now, presently, that
prohibits the city council from writing an ethics ordinance
?
I don't think so.
And again, I have not talked to Ms. Burgess or anybody else
about prior interpretations.
So I'm just kind of going on my own here.
I think if I were someone that was opposed to that, I would
say, well, we need enabling legislation.
We need the voters through the charter to tell us that we
can adopt an ethics ordinance.
Or, again, lawyers doing what lawyers do, I could look at
it and say, the voters have already given you the two
ethics provisions they want.
And so don't do anything else. State law covers everything
else.
If the voters wanted you to have more ethics power, they
would have given you more ethics power.
To do anything else is to go beyond the charter, go beyond
the voters, possibly conflict with the charter.
And so that's why I say, my ideal as a municipal lawyer
would be to have at least a little line in there saying,
shall or must adopt an ordinance.
That gives the council, first of all, some political cover,
because you can't ignore the politics of these kinds of
issues.
My gosh.
So yeah, you can't ignore the politics of these kinds of
issues.
And also, you know, the council may want that push.
They may need that push.
Or maybe because I don't do politics, y'all can do that.
The voters need to have something on some future ballot
that they can click yes to that communicates the city hall
how the voters feel about ethics in city hall.
And so you want to give them that avenue.
Well, what I'm always going to recommend is that the
charter be as lean and mean as possible.
You know, whether I'm doing my adjunct professor work or I
'm being a lawyer or whatever, you look at the US
Constitution over here with the Bill of Rights and you look
at the Texas Constitution over here and you get nauseous.
Because there's something in it for everyone.
Every special interest group for a zillion years has shoved
something in there and the legislature is constantly
putting before the voters who may or may not be informed to
amend our Constitution.
Well, your charter is kind of your Constitution.
So I'm always got a bias.
Less is better in the charter.
If the question were posed to me, should this group write
an ethics ordinance and then turn it into a proposition
that gets voted on, on a ballot to go into the charter, I
would urge you to be very cautious of doing that.
I think it's a hard thing to do.
It's a hard thing to draft.
It's a hard thing to communicate to the voters.
And it's a hard thing to administer because no matter how
well you write an ordinance, there's going to be some
problems with it.
And charters can only be amended, as you know, every two
years.
And they're difficult to do that.
And so, you know, what you choose to do is going to be to
be on you.
And I'm also always going to caution folks to start off
fairly simple and get more complex as time goes on.
I mentioned Wimberley to you.
One of my final stories before we get into more question
and answers is when the newly created village of Wimberley
was incorporated in 2000, one of the first things they did
was one, an ethics ordinance.
I thought that was ambitious for a town that still hadn't
gotten zoning or subdivisions or signs or the other things
that cities need to regulate.
I said, well, I've done a lot of work.
I've written papers for the City Attorney Association.
I've sampled ordinances across the state.
I've got kind of a package of samples.
Why don't I come up with a draft that I think fits a town
of 2000 people and then y'all can tweak it and modify it.
No, that's okay, lawyer boy.
We got this covered.
We got the mayor's blue ribbon panel on ethics.
That's pretty impressive.
Sounds good.
Someone from the school district, a local reverend, a local
realtor, retired teacher, big property owner.
You have some very influential citizens sitting at the blue
ribbon panel and they wrote their own ethics ordinance with
no legal guidance at all.
Professor from Texas State University in southwest Texas.
Very smart people.
Then a week before it goes to council, they call a meeting
to approve it.
And the week before that, they give it to me to review just
for the lawyer's blessing.
And I know staff loves when that lawyer blessing thing
comes along at the last minute.
I look at this ordinance and I appear before their ethics
blue ribbon panel and as an illustration of what they've
done,
I pointed out how incredibly strict this ordinance was.
But under their proposed ethics ordinance, if they had a
janitor, a custodian at night who swept up and they were
from a vendor,
there's a contract custodial firm, I don't doubt any cities
have employees who sweep up anymore.
It's usually a vendor.
If that janitor at City Hall had a spouse and that spouse
had a mutual fund and in that mutual fund was some Dell
stock,
that ethics ordinance would prevent the village of Wimber
ley from ever buying a Dell computer.
No matter what the bid was, no matter what the technical
specs were, it would completely take that off.
And I can't see how a janitor's spouse's mutual fund has
any effect on transparency or integrity at City Hall.
And so I was cautioning them that they may want to ratchet
it back a little bit because I thought it was a little un
workable.
So the heading, it's a weekly newspaper out in Wimberley,
the heading front page of the Wimberley newspaper, the next
issue,
city attorney opposes ethics ordinance.
Did I mention I'm the former city attorney of Wimberley,
Texas?
It was a good run while it lasted, but it's hard to come
back from that.
And I think some of you are going to be in that position. I
think the city council is going to be in that position.
Politically, it's a very hard thing to do to oppose an
ethics ordinance, even if you're opposing it because of
some of the specificities, some of the nuances.
Because in my experience, I'm sure you've got a university
here, you've got a very engaged, educated electorate.
But often there are voters who don't do nuance and they don
't understand the finer points.
And so if you're going to draft an ethics ordinance, I
recommend that something separate and apart.
But you decide what to do about your charter. And I've
given you a couple of options there.
So that's all the prepared materials. I'm yours for
question and answers.
>> Let's open up for some hard questions.
>> No, that could be hard. Softballs are okay, too.
>> To the extent that you're aware, is the North Dakota
legislature unethical budget people?
Or was there something about the voters' ethical law voted
in that was untenable in terms of legislative?
>> Sorry, I have to plead ignorance on that one. I'm just
not familiar with it.
>> You're aware of what happened, right?
>> No, sir, I missed that.
>> Okay. The people of North Dakota voted the ethics law
into effect.
And the legislature is apparently calling it an emergency
to discount it or to toss it aside.
>> Well, we know all about initiative and referendum here
in the Hittin, so we know how that goes.
When we have voters give us laws.
Sure, David, did you have something?
>> Oh, yes. Two questions. They're actually kind of related
.
You made the comment that I was kind of intrigued by your
comment that as there's a decline in public trust, there's
a rise in ethics ordinances.
Now, those two metrics are either related or they're not.
If they are related, then that would kind of suggest that
ethics ordinances in general are kind of irrelevant.
So the second part of that is we all know it's kind of a
cliche that ethics ordinances do not create ethical people,
but they may influence an ethical culture.
In your experience, does at least -- do ethics ordinances
at least kind of up the ante a little bit ethically in
those communities?
Even if they don't, they're not perfect. I get that.
But does it improve the ethical climate or the culture in
some way in these communities that have already enacted
some of these, more comprehensive?
>> I think so. And I'm not anti-ethics ordinance.
I just don't know that the public's distrust is going to be
remedied by adopting rules.
It's possible that adopting rules will in fact increase
ethical behavior, but you don't see that reflected in
public trust.
A lot of folks theorize -- I mentioned the federal thing.
A lot of folks theorize that so many citizens are so upset
at the federal government that we feel that at City Hall
because they can't effectuate the federal government very
much.
But they know who their mayor is, their council member, and
they actually know who the city manager is.
And so they take it out on those of us local.
I know in my own experience, anecdotally, I've had to sit
through council meetings where during a citizen comment
period, we're getting griped at by citizens.
And what they're really griping at is not a municipal issue
at all.
It's a state or a federal issue.
But they can't find someone in Austin to gripe at, but they
know city council meets Wednesday nights at 7 or Tuesday
nights at 6.
And so even though I don't think there's any study that
shows that correlation between more rules means more trust,
maybe we get more behavior.
I mean, the whole thing goes back.
People trace the increase nationally in ethics rules to
Watergate.
And in Texas, they trace ethics rules on open government
rules to the Sharpstown Bank scandal, which again was state
legislators, not city officials, not school board trustees.
And so more and more rules get adopted, but yet public
opinion polls keep going down.
I think having a few standards is a good idea.
I'm very much in favor of professional ethics standards for
lawyers, planners, and everybody else.
And then of course, that five-pronged approach to trying to
get City Hall to be a place where folks trust at some point
that I may not know what's going on at City Hall,
but I trust that they're doing their best and they're not
trying to enrich themselves so I can worry about my kids
soccer game or something else.
To me, that's the goal we should be working for if we
accept a public position.
If I could ask one more real quick, unless there's
something else. Of all of the state penal and conflict stat
utes that you mentioned that are still there and may still
be enough to protect us,
we all know that local district attorneys are never
politically motivated.
But you mentioned the Texas Rangers a couple of times. How
does that work in terms of investigation or prosecution of
any of these flakers, something flakers?
Well, usually when it's a public official, which could be
an elected, it could be a city planner.
It's usually going to be someone goes to complain to the DA
's office and the DA's office will have the Texas Rangers
investigate.
Some district attorneys have their own staff investigators
that do it for them.
Usually they're police officers that are working as the DA
's investigator, but some counties don't have that resource.
For elected officials, it's quite often the Texas Rangers.
There's been times where I have been ordered by a majority
of the city council to take my file and go and drop it on
the desk of a district attorney's office because a former
city council member stole money, theft of service and
utilities, something like that.
Most DA's, most, I've actually had Texas Rangers tell me to
my face that when it comes to politically charged high
profile elected officials,
they will not do a full investigation unless they first get
from the district attorney a letter that says, if you bring
me back evidence, I will prosecute.
Because the Texas Rangers have gotten tired of getting
caught in political fights between local officials and DA's
.
And so you're right. I mean, that's an ongoing issue in
Texas right now. We used to have the public integrity unit
in Austin, based in Travis County, Texas.
It was accused of being too partisan in its politics. So
now the legislature has fractured that out back to the
various district attorneys across the state, unless it's
Austin officials.
So it's pretty much discretionary then with the DA, I guess
.
A lot of discretion rests with the district attorney's
office for these offenses. Yes, sir.
Open meetings, open records, it sometimes is the county
attorney if that particular county attorney has criminal
authority.
We'll get Mr. Sullivan and Mr. Eaton.
It seems to me the idea of the level of trust and the
number of ethics rules and so forth, to me, can be
explained very simply, whatever you see on the one hand.
Gifts, awards, and Mentos, okay, if under $50. And then you
give the example of taking a limo to AT&T Stadium where the
tickets are more than $50.
The limo ride is more than $50. The meals are more than $50
. Everything about the whole trip individually is worth more
than $50, yet they could do it.
And I think when the public sees those kinds of things,
they're saying, so what's the point of having these rules
if you can break them, if you can drive the limo through
them?
And I think that's really, I think what the general public
sees is, I mean, locally we've seen that firsthand, and we
're thinking, well, why wasn't anything done?
And, you know, like from the real estate aspect and other
things. So it's just how do you get those two together
where you don't drive the limo through it,
and I guess you get to, like you said, where the janitor's
wife's mutual fund thing, I don't know.
There's gotta be a happy medium somewhere where those can
work in the same world.
Well, you know, I can tell you that I have served cities
where city councils, granted these are smaller cities, they
're not as large as Denton,
where city councils have put it on an agenda, convened a
meeting, and publicly out in the open reprimanded a mayor
or city council member for public conduct that the city
council deemed to be improper and inappropriate.
And there was no ethics ordinance. There was no written
local rule that said, thou shalt not be a jerk to city
staff.
But after this mayor had come in and yelled and hollered
and threatened and been a bully to so many city officials,
the city council decided we can't operate our business with
this thing going on.
We don't need a written rule. We're going to give you the
public shame on you in the form of a written resolution
that's passed.
And I've seen that in multiple cities with no ethics
ordinance.
They just knew it.
It doesn't even have to be a charter provision.
No, these are towns too small to have a city charter.
I think that it is fully within their authority to do so.
And I think the city of Denton can do that.
In part, it's politics.
In part, it's a public statement of values and priorities
and characteristics we want to see in our public servants.
But then I have some folks who said, well, gosh, if I can't
find it in writing, then I can do it.
And who are you to accuse me of it?
So, okay, well, then they get lawyers to write rules.
And now, okay, well, they got off on a technicality because
some lawyer found an exception to the rule.
Well, you know, what are they accused of having done?
Oh, they're accused of having disclosed something to a
citizen.
Well, was it confidential?
No, but it was private.
Okay, I don't know what private means.
I don't know what confidential means.
I'm perfectly fine with -- in fact, I think if you want to
have a more ethical organization, you've got to have more
public conversations about it.
Must they all be accusatory or judgmental?
No.
But you need to have more conversations about it.
You know, back when I interned for the City of Lubbock, I
remember I interned in the trash department.
It was the best job I've ever had in my life, solid waste
management for Lubbock.
And they've got their quarterly safety meetings.
Well, they talk about safety because back then they had
their own trash trucks, people hanging off the back of
trucks, ran a landfill.
That was a big deal.
That was an excuse to bring in everybody, park the trucks
for a little while, coffee,
donuts and orange juice.
And what they really did was talk about their values as a
department.
And back then, they hired an outside company to come into a
survey.
The highest job satisfaction of any department in the City
of Lubbock was a solid waste department.
The folks not only were the most ethnically diverse, lowest
educated, lowest paid, and probably most at risk other than
utilities.
But they had a lot of satisfaction.
You talk about values.
Well, that stuck with me to where I'm coaching cities.
Where's your quarterly ethics meeting?
Where's your twice a year meeting to get coffee and donuts
and orange juice and talk about your values as a department
and what instills the public's trust in you?
So they don't have to see everything that's on your desk or
in your email.
They believe you're out there working for them.
Well, very few of my clients ever had those conversations.
We've talked about the City of San Antonio, which again, it
's got a huge infrastructure.
I don't know what they spend on their ethics ordinance.
But they have routine training.
Every new employee has ethics training.
Every new council member has ethics training.
Periodically, they have to go through ethics training.
Is it going to be the online DVD or is it going to be in
person?
Each lawyer that covers each department head is trained in
the ethics ordinance and is that department's ethics
advisor and answers, you know, behind the scenes ethics
questions.
Can we do that?
Should we do that?
So I think a lot of ethics complaints don't rise to the
level of a complaint anymore because they've put together
this infrastructure to deal with this issue in San Antonio.
But it's broad.
It's comprehensive.
It's undergone lots of changes and it's very expensive.
And some citizens are still not pleased with it and want to
amend the charter to change it.
Mr. Eaton. Yes, sir.
We have in place a policy right now and I guess the
question I have is who gets the policy applied to because
it says elected officials and appointed officials, boards
and commissioners.
And then it says they must adhere to the following Texas
statutes and they give all the statutes.
So my first question is, in your opinion, who are elected
and appointed officials?
So the aspirational part talks about cities, boards and
commissions are asked to subscribe to Texas statutes, the
charter, the rules.
I'm looking at the most recent version.
So what I'm looking at, I'm sorry, it says elected city
council members as well as appointed members of cities,
boards and commissions.
See, and then on page two, it has something different at
the bottom of page two.
Elected officials, appointed officials, boards and
commissions.
It seems that there's two separate possibly three separate
classes there.
Yeah.
I know. Normally I think of appointed officials as city
council members who are appointed to fill a vacancy if you
're allowed to do that.
And people that are appointed to boards and commissions.
Yes, people are pointed to staff department head levels,
but I normally don't interpret that to mean that I don't
know how this has been interpreted.
I don't know if we have any guidance on that.
My question is, because this is policy, how does that go
back to the charter, which says 171 does 171 apply to
people that are on boards and commissions?
What applies to the city council and it applies to boards
and commissions that I think, you know, exercise sovereign
functions.
So the best example is planning and zoning commission.
Whether or not other commissions are subject to it.
I'd have to look at the commission's membership and what
they do to make that decision.
171 does not apply to employees under state law.
It does not apply to independent contractors.
So that I guess the final piece is the enforcement aspect
of this is actually created by ordinance.
Does it make sense to have an ordinance to carry out a
policy?
The question of having an ordinance to carry out a policy,
you know, you're kind of, you're kind of getting at the
heart of of municipal law.
And I think all of us wrestle with in reality, city
councils are allowed to take action.
One of two ways they can adopt a resolution, which is
really a statement of their collective will is how it's
best described, or they can adopt an ordinance, which is
law.
If you look at state statutes, some of them are
inconsistent about whether an action can be done by
ordinance resolution, or sometimes it says in the state law
, you can do it by ordinance or resolution as though they're
interchangeable.
And I don't think they're interchangeable.
I think you could adopt policies by either one.
I think a policy can be adopted by resolution or by
ordinance and a policy can be aspirational.
Things you hope people will be like and they hope they will
do things, but there's no real punishment because there's
no bright line test no no clear standard.
Or you can adopt a policy by ordinance.
And what I would always going to recommend to a client is
if you're adopting something that you're putting some teeth
into, it's going to cost somebody a position or cost them
money or cost them a reprimand, then I think it should be
done by ordinance.
That's just my preference as a municipal lawyer.
A policy can be adopted either way.
Is it common to have a policy by ordinance?
Oh, I don't know what's common in that regard.
I would I would recommend you roll them into one thing.
And you know some ordinances, I mean, the barking dog
ordinance could have some policy statements at the
beginning as to why controlling barking dogs is important
and why quiet neighborhoods and peace and tranquility and
neighbors being good neighbors.
And then you get to the meat of it.
If your dog's barking after these hours, here's how you do
a complaint.
Here's how you do code enforcement.
Here's how you do punishment.
You go to something more important like ethical behavior.
You could have an ordinance that takes care of all the
policy stuff up front and then gives you some actual rules
cannot accept a gift.
If it's more than $25 cannot accept, you know, sporting
tickets.
If the value is over whatever and then here's the
punishment.
If you do so, part of the difficulty is, especially with
big complex organizations is you or your ethics review
commission might think something is an ethical issue.
But your city manager might think it's a human human
resources issue.
And they want to deal with it because they're the ultimate
boss of these employees.
And I want to deal with it as an employment matter.
But somebody over here has jurisdiction because you created
an ethics ordinance that gives that person jurisdiction.
And that's why sometimes you got to be be careful what
activities are dealt by whom I've seen ethics ordinances
where if there's a violation of this ethics ordinance by an
employee, it's referred to HR.
And now it's in the city manager's world.
If it's a violation by a board commission member or council
member, it goes to the ethics review commission.
That's one way they dealt with that that tension between
internal and external matters.
I think ethics policies are fine.
I think what they've you've adopted here, the council's
adopted here is just fine.
The question is, is it achieving the results your community
wants?
And if the answer is no, well then something more is
required.
And you may not need to go as far as San Antonio has gone
and incur the cost that they have.
But you may want to do more than this.
Yes sir. Mr. Holm.
It's been answered in bits and pieces.
But in those communities who chose to go beyond the state
statutes in order,
what in the general way, what are the either blind spots
they thought they were covering that the state law doesn't?
Or what was it in response to?
What was the reason for?
What was the substance and the reason for going beyond what
's already in place?
And then the second question is, in those communities that
have a structure,
a mechanism outside of city council to review these things,
are those primarily cities that have their own ordinances?
In addition to 171.
Can you restate the second part of that?
In those cases where cities actually have an ethics
commission, some kind of body,
are those cities typically that are operating just under
the 171 and the state rules or do they usually have their
own city ordinances?
So I'll say the second one first. They have a city that
would have an ethics review commission or ethics commission
or board of ethics or whatever.
That's because they adopted an ordinance setting for some
rules and they wanted a body to administer it.
And again, I've seen all sorts. I've seen, just last week
in El Paso,
the mayor and each council member gets to appoint their
member to the board of ethics.
And there are some say, no, that's too political.
So that's why they want to go on their route.
In the city of Bastrop, Texas, that I'm also helping, they
only have a three member ethics review commission and it's
appointed by the entire city council.
So you can have those different extremes.
The first one was the impetus that led them.
I mean, I'm not going to be any help there because it's
just, it's all over the board.
You know, the Wimberley example, little tiny Wimberley,
there was no city there in the past to behave badly.
So it was just at the outset, they wanted to have this
openness and transparency in these rules to avoid problems
in the future.
In other cases, it's just what I've seen more often is they
case by case, they adopted ordinance restricting this or
restricting that or personnel policy dealing with this.
And all of a sudden they realize they've got them all over
the place, we consolidate them now into an ethics ordinance
.
I have seen communities that have said we understand state
law and we get it and we know the DA is out there watching.
That's not good enough for us.
We're better than the state law minimums.
We want something tight.
You know, I dealt with a board of ethics where the chairman
of the board of ethics who is now being charged with
reviewing their ordinance, he was a retired rear admiral.
And he had gone to Annapolis.
And he's like, Alan, you know, what's the code?
Oh, a cadet shall not lie, cheat or steal or tolerate those
that do.
That's exactly right.
Why do we need a 40 page ordinance when that was good
enough for us back in Annapolis?
I was like, well, that's a very fair question.
Let's spend some time talking about that.
And once you got in through the details, he understood why
more specific rules were helpful and they amended their
ordinance.
The council voted on it without changing a thing and there
it went.
Lied, cheat or steal.
As a police officer stealing when they accept a free meal
from a restaurant.
To me, that's not clear.
And I'll bet you absolutely no police officers chime in.
I bet that's happening at cities all across the state.
Police officers and firefighters getting comped meals a lot
.
Does that make them unethical people?
Are they likely to perform their services different than
they would if they paid for their meal?
I've seen no indication it would.
But boy, that one at this commission I was at was not
having any of it.
I don't like the way it looks.
I don't want restaurateurs to feel pressured to do that.
We pay our cops enough to buy their own meals.
So the whole cadet shall not lie, cheat, steal or tolerate
those that do doesn't fit that scenario.
And while I don't think you can ever craft an ordinance
that fits every scenario, you can hit on the big themes and
then fill in those holes with training and professional
standards.
To let folks know that, yeah, maybe I could do it, but I
shouldn't do it.
It ain't going to look right.
It doesn't feel right.
Did I answer either one of the two questions?
Pretty much.
I mean, I realize there wasn't an easy answer to it.
But I just, you know, trying to balance between so often
organizations that have governing documents, you know,
changes are reactive rather than a response to something
larger.
The next thing you know, we'll make sure this never happens
again.
Next thing you know, you've painted yourself into a corner.
And so I'm just trying to get my head around what it is
that we don't have yet that we need to add.
That's my question.
The janitor's wife's mutual fund scenario is why I'm always
going to recommend if you all do this and maybe you're on
the committee that eventually drafts it, you know, make
sure you've got a waiver clause.
Make sure there's a way to get out of the ethics rule, a
procedure for doing that, because sometimes the rule will
make no sense.
It'll make no sense at all and you want to have that bypass
mechanism.
It's not a loophole.
It's a process because no ordinance that we can draft is
going to make sense.
And if an ordinance is achieving a ridiculous result, there
should be some sort of safety valve built in.
And you can ask the city attorneys if you want their cell
phone numbers, I'll give them to you, of Plano and San
Antonio and San Marcos.
And they'll tell you, yeah, no matter how proud we are of
our ordinance, there's always a scenario that comes up that
puts us in a corner.
And we wish we had a way out, which that's why San Antonio
does have a waiver provision in theirs.
I'm sorry. Yes, David.
For Denton or any other city that was trying to decide
whether or not local state law will be enough or they need
to go beyond.
You mentioned, you know, DA out there watching, is the
actual history of a prosecutor's office relevant to make
that decision?
I mean, if you see what I'm, if it's never happened, I mean
, suddenly what's going to change?
What's the game changer there if City X has decided, well,
we're going to go with state law if you'll help us.
So is the local DA's history of enforcement a factor to be
considered in deciding on whether or not your city should
just rely on state law or go and adopt your own rules?
You know, I've seen DA's change too many times.
I mean, it used to be that my sense was DA's do not want to
be caught up in local politics.
The voters put this person there on city council or on
school board.
I shouldn't be getting cross with the voters.
I haven't seen that for years.
What I've seen lately is I've seen DA's across the state
are actually looking into these matters and the Texas
Rangers are investigating.
It's been tough when, you know, the local Texas Ranger is
really in charge of doing that sort of thing.
The public integrity aspect of the business is reassigned
to the border.
I've had to deal with those sorts of things.
It's an asset allocation challenge where the Texas Rangers
are going to spend their time dealing with the local ethics
issue when they've got bigger problems,
mandates coming from above to deal with, and the DA is the
same way.
But no, I mean, I don't know.
It's an old mantra from my municipal court prosecution days
.
The process is the punishment.
Sometimes that is the case.
Even if you get off, you go to trial on that speeding
ticket and you get off, usually your prosecutor is going to
go, oh, well, I don't care.
I still made them show up.
They had to take two days or three days off of work to show
up.
They had to put their case on before a jury.
The jury didn't buy my officer.
Oh, well, I bet they're not going to speed here again.
And most of the times they don't.
I think being investigated by Texas Rangers or taken before
a grand jury is enough to make most folks not do it again.
But again, there's, you know, righteous people are not
going to let themselves get caught in that trap.
Sloppy people are.
I think a sloppy person is caught in the trap is unlikely
to do again.
The hardcore bad actors who just think they're above it all
and immune from it all.
Nothing is going to teach them and no ethics ordinance is
going to deter them.
I have council members right now that I represent whose
families own big chunks of property.
And while they'll do the proper thing and abstain from
deliberations at the dais, when a vote comes up, they are
really still behind the scenes at City Hall,
gathering as much data and influencing the process as much
as they can.
So their family can maximize their return on this
development deal.
And there's no amount of ethics rules, ethics policies,
ethics commissions that's going to change that person.
And the voters put them there not once, but twice.
So we just kind of sit back as city staff and go.
What can you do?
Sure.
Mr. Alexander first.
And the issue too is that the D.A. and the Texas Rangers
are likely only to become involved in a case where there is
a criminal statute in question.
They're not going to be investigating very much if it's
simply a violation of a policy.
I think you're right about that.
They don't really care about your local rules much.
Although I have actually seen a D.A. take a local rule, a
city's ethics ordinance, and try to bootstrap that into a
state law violation.
And I thought it was a very tortured interpretation.
What does our personnel policy have to do with your
investigation of a state law offense?
But I've seen them do it against someone in city management
.
And it was uncomfortable for me because I disagreed on
their approach.
They don't care.
One thing they do care about is, you know, there's been
times when, I mean, I'll tell you folks, there's been times
when a citizen so hates that this deal is being done,
whatever it is.
Permits have been approved, contracts have been signed,
whatever.
They hate the outcome that they're getting from City Hall.
So they file an ethics complaint at City Hall triggering
the ethics ordinance.
They go and file a complaint with the district attorney's
office and they go to the media, which is kind of the uno
fficial third enforcement arm over here.
People will do a lot to try to avoid being accused or
questioned about something in the front page of a newspaper
.
And I've tried to guide the city through that kind of
scenario and I get phone calls from the district attorney's
office saying, I know you're looking at all these
complaints.
You go ahead and police your ethics ordinance.
We're asking you not to touch the state law stuff because
we don't want you questioning witnesses about things that
we're going to be questioning about in a criminal context.
We don't want cross contamination.
We don't want you polluting the witnesses.
We don't want this in the media to affect future jurors.
And so we actually are being told by the DA to not look at
the earlier slides I showed you that are state law
violations that are all included in the complaint.
The citizen included those things.
Dear Mayor and Council, your person did this.
Investigate them.
And so my response from the council is we do what the DA
says.
We're not going to bite off a fight with the DA's office.
So we're going to decline.
And that's why I think there's another good idea to have a
process if you have an ethics code, have something in there
to abate or temporarily suspend any sort of ethics review
if you know a criminal action is being investigated
elsewhere.
And I'll go back to the notion of an ethics review board
reviewing what is in essence an open meetings act violation
.
The legislature gave us a process for that.
Let that run its course.
It is what it is.
You focus on the stuff that the legislature did not do.
And that's my recommendation.
Yes, sir.
Mr. Eaton.
So along those lines, I know in our policy we have all
those civil statutes listed out.
Yes.
And then of course we have 171.
So I guess my question is, where does section 145 fit in
all that with the reporting of the physical statements, the
financials?
Because the city is taking in all the financial statements.
Who, I guess, if we're listing all those things in our
ethics policy, should that not fall in there as well?
I think you could.
I think that's an option for you.
I don't think it's required.
Just because the state has put you in the business of
collecting and storing these forms and sometimes submitting
them, rendering them back to the state, I don't think you
have to do that.
I see where it would make sense to do so because you lifted
these other things.
But then, you know, this is kind of like me telling my
client, you must follow the law.
They already had that requirement to do so.
Me telling them didn't really add anything other than maybe
an educational component.
I still don't know that this gives anybody at the City of
Denton the ability to police these things.
And so, you know, I'm always going to recommend you just
look at state law.
Does it achieve the results you want?
What's lacking?
Is it education?
Is it enforcement?
Or does the state law not go far enough?
And for those who are convinced state law doesn't go far
enough or they think no one's enforcing state law, whether
you can create your own provisions that are as tight or
tighter than state law.
If you're going to do that, then, you know, there's a
resource allocation challenge for you, but y'all can meet
it.
145, I think it's an option. It's not required.
What do other cities do in initiating newly elected council
members and boards and commissions appointees in regards to
ethics training or indoctrination or tutorial?
Some cities will have an actual in-person training video.
I'm sorry, a training session.
Some of them will videotape it for those who can't attend
and make it available to them otherwise.
A lot of cities view the orientation of new members as
being a task for TML or, you know, North Central Texas COG
or someone else to do and spend the money for them to go
off and get their training that way.
Certainly there's lots of people who offer newly elected
officials training seminars.
Others take it on in-house and that's an in-house function.
For sure, it usually covers open meetings, open records,
how does the city function, what are the policies of the
cities, and if you have an ethics component, that's
included in there.
I think that's a good first step.
It's amazing how many times you can just Google certain
ethics complaints about newly elected officials not taking
their ethics training and what people are really referring
to is the required open meetings, open records training,
which is another state law requirement.
Let me ask Aaron and Brian.
What do we do as the city of Denton as far as the
introductory tutorial to city council members or board and
commissions appointees as far as the ethics and the law
requirements, legal requirements?
I know with respect to all the appointed boards and
officials, especially like the PNZ and ZBA that do have
final decision making authority, we conduct a separate
orientation with them, which among one of the topics
discussed is ethics and we talked with them about that.
As far as the council, new member orientation for council
members, the city attorney's office has our own in addition
to the city management's orientation and that's another
topic that is covered within the orientation itself.
It's more we're trying to get to the laws that most
commonly get implicated while they're serving, which is the
conflict of interest and the nepotism and we give that
tutorial and then we also offer them documents that they
could read to be able to determine or to more fully know
about ethics, specifically the conflicts of interest and
the nepotism.
Thank you.
Thanks to that we always have an orientation as Aaron
mentioned with the city manager's office, the attorneys, we
go through lots of different things with new members.
And most of our new members go to the TML, the Texas
Municipal League newly elected member orientation, and they
have a series of sessions that they go through and learn
about all kinds of different things so that's typically the
process we've used.
Thank you.
Yes, Miss Ramsey.
It's on trust really interesting and this may be a little
bit of a side issue but what have you seen cities do in an
effort to increase the trust of citizens.
Is it ethics or is it something else.
The thing I've seen most recently for cities trying to
increase trust is moving toward more transparency, which is
really more of an open records open meetings thing.
But it's, it's a response to that notion that decisions are
being made at City Hall, and we the electorate don't know
why we don't know what.
So even though they could be an executive session more
often, they're not even though they could withhold some
records they try not to.
I see cities big and small spending more and more money on
technology for you know laser fish and all these these new
things to get more data uploaded to the web, where people
don't even have to file open records requests.
They can search a lot of it themselves and the city never
even tracks that they were there. That that's a little bit
more expensive, but I see a lot of that and in part because
I see new elected officials coming in on a transparency
platform.
And then they have to realize what that really means. Often
the city in my experience is fine with most of the records
being sought. It's the process of doing it.
And so, particularly large cities are, you know, creating
whole new sites or new aspects to their sites, just to push
more data out there.
I don't know if it's going to have the intended result or
not.
Ethics reform, I don't see a lot of as an effort to do that
.
Sure.
Yes, sir.
So, I guess my question is, does the person have to receive
10% prior to your from that business entity, and then the
conflict mattress comes into question, or are they looking
at the current time, and we say okay that has to exceed 10%
of whatever was made last year.
My understanding is that with what you reported as your
gross income the previous year, if more than 10% of that
came from this entity, then when that entity comes before
you the following year, 171 is triggered and you're
prohibited.
That's right.
Well, I'm just thinking about how that works in practice. I
think several of us have had some concern about that.
But what about a project that you might be voting on, from
which you got no income, because the project didn't even
exist in the last tax year.
Now you've got a project that you're working on, and you
still haven't had any income yet.
So you can still cast your vote on that project without
violating 171.
If you still have yet to receive income, is that not the
case.
That's the case I think if it involves real estate, then
you've got the $2,500 threshold that triggers in, because
it's an either or with that list, it's not all the above.
Because you do have that separately dealing with plans.
Yes.
$2,500 with plats, $2,500 under 171 also. So whether it's a
plat issue or anything else, if you own $2,500 worth of
that real estate, you've got a 171 conflict, even if it
didn't generate any income the previous year.
So I kind of asked this earlier, what if your property is
next door, and the project you're voting on increases the
value of the property that you own, or your broker or
whatever, and there's no transaction happening today or in
the next year.
This project is going to make this land more valuable, and
I'll sell it in 10 years.
That income isn't realized, but the value goes up and it
wasn't income that's realized. And I think some of those
types of things are what's come up around here recently,
and probably doesn't violate anything in here, but it just
doesn't look good to the community.
And that's where I think some of our, how do we have some
teeth in this.
It doesn't look good, it smells bad, we have some questions
about what's really happening here, maybe I'm not getting
money today, but it's going to help me over here down the
road, and that's where we're getting into, if I can put
words in everybody's mouth.
Thank you.
It doesn't violate any laws, but...
If it affects your property different than it affects
property at large, your neighbor's property, then there's
an argument that 171 does kick in, because you own property
that's valued at more than $2,500, and you're voting on
something next door, it's going to affect your property
more than another, and therefore you should follow the aff
idavit and abstain.
It's to cover that sort of thing that the AG's office,
attorney general's office used to use the 200 foot rule, in
which case yours would be triggered.
You're not voting on your property, you're voting on the
property next door, but yours is going to be effective
different than the public at large, therefore abstain.
When they get away with the 200 foot rule, now it's a case
by case basis.
The smart play is for you to abstain, so you don't have
these ethics allegations.
Or, you go ahead and vote and take the risk under the
ethics allegations.
But certainly, that's the kind of scenario where people
might feel motivated to adopt ethics ordinances that go
beyond this.
Exactly.
And abstaining in general is, and abstaining from
conversation, and read right to the didn't, it's voting.
I think what it really means is discussion at the dais,
voting at the dais, and I would say don't go grab the
podium and try and influence it from there.
What I wish people would do is just stop talking about it
all together at City Hall.
Don't go back to the city manager's office and talk about
it.
Don't go to the city planning department and talk about it.
It says abstain from participation, but there really are no
opinions going that far.
Participation could be in the city manager's office or
council person at the coffee shop or an attorney up in
front of the public.
Yeah.
If you're truly going to be an ethical person, you're not
going to try to influence that action either way because
you know it's going to affect your bottom line.
But there's no case or AG opinion I know that takes it that
far.
What if we indent added language in an ethics ordinance
that clarified that point, that participation means more
than voting.
Participation means being actively involved in discussions
or considerations or lobbying for approval of X, Y, or Z.
As a city staffer and other communities, I would appreciate
that.
Just because I see the pain on the city planners face and
the deputy city managers face when they're having to deal
with questions from a city council member about property
that's clearly covered under 171.
And that council member does all the right things during
council meetings.
Oops, it's my issue.
I got to go y'all.
I'm going to get some coffee.
But behind the scenes, they're bugging staff nonstop over
it, trying to either get information or they're trying to
put their thumb on the scale.
And I don't think state law gives us an answer on that.
So I caution folks go above and beyond so people don't
think we're doing self-dealing.
That's the exact kind of thing that an ethics ordinance
could take care of.
And your staff would probably appreciate because that gives
them an out.
Absolutely.
When they're feeling pressured by their bosses to cooperate
, when really they don't feel right about doing so.
[INAUDIBLE]
I think you can sign one affidavit declaring one interest,
file it with the city secretary, and it'll cover you
regardless of whether you're on one or more city boards or
commissions.
And you have to identify what the interest is and what it's
a conflict with.
But once you've done that, I think you've done your duty.
If it changes, then you'd want to file a new one.
Yes.
I think we are having a lot of good discussion about what
we could see and what could happen.
But I think we should go back to our initial charge and
decide as a committee what exactly we should be doing here.
If we should be adding this language to the charter or if
we should just be adjusting the language to do the
ordinance or whatnot instead of getting into the weeds of
exactly what it should say at this point.
That's just my opinion.
At some crossroads, we'll have to decide if we want to
amend the charter or change the language, we've got several
ways to keep it lean and mean and then recommend that an
ordinance be written or not.
And then with that recommendation, we can be proscriptive
of what we think should be included. Item X, Y, and Z. And
here's some specifics that need to be addressed.
So we will have an opportunity in a narrative form to
forward to city council what we perceive as the rough
playing field and how it could be smoothed out in the
ordinance.
But still make that would be beyond our original charge of
what do we want to do with the charter.
So we would take care of the charter, but we have the
latitude to make a recommendation on the ordinance and what
it could contain and what problems it could solve that have
been brought up.
I want you to bring up the slide that you had right before
this one, what the charter or our charge is.
Because to me it says to revise the current provisions to
replace with alternative ethics provisions.
It seems to me like that's it to revise any other charter
provisions. So is that not asking us to get in the weeds?
It's asking us whether to decide to hear what matter.
Whether it means whether we should or shouldn't.
We decide we should, but do we want to do it?
So the first thing is decide do we want to have ethics
ordinance if we say yes we do so what's the matter and then
revise the provisions to replace conflict nepotism with
alternative ethics provisions and revise any other
provisions.
So isn't that telling us to add this language or not? I
mean it's a question.
Joe what do you see?
Well, I'm looking at it as the weather.
It doesn't say go out and change it. Weather and in what
manner. So it is to consider and advise weather.
So that's why we're trying to be deliberative about it and
really the charter language as we've been advised is you
want to be careful with it. You're not going to write
something that's overly burdensome that you have to come
back and revisit every two years.
We just need a platform and you know Allen's has suggested
that we keep the charter minimal.
But we can open the door for counsel. We can say you shall
write an ordinance and then we can.
Then beyond that we can make a recommendation of what an
ordinance can include. But the charter language from what I
'm hearing and what I'm reading we would keep that lean and
mean.
How I'm reading this charge from the council is to the
weather. We could say well we think you have everything you
need right now as written to operate on an ethical basis
and reprimand anybody that doesn't comply with that.
And if it's a criminal deal go to the DA. You could make
the case of do nothing. So that's where we are is the
reason for empaneling a group of diverse citizens is to
really hash it out.
Is it too little too much? Where's Goldilocks? What do we
think the community needs?
And remember whatever we recommend council has to vote in
the affirmative to put it on the ballot in November.
So it has to be something that's not on either extreme. It
has to be meaningful, practical, and acceptable and
sustainable politically with the community.
And so I'll digress a little bit from the ifs and ours and
weathers to the overview is somehow and you all have your
different experiences but the sense of trust in your public
officials has been forfeited and squandered.
And what we need is to develop the tool and believe me it
will not be instant oatmeal but this exercise to build that
bridge back, find a way that opens the door again to
transparency and expectations of behavior from your elected
and appointed officials and communication about it and
rebuild that trust.
Because you can write an ordinance 100 pages long with lots
of fine print but if you have the wrong people elected to
office they will find a way to circumvent whatever letter
of the law you have.
But we have to respond as a committee politically to the
fact that the trust has been dissipated. The connection to
the community that your elected officials should have is
right now is down in a hole.
And I think through this group if we come back and decide
that the ordinance is an answer to rebuild that trust and
to link that ordinance we would if we do adjust the charter
to say that you shall have an ordinance and it should
contain such and such.
I don't know how much we do that in an actual charter
language versus here's the charter language you recommend
and here's our recommended elements of an ordinance that we
think council you should very much consider.
So we've developed the path and I just think the community
is going to want more than just saying we're leaving the
charter alone.
And that's the predicament we're in. On another time,
another set of circumstances it could be just fine. We've
gone many years without forfeiting this trust or having to
come to the head.
You've had people that maybe didn't get reelected because
of trust issues. But anyway we're at the juncture that as a
committee we have to come back and deliver to the community
something that they can feel like they've been heard.
Okay, now we're going to try to be Goldilocks not too hot
not too cold. And that's why we have, you know, the diverse
group here. Where do we land?
So what I hear you say is it's kind of like with the, the
auditor, you know, we're just going to put the language is
says you must hire an auditor and be done with it.
This, we being asked to say, you must have an ethics
ordinance and now go do it and expect the city council who
doesn't want to think upon themselves to do it to begin
with, trust that they're going to then follow through and
actually come up with the ordinance that.
This committee recommends that they write. Ultimately, you
're just a charter that's emphatic about having to have an
ethics ordinance that a city council will get that
ordinance written.
And that's this political public process that I'm talking
about and that's, that's part of why we're here.
And we open every meeting with comments from the public. It
's on the website. We want to hear and we know there's a
disappointment. We, you know, I say we, I'm talking about
us collectively in this room.
The purpose, the upheaval that caused this to be a
committee to be formed into considerate.
It's because of disappointment in the community of the lack
of trust. So at the end, when we come out the other end, we
have to have a vehicle that helps build that trust. We may
not.
It won't be instant oatmeal, but we're going to have to
establish the roadmap in the path.
And that's how I'm looking at it. I hope that makes if we
all look at it that way. We're making use of our time.
>> Joe, may I say one more thing? >> Yeah, sure. >> Because
I'm still wrestling with, you know, are we really dealing
with an issue of content or are we dealing with an issue of
mechanics?
Is the issue that the law has written doesn't do enough to
address ethics or is it that there is a certain kind of
corporate at times disregard for them and there's no
mechanism to go to take that on?
I eat an independent body of city council. And then the
question is if there weren't a separate, if that were
satisfied, what we have to be enough in that context or are
there still other things we need to do in the law?
Is it about mechanics and process or is it about the
content of whatever we put in here?
>> I would say that thoroughly as a player, I don't think
it's very clear as to what these codes actually come.
I mean, that was the reason for a lot of my questions on 17
1. There's no sense to recreate something that's already
there if it already has the scope.
I just don't feel like people understand the scope and how
much it covers a lot of confusion.
You know, we need this, but in fact, it's covered already.
>> And there was one word that you used to enable.
I would just like to add to the extent that it's possible,
it seems to me whatever we do, if there can be a context
that actually makes it easier and more comfortable for
people to perform public service because they now have a
context in a way rather than us being this constant
policing.
You know, laws wouldn't be needed if everybody did what
they're supposed to, but to the extent that you can infuse
this whole process with that, I think it would just.
You know, there's ways of thinking about a problem and the
way you think about it leads you to the kind of solution
you have and that would be my observation about that.
>> Jim? >> Well, my personal preference would be to write
the leanest and cleanest charter provision we could and
still achieve our goal, which might be simply to propose
that we remove those existing provisions in article 14
because they're already there and they're going to be there
regardless because we're simply saying we're following
state law.
And put a provision in the charter that says there shall be
establishment of an ethics ordinance.
We could even make it a little bit more explicit.
Kind of like that solution, but I think under the present
climate in Denton that we probably should be very careful
about taking that approach because I'm not sure the voters
in Denton would want us to take action that removes those
provisions.
I think people will look upon that rather skeptically and
think that we're actually watering down our existing system
and I think that might be a bit of a problem.
So I'm leaning toward an idea that would be leaving those
provisions intact and simply adding a provision that there
shall be an ethics ordinance.
That will be the responsibility of the council to establish
ethics provisions or an ethics ordinance and let that be.
I really don't think we need to do anything if we just
simply said to the council that it's the consensus of this
committee that there really needs to be an ethics ordinance
.
And we've studied and reviewed and we don't believe there's
anything in the existing charter that prevents it, then we
could say just do it and give them a little political cover
for the purpose of moving forward on that agenda.
That might actually be the simplest solution.
But as much as I would like to clean it up and take that
state law out of our city charter, I'm really nervous about
doing that because I don't want the voters of Denton to
think that we're trying to water it down further than it is
.
That's my concern.
The political sensitivities, the community political sensit
ivities, is such a high, highly elevated.
And going along with that thought, just carrying that one
step, it might make some sense politically.
We've already heard that there's nothing prohibiting this
council right now from dealing with this whole ethics
matter in ordinance, what we have right now.
Now might it be possible for this committee to tell this
city council, the way has been cleared for you to get into
this.
We want to know right now what your vision is, what you see
in terms of 171.
Do you see internal enforcement by an ethics review
commission?
How do you feel about disclosure?
How do you feel about, and at least get that out there, and
it might be possible to back into this charter amendment at
some subsequent date after the council has at least given
some idea of where they want to go with this.
Because it sounds like we mentioned whether or not we do
this first or let the council at least express their
feelings. We haven't had much direction from the council at
this point.
We really don't know what their feelings are other than
there is some sense of public distrust or lack of trust and
they want to do more.
Well, we've heard that we really don't need to amend this
charter for them to at least go to work on it.
So that's just a thought. Rather than us box them in right
now with a single sentence or something that...
City council shall adopt an ethics...
It could be redone within two years.
There are ordinance they can change, but the charter would
stay.
The charter would, it's like the city auditor, the charter
would say you shall.
Right.
And that was the question that you've been battling with
some folks for several months is can you, can't you?
And so we say you shall and that takes care of that.
Yeah Marty.
So here they can do it right now. If we leave it alone,
they can still go out and do that and we can make some
recommendations to do that.
And what's in there, what you're maybe suggesting is that
if we add you shall and they have to forever and ever amen,
put an ordinance, which can change over time depending on
who's in council.
But the provision is there forever unless they change the
charter.
And I don't want to repeat myself, but you're, that's right
. And you're right David that they could do it now.
But the community is looking for us to be demonstrative
that you shall write the ordinance.
So also give the council the opportunity. See this last
sentence here.
City charter provisions only now as I read that the two
resolutions right now, 06 and 09 are out of bounds for us
right now.
So we're only dealing with these charter provisions. So
whether or not we think the current ethics policy makes any
sense or whether or not we think the city council should
have the ability to, you know, police their own ethical
matters.
That's out of our hands right now. But it would, it would
put that right back into the hands of the city council to
decide.
And so it all kind of takes shape with the city council
where we could not do that right now other than say, you've
already got the authority you need right now to write an
ethics ordinance, get after it.
But we could say in addition, but after weeks of
reflections and thought about this ethics question, the
Charter Review Committee would recommend that that
ordinance include at least these provisions, which would
give the council a little bit of direction from us.
And it wouldn't really be beyond our charge, I don't think.
Our charge is to deal with the charter, but we're helping
them deal with the charter and then giving them some
clarification about we think these things really need to be
in an ordinance.
We can add one sentence to the charter language to go in
front of the voters, you will have an ethics ordinance, and
then we can in correspondence, part of our report here for
we recommend that the minimum that is included in the
ethics ordinance, including a board to review to take
complaints because council.
It's on its face to say council is going to receive
complaints of account fellow council member.
So we have to make those recommendations that have a board.
Recommendations to make recommendations to change the
ordinance to.
By by a new ordinance it's gonna.
Okay, and the community wants to know that this group
representing the whole community you're not representing a
council member any longer you're representing community.
Okay.
The community wants from what I understanding in
conversation and is they want a demonstration that ethics
is going to be put back in first place is being important.
So, we can do that with adding the one sentence, and then
making recommendations of what that ordinance at the
minimum should contain. That's what the community is
looking for us to make that statement.
Now, will an ordinance be subject to change every few years
is experience dictates or you find out this, this clause
isn't working or we forgot about X and we got to add it.
Yeah, that that'll be the dynamics, but the charter, we can
add a sentence or keep it neat and tidy, it'll stand.
So that that's we don't have to decide that tonight we're.
We want to use Allen's experience of in across the state.
This is what he deals with.
And, and, but I just, we have to really be very honest. It
's an environment that we need to address, and it has to be
an environment that people, when they come to serve they
want to be stewards for the public, and they want to enjoy
the public trust.
Now that is something that's been squandered, and to help
rebuild it, this is part of our process.
Yes, go ahead Bob.
Thanks, this is enormously helpful, very insightful.
I, in principle I would agree with you totally that
fundamental law should be about the fundamentals, you know,
that our constitution should be only about constitutional,
about major big picture procedural institutional sort of
thing.
So that's absolutely true.
But I'm thinking here all this conversation and I mean we,
our problem is more grievous than that.
And does it, how serious is our problem here? I mean how
deeply seated is this division, it is the distrust within
our community.
And in part we've enjoyed many, many decades of trustworthy
leadership, and I still think we do.
I mean at heart I still think our political leaders are
trustworthy.
But there's a sense that, and Joe you said it very well,
that trust has been breached here.
And so we're grappling with how do we restore the good old
days in that sense where we had that trust.
And in past I think our political leaders, elected leaders,
local, our city leaders were people, men and women of good
faith.
And we could entrust in them without much or probably
hardly any ethics ordinance or ethics standard to guide
them.
Their good judgment led them to make good decisions.
But now we've experienced, you know, breaches in that.
And so how do we restore that goodness that we had when we
're now just a little bit gun shy
that people can't be trusted on their own initiative to do
always what is the right thing.
However, we as a community see that as the right thing.
I've sort of come full circle on this.
My sense is that I think this need, if we want to restore
our community's trust,
they have to see it as not just an ordinance level thing,
but as a fundamental law thing, as a charter thing.
And though I dislike having those sort of details in a
charter, the gravity of the situation may warrant us doing
that.
Really creating in the charter the sort of general
principles that we expect our elected officials and career
officials to follow.
>> I would say that I don't think it's appropriate for us
to do something as important as a foundational document. As
you know, fat facts make fat wall.
And I think maybe some general policy recommendations,
please consider these things. Maybe some findings that we
found, research to go with it, but in a report.
But I mean, to the degree that we can keep our regulatory
framework as minimal as possible.
I don't think there was an ever-incorporated day when
people really trusted government, especially in Texas.
But anyway, I'd just like to say I don't think we should
cowl too much to the concerns of the rabble-rousing public
at this point.
You know, people are just like mad all the time. I'd rather
just make a good, wise decision and then stick with it, try
and educate the public.
If they don't like it, you know, they can elect somebody
else next time and they can be on the committee.
>> From the standpoint of the state guidelines versus what
we have currently, where is the strength?
Is it stronger, more effective in the state than we have or
are we just simply touching on the part of it or is it
actually just as strong and comparable to what the state
currently got on ethical standards and guidelines?
>> Generally speaking, are we okay or should we bump up to
the state and say to answer those two questions, didn't
maybe we need to toughen up our guidelines and our
standards for ethical considerations by implementing a
stronger or more robust guidelines.
And you shall create, counsel, you shall create an
ordinance to give effect to that.
And secondly, we also want somebody that's going to be
overseeing this thing instead of just simply leaving it to
implement the trust, to answer your question.
So again, generally speaking, are we weaker or are we
stronger?
>> I think what you have on the books right now in Denton
is weaker than what is on the state rules.
I think the state rules for the most part addressed what
most people are concerned about most of the time.
I think the furor comes up because I think someone over
here mentioned maybe the public is not really educated.
Maybe even the counsel may not be educated on what the
state rules really are and what they mean.
I think you may have, I'm not sure there's an enforcement
problem.
Hypothetically, imagine whoever you think in your mind is
the average ordinary reasonable citizen of Denton.
Is that person more likely or less likely to walk into the
DA's office and file a complaint or walk into the city
secretary's office and file an ethics complaint?
Sometimes it's a matter of enforcement, sometimes it's a
matter of convenience.
And I'm your outside legal counsel from Austin, so I
certainly don't know the politics of it.
>> I'd like to expand on that question.
So if we phrase our response to the council saying you
shall implement an ordinance and you shall create that
overseeing ability somehow or another.
You figure it out.
We are basically telling the population of Denton that we
want this to be placed in a stronger fashion than it is
right now, even though it's basically somewhat the same.
You said Jim, I mean, we can leave it there.
We're just going to make it stronger.
That's phrasing, that's language, and I think that'd be
understood.
But that's my opinion.
>> Okay.
Thank you, Horace.
It's almost 9 o'clock.
This is our target.
Here's what I'm going to suggest.
Now, Allen works for this committee.
Brian gets to pay for it, so.
Anyway.
You're still good.
Anyway.
No, this has been very helpful discussion.
And I'm going to suggest that if we have any written
questions following up the meeting, follow them in.
We'll get them to Allen.
If we find that we would like to have more conversation, I
don't think it would be a three hour.
We could possibly do a conference call if we prearrange
with Allen, you know, a half hour or hour on the phone
since we've got names and faces and a comfort level.
If that becomes something that we desire to do, but so I'm
saying that because I really do want to pinch this off at 9
o'clock.
But does it mean we won't have access to Allen one way or
the other through emails or conference call?
Or if we think we want him to come up for another full
meeting, we can do that.
That's up to us and Allen's schedule.
So that I'm going to close this item out.
And before we leave, we've got to talk about the dates for
the next meeting.
But Allen, I certainly appreciate your driving up.
And it's been so helpful to us and great resource.
Jim, Dave, Billy, good selection.
So we thank you so much.
Thank you.
Our next meeting would normally be on the 15th.
Now, spring breakers.
Who's going to Fort Lauderdale?
Bob Lamb.
How many will not be available over the 15th?
Fagin, will you be available over the 15th?
During the staycation.
Anyway, show me hands again.
We got four.
One, two, three.
Four will not be available.
So we can skip the 15th meeting and go to the beginning of
the next month.
The rest of us can make the 15th.
Is 20 second work for everybody?
No.
I thought there was only four of them.
There's still folks here.
Right.
So the minutes are well taken.
I can feel like I can call that phone in.
And if I have comments, I can email them back in with a
group.
So that's not enough people in my opinion to call out the
meeting.
I agree.
We all ramp it up.
I agree with you.
So let's go ahead and we're meeting the 15th or 6 o'clock.
All right.
We're going to adjourn.
Thank you very much, everybody.
Thank you.