Oct 03, 2022 Board of Ethics on 2022-10-03 6:00 PM

Good evening and welcome to the Board of Ethics meeting in the city of Denton. It's 6 p.m. on October the 3rd and I always forget what the next thing I was supposed to say. Just read this, got it? And a quorum is present. And a quorum is present, yep. And then, yeah, so I just, I think you're good. You read the, you read all the stuff, so. And then I just, before we got really into it, I wanted to welcome our two new members, Tom Pryor and David Zoltner. Mr. Patricia has rolled off the committee and so that's kind of been the membership changes, so. So then, I think, you want to let them introduce themselves or? Yeah, if you'd like to introduce yourselves. We'll start with David. My name is David Zoltner. I have been a Denton resident since 1983. I have been a prior member of this board when it originally formed in 2018. I served one year left for various reasons. I have been off for three years now but I have followed the activities of this board very carefully and written several columns in the record chronicle about the Denton ethics code, for better or worse. So I'm very interested in what this committee does. So, glad to be here. Thanks, Sam. Tom, you want to introduce yourself? Yes, Tom Pryor moved to Robeson Ranch in Denton in 2013. Lived most of my life in Arlington, Texas. Worked in corporate finance for about 19 years and then started my own software and consulting business for 30 years and logged three million air miles on American Airlines in the process. So, welcoming. Now I primarily mentor veterans who are wanting to start their own business after retirement or helping family-owned business leaders transition to leadership. Cool, alright. Thanks, Tom. Alright, we want to move on to approving the minutes from last week. So, did everybody get a chance to review the minutes? I think it was here. Okay, any comments on them? Nope. Okay, I'll move to approve the minutes. I'll second. All those in favor? Do we vote on 10? Yes, you can. Okay, so all those in favor? Aye. All those opposed? Any abstentions? Nope. Okay, we have voted to approve the minutes. 7-0. 7-0, yes. Alright, great. You can call the next item. What was that? You can call the next item. Yes, okay, so item... Okay, so agenda item, what's this, C? Is that correct? No, D, sorry, moving too quickly. Receive a report, hold a discussion, and take necessary action regarding potential recommendations to amend the Code of Coordinances, Chapter 2, Article 11, Ethics, Section 2-273, Prohibitions. Do you want me to keep reading? I think you're good unless you want me to go. Okay, so this is part of, for our new members, back in March we decided to kind of have a comprehensive look at the Conflicts of Interest section. And as part of that, we broke that up into basically five discussions, and this is our third discussion. And it's looking specifically at kind of like personal considerations and prohibitions, looking at what we currently have and comparing it to other benchmark cities, as well as Westler's Model Code. And so basically I did that, and this is what I found. So there are eight kind of considerations that are clearly financial-related, that are in various codes that I just talked about, and this is just kind of an illustration of those. And then your backup is a little more detailed about what each city considers when they're talking about those. And so basically this is for your consideration. If you want to make any changes to what's currently in our code, we can take that direction today, or we can just say, "Great work," or I don't know, whatever you want to do. I have a question about the language. Because when I read, let's take offices, board members, or other policy-making positions of a business entity, the last sentence there, actually not the second one, the second to the last sentence says, "Based on our research, the cities of Austin, Dallas, Fort Worth, Richardson, San Antonio, and San Marcos include this prohibition." And when I read that originally, I thought that there was an actual, so what that means is that those cities require a recusal? Yes. Or is it stronger language than that? Requires, so it requires that if there's, a city official is going to take official action in their position on a matter that involves a business entity that they're on the board of or in a similar policy-making, some cities use policy-making position, that they would have to recuse from that official action. Okay, but that's what the word, I just was wondering, that prohibition was not a stronger word than just a recusal. Correct. Okay. Yes. So just to be clear, they're one and the same. What do you mean by one and the same? That if there's a prohibition, then there must be a recuse. Yes. I had the same. In general. Yeah, so when it says recuse, you're prohibited from voting on taking an official action in that matter. If it says disclose on this chart, you just have to disclose that you have that relationship, and it doesn't prohibit you from taking action. Okay. Thank you. Any other questions about the material that's being presented? It appears San Antonio is the most, I guess I'll use the adjective, aggressive in the number of situations where recusal is requested. Are you aware, is that a positive or negative in that city or not? I don't think I can speak to that. I have no way of knowing. My experience would be that it's easier to know, well just about everything requires a recusal as opposed to picking through the, if there's only three kind of situations within Denton, I think that sometimes makes it more complicated than San Antonio where it's pretty obvious that recusal is required. But this is the observation from life. Any other discussion about this? Any thoughts that anybody's had? Question. Yes. Senator, are we going to be, are you looking for us to make actual action motions on this, or are we going to discuss each line? What is, how would you like to? So I believe that the way that we're going about this is Madison's written down here some comments, right, of what we want to talk about. Do we want to make any changes to the column that Denton has right now, and if so, do we want to give direction for Madison to work on that for us? Does that answer your question? Yeah, so what's been happening is we've gone through each of these sections. You've given me direction to essentially draft language per what you've told me to do, and then I've not brought that back yet, but I will as a packet of here's what we're proposing to change to the conflict of interest section. And then once that draft, we'll be able to review that draft language, modify it, tweak it, however you want it before it ultimately would go to the city council for review and potential adoption. If I could ask, because I'm looking at weighing some of this, recusing versus the word disclosure. So I've told everyone I have a match, but I haven't lived. Is that pretty much what we're talking about? I mean, what is, what would be the next step after I make a disclosure? So the way that disclosure works, at least in Denton, is that you basically sign a written affidavit that says, hey, I have this relationship, and it matters because I'm about to take official action under this type of relationship, does that make sense? And so that written affidavit is given to me, and then I keep it. And that's the end of it? That's currently the way it works. Thank you. Members? Question and a comment. El Paso has one of the stronger ordinances. Is there any reason that El Paso was not part of your, you've done a tremendous amount of background work here, and I salute you here. I was just curious why El Paso was not included in. So the way that I originally got the benchmark cities is I took it from, honestly, my audit side, where we look at similar cities, similar sized cities. El Paso is much larger, and I also took some of the biggest cities in Texas. I didn't think about El Paso when I did that, and nobody had brought it up until now. We can certainly include that in the benchmark. So there was no special reason why? No, I just didn't. I already have like ten or so. Then the comment. Just from my memory, most of these cities here where you see the larger number of recusals or disclosures, those are the cities that had historically had greater problems with ethical violations in the past. So San Antonio is the classic example of things went off the rails for several years in San Antonio. So that's why their ordnance and even El Paso's might seem and come off some of the more restrictive codes in Texas. So the number of recusals is kind of stands as evidence of where they're coming from in terms of their reaction and their involvement with the cities, with the citizens of those towns. So that being as it may, so that's it. Any thoughts on where to go with this? I mean, I think the point of this is to prevent an issue rather than to address things that have already happened. So if San Antonio or Dallas were more restrictive here based on things that have happened in their past, just because it's San Antonio or Dallas doesn't really mean that can happen here. So I mean, I don't want to make this a burden on people that are voting or considering some items for a vote in council or some other board. But I don't think that I think we're trying to avoid issues rather than punish people for what they've already done. I tend to lean on the side of transparency and keeping things as ethical as possible. If acusal is one simple way to avoid a conflict of interest and the appearance of a conflict of interest, then I think it should be stated. So if we were looking at this as a package, then I would say what Denton does not do, Denton should recuse. You know, and I think that that is really important to remember too, is it's the appearance of an ethical conflict. It does not mean that there's any actual wrongdoing. So if we err on the side of caution with recusal, I think then that's prudent to do just to avoid that potential for the appearance of the conflict. Thank you. Member Reiner. I would kind of dovetail with that transparency. I'm a little reluctant on the word recuse if we're going to use these definitions for the purpose of the recuse. I think these are a little bit too restrictive. For the simple reason we've had council members that have recused themselves and some of them have asked our opinion or have asked for city attorney opinion and saw a need to just recuse themselves as just the simple word that it is, I will not vote. But I think some of these are a little bit, in my opinion, a little bit too stringent for some of the public servants as to their nature of their business. If they recognize it, which is what we have now in our ethics on the recusing, I'm thinking that that could be enough. I like the word disclosure. That's sort of like a yellow line, hey, this may be something you need to look at versus the solid recuse if we, unless we want to lighten up the, in my opinion, a little bit on the reasons for the recuse. That's just my opinion. Thank you, Madam Chair. Thank you. Yeah, so in reading through this, I think that I found it interesting that we don't hit two of the subjects that the model code covers, but we hit two that it also doesn't. I thought it was interesting too that you brought up, member, I think it was Soltner brought up that a lot of these from San Antonio and Dallas are responses to issues that they have had in the past. So as member Pavlik, is that how you say your name, Justin? Pavlik. Thank you, Pavlik said we don't really want to be in response to something, but I'm curious what people's thoughts are on using the word recuse versus disclosure. Member Rayner brought that up. Does anybody want to comment on that, on which direction to go there? Yes. I would say that if we're taking action, then I would support a recuse rather than a disclosure, because disclosure is basically, as soon as I'm just disclosing it, and that's the end of the question, then there's the same potential for the appearance of an ethical conflict. I mean, obviously it could be cleared up, but I mean, I think it is much more, it shows much more of that proactive direction that we're thinking about going, I'm assuming from the comments, where disclosure is not public, whereas a recusal would be a public display of I'm recusing myself, I'm not loathing because of potential conflict of interest. So it would technically be a public document, but you would have to go know it exists in Google. Right, I mean, nobody. I just want to make that clear. So in order to figure this out, I'm wondering if we should structure it, sort of like go line by line, should this be included? And then once we get the included items, decide the language recuse or disclose. Does that sound appropriate to everybody? Okay, so I'll just call the item or the line by line, and then we can do a vote. Should I record that? I can record whatever, what the direction is and the vote, or you could, or we can both do it. Okay, great. Okay, all right, so Board of Business Entity, all those in favor, to make this something that we're going to include in either recusal or disclosure. So all of those in favor, aye. Go ahead. Of which, would you clarify? We already have recuse, so that would be a given. Yeah, in favor of keeping it. I apologize. Yeah, sorry, I didn't make that clear. We already have this language, do we want to continue with it, even if we have recuse or disclose out there, do we want to keep it, or do we want, that would be aye, if you don't want to keep it, no. Or if you want to add it, aye, and if you don't, no. Does that make sense? Well, may I make the motion, Madam Chair, that on Board of Entity, I move that we keep the recuse as present. Okay, yeah, and we'll go through and we'll talk about the language we're going to use in the second vote after we make the list, okay. All right, so running it again. Board of Business Entity, all of those in favor of keeping this item. Aye. All those opposed? No abstentions, so that's all in favor. It's just a point of order, Scott. They're just doing, these aren't-- This is just direction. Right. So they're not really motions, they're not actual-- Unless somebody makes a motion. They're sort of voting as part of discussion, so even like make it a little more informal so that it doesn't sound like a motion. Right, Scott, it's fine for you to do this this way, I think, as long as we're not making a motion, making it a little less formal, not calling it a motion. I think the cleanest way to do it, for Robert's purposes, would be if we have a discussion about which ones we want to include, and then someone makes a motion saying, I move that, you know, we add the requirement that an official recuse themselves in the cases of A, B, C, and D. And then we see who agrees with that. We have a discussion. Maybe someone can amend that motion. That would be a more proper toolsy way to do it. In an important order, if I may ask the attorney, once we do that, then, if we're going to label it, then can we come back and give the definition of that label, or are we going to discuss it all at once? The definition of recuse? Recuse versus anything else. I think we can discuss that way. I mean, again, this is still just sort of a, we're making recommendations, y'all are making recommendations to the Honor's Office to bring back, I think, right, official language that y'all are going to approve. So at the end of the day, this isn't really listed as an official action of the board, but... It does seem like it. It does? Okay. So, you could, but I think this isn't anything that we're going to work on, we're going to work on language. Right, I think what I'm really looking for today is, essentially, do you want to keep what we have, and do you want to add anything? And if you do, do you want it to be a recusal or a disclosure? And then I'll bring back the language and we can discuss exactly what that means in the future. Does that make sense, Rob? Yes, ma'am. Thank you. Okay. So, Board of Nonprofit, does anybody want to change that? They're switching. No. Okay. Anybody want to add offer of employment, and if so, who want to tell us why? Yes. Yes. I think that should be a recusal. I think that based on reports in the Chronicle that's happened before where a council member has voted on an item and then going to work for someone that was involved in some benefit based on their vote. And I think that's a pretty clear ethical violation. So if there is currently, if they are, the way it's written here is if they are directly or indirectly engaged in negotiations pertaining to business opportunities with a person, then it's business in your entity or nonprofit organization. To me, this is exactly what we're trying to prevent by having an ethics ordinance, and I think that this should be required to keep themselves. Does anybody have anything to add to what Dustin said? Is anybody opposed to adding this? We're pretty consensus-y on this one. Okay. Just direction to include offer of employment as required to recuse. Yes. Business opportunity negotiations. Do we want to add this? Thoughts? Trying to keep it a little more informal thoughts on whether or not we want to add this. I would recommend recuse because it's a negotiation, so the relationship could influence the negotiation, and that's the wrong signal to send to the public. Yes. I'd like for us just, would you give us a definition of a city official? So city official for the city of Denham ordinance includes the city council, certain boards, certain boards and commissions, including the Board of Ethics, Public Utilities Board, Zoning Board of Adjustments, Historic Landmark Commission, Planning and Zoning Commission. There might be one or two other ones. Public utility, the definition is in the- I'm just trying to recall it. And then it also includes the four appointed officials, so the city auditor, the city manager, the city attorney, and the municipal judge. It stops there. Is anybody against adding this one? Business opportunity negotiations. Okay, so we're pretty consensus-y on adding that one. Recuse or disclose? Is there any recusal on that one? Yeah, as though I have direction to add that as a recuse. Yes. Okay, affiliated business entity/partner. Do we want to keep the systems closed? Do we want to get rid of it? Or add it as recuse? Thoughts, commentary, discussion? I have a problem with it staying like this. I would like that to become a recusal. Because I think as this is outlined here, I think that is a very close business relationship. Okay, two recuse, one for disclose. Anybody else have any other discussion on this topic? I would just like to say that in all of these business opportunities, I would think that any public official that is concerned about ethics and the appearance of conflict and disincompetence would recuse themselves without being told that they need to. But unfortunately, I don't think that happens. Don't think it's wrong, sir? Okay, so we've got three people who have spoken. Right now, we're on the majority of recuse. Does anybody want to stick with disclosed? Other than member Reiner? I have not heard a majority indicated. Yeah, I haven't either. So I think I'm in the recuse camp myself. So we've got five. That's direction to change that to recuse. All right, moving to outside clients. Thoughts, discussion on this one? I'm a little confused how that one snuck in because it looks like it would fall into at least the awful employment business opportunity and affiliate business. I'm just curious, what is the outside client? Why is that such a separate entity? Yeah, I'm not sure. What I read through this one, I felt a little bit confused about it as well. Because I don't remember that anywhere in our code now. Do we have that? No. I would be inclined to remove it completely because I think it's already addressed in these others, Madam Chair. Thank you. If I could just speak a little bit on it. So I think business opportunity negotiations is prior to a business relationship. My understanding of what it's trying to cover. Employment negotiation offer of employment is also prior to that to actually establish a business relationship. And they're a little different because you're going into a joint venture versus becoming an employee. I think outside client is trying to say you've already established a relationship. Not necessarily as a partner in a business together, but you have done some transactions in a formal business setting. Does that make sense? Sure, but I think that still falls into the -- because even in here in the definition, you've got 24 months. Of the outside client or? Yes, of the outside client. Falls into which? I think it falls -- I think it would fall under your affiliated business. Oh, under affiliated business. Well, affiliated business requires that there be a formal business partnership. So you are like a partner in a business. It's the most confusing one. You're a partner in a business and then you're voting on a matter of your partners in a partner with a different business. Does that make sense? A client and a partner. Yeah, it's just -- it's narrowly defined in a different way than this is narrowly defined. I don't know. Yes. Where this appears like with an outside client, it looks more like a 1099 that you hired or something like that, right? Essentially where you're not necessarily in a formal business relationship with them. In terms of like a corporation. So it wouldn't necessarily be umbrellaed under affiliated business and to see partner be a separate issue? I don't -- I mean, you can certainly make that determination as a board. Okay. I think there are reasons that other cities have done it separately, but I don't know them exactly. Fair enough. It might be helpful to have an example of what that outside client relationship looks like. When I read this, I'm not getting a really clear -- I don't have to grade that. It's a little -- I even highlighted phrases. It almost made me look back up to the next one, which was the affiliate business, but it did. I thought it was almost a sub-chapter, too. Okay. So what I'm hearing is that we don't feel clear about what that means, and so it's hard for us to get direction. I could try to give an example. Okay. Like, if you were a salesman and you had an established client that in the last 24 months you had sold more than $1,000, that would be under this definition. So if they came for whatever apartment or something, then you would be required to recuse -- it could potentially fall under this category. Whereas just having a client, that's not an established business relationship in terms of the law of, like, we have a corporation together. So I think that helps at all. Yes? I'd just like to do what I can to clarify. The model ethics code of Wexler's makes a distinction between an outside client and one of your best customers, or this is a very, very intimate relationship as far as Wexler's concerned. And so the idea in the model code, which, by the way, is the recusal, which I also would support and second. But the whole idea of the outside client is that the outside client, the partner, the associate, and the employer are all four categories that I would vote for, not only disclosure but recusal in all those categories, especially an outside client. Because that's a huge opportunity for city governments to play games from the base. So I'm going to recommend that we agree with the model code and support a recusal there. A disclosure and a recusal are not exactly the same. You can disclose but not recuse, but you can't do the reverse. So when you recuse yourself, you've already disclosed. So again, from top to bottom, I just would recommend that we support the model code unless there's some specific reason not to. In that particular case, the outside client is almost the very first thing that Wexler gets around to in his long version of the ethics, or local ethics in a nutshell, if you've read that, if you've read his paper. So anyway, I strongly recommend that we keep the recusal in the debt income for outside clients, partners, associates, and employers. Thank you. So from y'all who we have one for sure, who else do we have for recuse on outside client? I would support that as well. I heard a direction to add that. Okay, personal bank and financial institute. Looks like Fort Worth is the only one. I think you mentioned that in your report here. Honestly, I don't know what happened to them. There's a huge, huge list of potential similar things that they require disclosure only on. Like if the city council was voting on who the city's banking institute was going to be, you'd have to disclose that, oh yeah, I also bank there. It's one of the instances. So things like that of that nature. I was trying to come up with some scenario in my head of why that would be required, and I can't think of one. I don't know if anyone else has run across this before of some instance where this was a problem, but I don't really see how this could be an issue that would require recusal or disclosure. Certainly one in the model code. My question is, is there potential for small business loans where that could play a role? I mean, obviously we all bank somewhere, right? So that seems to be a pretty straightforward relationship where you don't really have any interest, but if you have a small business and you need a small business loan, and then something comes before the city council for that institution, is there room, there's probably room there? I don't, I think this is separate from that. I think what you're describing would be the last item. The last item? Debtor, creditor. So that's what I went to initially, and I thought the one we're considering now, the personal bank financial institution, that would be separate from something like a small business loan. Maybe you could lump a personal loan or a mortgage or something in there, but I don't, to me the personal bank financial institution and debtor, creditor are separate things, and I can't come up with a scenario for the first one where that would be an issue, but I could for the last one. Which, I can argue either way. My opinion is the second to last for the personal bank financial institute, there should be no requirement to disclose or refuse. Does anybody have a differing opinion to what Dustin said? No. No consensus to change. Okay, and the last debtor, creditor. We started to talk about that, and it sounds like that one we have more of a concern about for recusal. Does anybody have a differing opinion from what we've already talked about? I would just add that I do support recusal, and I like the fact that the cities of Austin and Fort Worth have defined what that, what substantial means, and so I think if we run that route, we need to refine it. Okay, thank you. I have a question. Up here it says that the model code does require recusal, but in the text in the document it says it does not. It says it does, it just, in the city of Austin it says debit your creditor or guarantor, and the model code does not include guarantor. So who is in favor of adding this to our code? And we want that as recusal rather than disclosure? Yes. Okay. I'm sorry, which one are we talking about here? Debit or creditor. Okay, I'm hearing a direction to include debit or creditor for recusal. Is there any direction on guarantor? Does anybody have any specific thoughts on that one? I could see living with the model code with this. I think what you have there, once again, is David talked about, evidently Austin and Fort Worth ran into some problems with that, but if the model code didn't see it, I mean, I don't, because when you get to the grantor, you're talking about a totally different entity, are you not? I mean, you're talking about financial institutions, aren't you? Yes, pretty much. And then you roll into DIC and a few other things that I think would be more scary. The model code talks about some financial parameters there. For example, if there's an issue before a council and one of the council members is in for a half million dollars to a local bank, that needs to be known. So there's some limits there. If I own or if I owe a bank $50 on credit, I don't think that's relevant, but I do think that I would agree with the model code that disclosure and then recusal are probably appropriate at some level of debt or credit. So I don't know what those limits are. I would just probably leave it out there and just leave it as a recusal in general terms, and if that ever becomes a problem where, in other words, I don't want my council buddies to know that I owe that bank $3 million, but I still want to vote on this issue. So I think that can be kind of a problem there, too. So I support that recusal, again, from the model code. Shouldn't there be some definition of the substantial amount? I think that we can deal with that when I come back with specific language, unless you really want to get direction on that right now. That's what I'm looking at, the definition planter. There's a lot of this may be altered once we get our definition. So Madison, I'm not hearing direction to add guarantor. Yes, no direction to add guarantor. And then just to recap, because I think we're, unless there's other... Okay, so recapping for each item, keep the first one, keep the second one, and then add for recusal, offer of employment, business opportunity negotiations, affiliated business entity or partner, outside client, and debtor or creditor as requirements to recuse in certain situations that we'll discuss that later. And you'll give us an example for the outside client as well. I think that's what we asked for originally. Ready to move on? Yes. Great. Okay, now item C, I was rushing earlier. Receive a reportful discussion and take necessary action regarding potential procedures to identify and process accepted ethics complaints that may be frivolous. Do you want me to read the background on this? I'll do a quick version. So basically this comes out of the ethics complaint we processed in May of 2022. We had first discussed last meeting about sanctions we would want to add. We've had that discussion. This discussion is to potentially create a new process, maybe not new, but to modify the process that we currently have and make it a little more clear for future boards. And so based on, I did similar research looking at benchmark cities and the model code, looking at that only Dallas and San Antonio have ethics ordinance that consider frivolous complaints and how to process those. And they both use what they call an order to show cause process. They have little tweaks for each, but that's what you can see on the bottom. The general order to show cause is kind of in general how that process works whereby a body of an ethics body would dismiss a complaint and issue an order to show cause to the complainant. The complainant would then provide a response either in writing and/or at the hearing. And then the ethics body would hold the hearing, determine frivolity, and then potentially issue sanctions. I have our kind of current process up there just to kind of show how it differs and kind of the process issues that we identified with that process in the past. So any questions on this slide? I have a bunch of points for direction that we can go through. But I guess the real question I have for direction is it seems as though we did want to change the process. So as long as there's no direction to not do that, then I'll keep going. I'm not seeing anyone raise their hands. All right. So there's four points of direction here kind of on how we would begin a frivolous determination. The first one is basically who should be able to issue an order to show cause or if we decide to call it something else we can, but that's essentially what we're talking about here. In Dallas, it's basically a preliminary panel or the board. In San Antonio, they don't have preliminary panels, so it's just the board in here. We can recommend to have another hearing to determine frivolity. Either the panel or a board can do that. So that's the first kind of point, the direction. And the idea would be I'll take the direction and come back with potential language just like we talked about with the last one. So my immediate reaction to this when I read it was that the preliminary panel should be able to issue an order to show cause by two-thirds vote. And if we put that into writing, should the preliminary change in size at any point in time, that two-thirds would at least be in the writing. But I'm open to other comments. I think Madison wrote in here that that would mean two out of the three people present at the panel. I just want to confirm that that feels good for everybody. I would like to ask a question. So the biggest change that we're looking at is that the preliminary board can already, that's your first point of direction there, to be able to begin a frivolous determination process. Is that the biggest difference that we're discussing? So currently, I guess the first point is do you want to continue with the panel's ability to begin that process? Right now they can. Right now also the board can. Do we want to continue with that? The other question that Hannah kind of threw in there was by what majority? And as you can see the other, that you can vote by two-thirds of the people present in both cases. Ours is a simple majority, which is due to the size of our panel is the same number. I think another kind of, they're all listed as different points here, but one caveat to throw in there is under our current ordinance, you don't have a disposition, the panel doesn't make a judgment on the complaint at any point before they recommend frivolity. Under San Antonio's, they don't have a panel, so that's hard to compare with. But in Dallas, they have to already have unanimously dismissed the complaint and then vote to whether to have an order to show cause, why it's not frivolous. They all kind of work together, perhaps I could have compared this a little bit better, but does that help answer your question? It does. I would like to follow up on something though, because you just said that it was... So when there is no cause, so when the complaint is not determined to be actionable by the panel, then you said in Dallas they were able to immediately... So under Dallas' process, it would go to the panel, the panel would determine, it could be actionable or baseless, they would have to unanimously determine it was baseless, and then vote whether to have, to determine if it was frivolous. And is that second vote of determining whether it is frivolous or not frivolous immediately part of the... It's part of the panel. It's part of the panel's actions when they're making those determinations. Correct. And for us at the moment... For us at the moment, the way it's worded in the ordinance is that you don't, the panel does not determine whether the complaint is actionable or baseless, they just say we need to have a hearing to determine if it's frivolous. And so that's part of one of the issues is that it's very unclear to the complainant, or the respondent at that point, kind of, well what do I do now? Right, right. Okay. Madam Chair. Yes. So question, as it stands now, either the preliminary panel or the ethics board can move forward with this. Correct. And that has been approved by the city council. So yeah, so currently, yes sir, currently, if we have a complaint, it could go to a preliminary panel and they could say, hey, we need to have a frivolity hearing. It could also be determined to be actionable by a panel, go to a regular hearing, and the board of ethics at that point could say, no, we think this might be frivolous, and we need to, and then we either would have another hearing or we could try to talk about it. It's not super clear, honestly, what we would do at that point, but they could, after it had been determined actionable, during the hearing, to determine if the complaint was a violation, determine no, it's frivolous. I got that. So my next question to follow up then, the potential change, we need city council approval. Because it would not go in hand with the ordinance as it stands. Okay, everything that we're talking about will ultimately, if you give direction, will require city council approval. Thank you. Okay, so for the first question, are we comfortable with the preliminary panel being able to begin a frivolous determination process, or do we want the whole board involved to be able to do that? I'm personally comfortable with the panel making that determination. Denton has kind of been to hell and back on all these frivolous hearings, and the last one or two we've had, in my opinion, should have never reached the level of the board. And so whether or not the panel actually sends it to a frivolous hearing, I think the panel, if they've gone through training, they ought to be able to recognize a frivolous complaint on the basis of what's been submitted. I would like to see the time spared that we've spent in some of these hearings on frivolous complaints. It's not been a good experience. It's just kind of a learning curve that we go through. This order to show cause medicine, is that a separate issue from here? Essentially, the two cities that have really considered frivolous complaints at all use the order to show cause process, which is the formal name that they give it to, once they determine, hey, this seems to be frivolous, they usually give the complainant an opportunity to say, no, it's not, and this is why. And they do that by having a written response as well as then having a hearing, is how it works in their two processes. Well, correct me if I'm wrong here, but this order to show cause, especially in these two cities, we have just allowed frivolous complainants to just walk free. I mean, when it's over, but in these cities, a frivolous complaint is actually subject or can be subject to some pretty heavy fines. And so I think this order to show cause in these two cities is actually a separate matter. In other words, where a city or an ethics board would contact that complainant who has filed a frivolous complaint, and that order to show cause says, now you need to show me why this complaint you filed should not be penalized in actual dollars. In Dallas, they put a prohibition. We discussed this last meeting. They put a prohibition on being able to submit complaints for people who have submitted frivolous complaints. In San Antonio, it is associated with some fees. And it is associated with like a $500 fee and some other thing. There are other money as well. There are penalties. So until we imposed some actual penalty for filing a frivolous complaint, I don't see where this order to show cause really has much relevance. Last meeting, I was given direction to add sanctions that would, similar to Dallas, would prohibit someone who would file a frivolous complaint from resubmitting a complaint for a certain number of years. We haven't determined exactly what that looks like because we haven't reviewed staff language yet. The board has given direction to add sanctions relevant specifically to frivolous complaints. We're here based on what you're talking about is how we got here. They just, we prioritized it that way at some point and that's why this is what's second. Okay. So coming back to it, you will not be forgotten. So coming back to what now? What you were just talking about, the fees in place and making sure the frivolous complaints don't become frequent. That's our goal to set something in place to address that. Yes, sir. If that is the case, then I don't think that we should look at this in a position of let the preliminary panel handle it because our time is so valuable. If you're going to be punished for time and money, then I think we should keep the present position of the preliminary panel and the ethics board. And if we have to go, because I've been at two of the frivolous complaints, one where they had their own attorney, why? Because that is their day in court and that's the transparency that this ethics board shows. And if it means we've got to spend another hour or two hours, well, that's why we signed up for this. And I don't believe that if you're going to put that kind of justice or penalty on someone, just because we don't have the time, I think we should keep what we have in procedure present. And if it is frivolous, we'll let them have their day in court. Then if they're found guilty or whatever, then they understand. They may not want to go through that. So if we're going to go with punishment, then most definitely I want to keep it the way we've got it. So I want to come back to the first item because I think what we're starting to talk about is getting lower in what Madison has prepared for us today. I think it addresses your first topic. No, I think it does. This does. Go ahead, Madison. I'm sorry. What I've heard from at least two people is that we want the panel to be able to discuss a complaint, which they can currently do, and then vote to have a frivolity hearing or basically order the complainant to say why is this not frivolous before we impose section. Am I misdating what you two seem to have said? I think they should have their appeal processed, and that would be that second frivolous with it being brought before. The hearing with the board. Before the board. Yes, I do. Okay. And you seem to agree with what he was saying. I think I misunderstood that he was saying preliminary panel could not call for frivolity if you go to the full board. So, yes. My understanding is that the panel can say that we're moving this forward as a frivolous, but then the frivolity itself would have to be determined by the full board. Yes. That is what I heard. If the complaint wants to go before the ethics board, though, you're going to eliminate that. Say that again, please. If you're just saying at that point, preliminary panels can have that ability, but then you're taking the right of the person to file the complaint from being able to have it go before the ethics board. No, no. See, this is where I'm misunderstanding what I think you're saying. So, the preliminary panel, I think from what we're trying to communicate, can say this is a frivolous complaint and then the ethics board meets with the respondent to decide that. Well, that's the group and the Army Trend and Revenue. Give us the procedure how this works again. So, the way that this general order to show cause process works is the ethics body, which would be the preliminary panel in this case, we're looking at the bottom figure, dismisses the complaint and issues an order to show cause to the complaint, the person who filed the complaint. The complainant is then able to provide a written response and then they go to a hearing with the full board, the full ethics body and participate in that hearing like we would have a normal hearing and the whole body would then determine if it was frivolous and if so, if there should be sanctions associated with that. That's the general procedure. Yeah, we have curfew. No. Well, sort of. That's what I want to know. What do we have current? Current is the top one. So, the preliminary panel just recommends to have a hearing, does not determine if the complaint is baseless or actionable. Then the complainant and the respondent, they don't provide, they can provide evidence that has been presented at the hearing. They both are able to do that and then it's happening similarly. They hold the frivolity hearing, they determine if it's frivolous and then they potentially issue sanctions. So, I guess one of the big differences is the preliminary panel is currently not saying anything about the current complaint. They're not saying it's actionable or baseless, whereas under a normal order to show cause process they would say it's baseless, which then kind of says to the respondent, the person who was named in the complaint, hey, I'm off the hook, kind of. Right. They've already said what the person said I did, I didn't do. Well, it's the grand jury of the legal process before it goes to court. Is that correct? I don't know. Mr. Taffer? That's an analogy. I mean, that's what it sounds like. How I'm hearing it is this panel of a few of y'all gets to, yeah, they get to say whether or not it goes forward. The complaint goes forward. But that doesn't eliminate the question of whether or not the complaint was frivolous. That's a separate question. Correct. The panel can say, ultimately the three choices they would have under this order to show cause process is, A, it's actionable, yes. Go to the hearing, determine what the violation, you know, determine what the violations and sanctions for the respondent, the person named in the complaint is violating it should be. Hey, no, it's baseless. What they're saying isn't actually a violation of the ordinance at all. And so we're not going to go to the full board. Or they can say, hey, this complaint is frivolous. We think it's frivolous. We're going to dismiss it because it's not a violation of the ordinance on the respondent's part. It is in fact a violation of the ordinance on the complainant's part. And then we're going to have a hearing to address that issue with the full board. That's very similar to how the National Association Realtors form their grievances. That's why I recognized it like I did. Thank you. Okay, so I think we're clear on that now. What it is. And then moving forward, what we want to do about it. The question is, do we want that process that's clear? Yeah. And because of the confusion right now of what the panel is able to do. So I think yes, we need that clarity in what the panel is able to do moving into the I kind of lost the word that you just said, but issue order to show cause. To be able to issue order to show cause. Yes. So is this still informal or do we need to do a button on this? I have a clear direction I think that they should be able to issue in order to show cause. The question is, under what circumstances? Do they need to, similar to Dallas, unanimously dismiss the complaint and prior to being able to issue that, should it be only the majority that dismisses it? Do, and then our current, under our current ordinance, they don't have to determine that at all. They don't have to dismiss it at all. They can just say let's go forward. I think we found issues with that because it's not very clear to the respondent what's happening. Yeah. I believe unanimous dismissal makes sense. I believe that that would be a good direction for us to go. I'm wondering if anybody else has any thoughts about that? Would you please remind me we have three members on the panel? Yes. So it would be unanimous dismissal and then questionably right now, if it's majority, technically it would shake out to two thirds vote to move to frivolity. In this direction that I'm speaking about. Does that make sense? So it must be dismissed and then voted to decide if it's frivolous by two of the three people. Okay. So the dismissal is unanimous, but the vote to move it forward as frivolous would be two thirds. Correct. Yes. I think in some ways it's addressing your concerns of time, right, because they've all decided if this isn't a violation by the respondent, but do we think the submitted complaint is grievously frivolous enough that we need to have a hearing to have sanctions? And so just two thirds, majority or two thirds of the people need to agree yes, we think it's a violation, it's a grievous enough frivolous complaint to go to have that. But if there's not a unanimous, then the last, the bottom two aren't moved. Correct. So if only two people think it should be just dismissed, then you can't go to a frivolous, you can't issue an order to show cause to determine if it's frivolous. So there's another term that's being introduced here and I'm getting confused, I'm sorry. There's actionable. Yes. That action needs to be taken and it will go to the hearing. That it's baseless and no action. It's baseless because it really isn't an ethical violation. And then there's frivolous and then we've introduced the term dismissal. So yeah, so if it's determined to be baseless, it is considered to be dismissed. It's considered to be dismissed. So they're using it interchangeably and I apologize. You would really have to determine that it was baseless. It would have to unanimously be a baseless, determined to be baseless by the preliminary panel. Then you could determine, then you could issue the order to show cause that it's not frivolous. I apologize. The Dallas ordinance uses a little bit different language. Okay, thank you. Okay, so direction. Do we like the unanimous dismissal? I think the first question, Madam Chair, is do we want to move there or keep with what we have existing? That's true, but I thought I heard direction to move forward with the order to show cause. I thought so too. Then I think we ought to show hands, Madam Chair, so we can get some direction for you to help Madison. Okay. So what you're saying is you want to just leave it exactly as it is right now? Go to that, if you don't mind, go to that there. The current versus the general order, which would be the new one. Okay. So where the preliminary panel cannot determine whether or not it's actionable or baseless, correct? The preliminary panel can determine that. They can. That's why they're meeting. That's the purpose of the preliminary panel. Okay, what did you say earlier that they can't do? Issue the order to show cause. They can issue an order to show cause. Instead, what they do is don't make any sort of determination and recommend that the ethics board deal with it. Got it. Thank you. Okay. So leave it as it is or move to the next is what we're trying to decide. So who wants it to stay as is? Okay. And who wants it to move to the new procedure? Can you guys explain what the concern is? I guess I'm not following. Cause from what I understand, the point of this is so that there's clear feedback to the respondent that is already been determined as baseless and that there will then be a frivolity hearing. The current process, if the panel, the three-person panel determines the complaint is baseless and that there should be a frivolity hearing, the respondent does not give that information. Is that correct? They would receive notification that the complaint has been determined to be baseless. And I have a whole other slide to talk about how the respondent is involved if they determine to go to issue an order to show cause. So it's an education process for the respondent. What you're saying that is there a miscommunication to the respondent in from the slide that you have for them? I'm confused by your question. You said that the respondent's were, lack of communication were confused. Is that right? Yes, in previous, about what they needed to prepare for if it was going to be determined it was frivolous. And you have a slide for them that helps them do that? I have a slide for us to discuss how the respondent would be involved if they issued an order to show cause, basically. I think we're losing track of the fact that if we're changing to the general order to show cause process, the biggest difference is that currently the panel cannot make a determination whether something is frivolous or not when they're dismissing or finding a complaint to be baseless. What we're looking to add is if indeed the panel says this is a baseless complaint and we're dismissing it, at the same time they can trigger now this issue order to show cause, which then starts the frivolity hearing. We're creating a whole new process that the complainant would go through if the panel believed they submitted a frivolous complaint, instead of basically having the same ethics complaint process to where we're still, even though we ultimately ended up with a frivolous determination, that's still considered ethics complaint 22001. Whereas if the panel had been able to say, no, this is baseless and dismiss it, under this new process we would say, okay, that's done, now we're in this new process, so it would be separate, totally separate. It would just take it onto a different track, right? Correct. Instead of moving it forward as an ethics complaint, it has now moved forward as a further complaint to show cause. It cleans it up. It cleans it up, yeah. I'll just add, from the last one that we reviewed, part of my concern was the timing of the complaint. It was right before an election, and we dragged out a process, because it takes time, based on our, based on the process, how many days people have to respond, when we get a hearing schedule, all those things, we drag out a process longer, and now we have articles in the paper that are potentially affecting votes in an election. What I think the general order to show cause allows us to do is the panel, the three-person panel, would dismiss the complaint. It would essentially take out several days in the process of there being an open ethics complaint against a candidate. I mean, that's one example of where this was a huge concern, and I guess there's already been discussion about what to do after frivolity is determined, but part of all of that discussion around that hearing was we can't really do anything. I mean, I think it was a unanimous vote that that complaint was frivolous, and afterwards, everyone kind of threw their hands up and said, well, we can write a letter and say this, but all the damage had already been done. And if we move to this newer process, we can try and limit some of that by shrinking the timeline for there to be an open ethics complaint against a candidate. That's where I would see that the new process would be much better than what we have tried to do before. If I'm missing something, I know David and Robbie both were against it. I guess I don't see how the newer process is a better approach. Members, did you want to say something? I'm missing a lot of stuff here, so I'm not that unhappy with the process as it is now. I think what makes a difference to me was having the explanation that it moves it out of the initial complaint onto a different number, different tracking system, and it shortens the -- as long as we're dealing with everything else, that complaint is still open. It's not completely resolved. And so this resolves the complaint, finishes it, and moves onto the determination of whether or not it was fair work. And I support that. Well, just from a history standpoint, if we just remember what happened just a few months ago, there was a hearing that went all the way through the formal hearing, and then at the very end, it was almost dismissed until one board member said -- it was backed up all the way through a frivolous hearing from that point. So there was a lot of time invested there that I think probably could have been avoided if someone could have recognized that frivolous nature early on from the panel standpoint. The panel -- in that instance, the panel recommended that it was to go -- to have a hearing to determine if it was frivolous. They just didn't -- they just couldn't say that the complaint was baseless, because it's not laid out that way in our ordinance. Ultimately, what this would do would just allow them to say -- if we had went through the whole situation, they'd be able to say, yes, this is a baseless complaint. We're going to dismiss this, and we're going to open a new issue on the complainant. And we would have still gone through that exact same process with them to have that frivolous hearing. The usual determinant between baseless or frivolous is whether or not it was filed in bad faith or if it's harassment. And if you have to get through the initial complaint to actually arrive at that bad faith or harassment standpoint, then I don't know when that reveals itself in the process. I'm not sure. I would actually -- I think what -- with you making that point, I think it is actually very clear. I think that this new process could actually save exactly the time that you -- and investment that you said, because it just puts the complaint -- it finishes the complaint and then opens up another track of now we're determining whether it's frivolous or not frivolous, rather first determining that it is actually baseless and then moving forward. And that's what happened last time, because they got to the end of the hearing, and it was determined that not only is this baseless, but it was filed in bad faith and harassment, which backed it up into the frivolous hearing. The complaint is about the actions of the city official. And by moving to the general -- to the order to show cause, that moves it to the actions of the complaint. And I really like that clear line, moving from the actions of one person to the actions of the other. And that's done at the preliminary hearing. Okay. So. The first step there that I can see could be an issue, but essentially that the complaint that was submitted is then dismissed. There's like a step in there where they have to say it's baseless or whatever, but it's dismissed, it's closed, and then they open the new process. That vote to close it, you want that to have to be unanimous in order to open the new process. That's the majority. Majority. Any other thoughts? I think unanimous is a very quiet order. I think I would support a majority. I would think that if it was frivolous, the likelihood that all three people would unanimously find it baseless would probably be pretty good. But if that's the consensus to go with majority, we can make that motion or that suggestion. Majority. So that would be the first vote that they would take to close the complaint. To decide that it's baseless. And then they would have to have a second vote to issue the order to show cause. Yes. And then would you want that to be a majority? That's what everybody else basically is. Technically, actually, Dallas and San Antonio are saying two thirds, which is higher than the majority. But there's only three people at the moment. So it's the same thing. They might have a larger panel, so I don't know. So, yeah, if we were to change the language, it would virtually remain the same. So do we want to stick with simple majority? Yeah. Yes? Yes. Okay. Okay. Let's not worry about that last vote. Okay. At this point, you've issued the order to show cause, and you've told the respondent that everybody does that. They're not just going to say it's dismissed, and then also this other process. They say the complaint is closed. Also, we've issued an order to show cause to the complainant, basically. That's how the process works. The question is then, the Dallas ordinance allows the respondent to say, hey, don't worry about it. Don't do that. Stop the process there. So that's one point for direction. Do you want the respondent to be able to say, hey, don't waste your time? I don't like that idea. But I'm not sure what everybody else is thinking. I think if the respondent filed a frivolous complaint, that it should be pursued further than just, oh, my bad. Never mind. This is the respondent. So this is not the person who we issued the order to. This is the person who they theoretically submitted a complaint against. I'm so sorry. No, it's all right. I got confused the first time I read it, too. So basically, the person who we closed their complaint, who was accused of a violation, can they be like, hey, don't worry about what that guy said about me? I'm inclined to say no, because they're out of the process now. I would agree. I would agree. I don't know why that would occur. I don't understand why you wouldn't want to allow that to happen. It must be a conflict of interest. I would say no. OK, so we're hearing direction. No, don't let the respondent be able to stop the order to show cause process. Keep it like we have it. Correct. And then so then the second two bullets are about, which I think I understand what Deb was saying, should the respondent be able to provide a written response to the order to show cause and/or participate in the frivolous hearing? So should they be able to provide evidence, just like physical evidence, say, hey, as you're going to have this hearing, look at this? And just that or nothing. There's nothing. Provide a written response that could include documents or whatever that the board could consider at the hearing or do that and participate in a hearing, like we had in our last hearing. So I'm curious, pardon me, but so would this be new evidence that we're looking at then? The respondent does not submit evidence in our current process prior to the preliminary hearing, preliminary panel. So it would be it would be new. It would be what they are presenting as, hey, I agree with you that it's frivolous and hearing wise, essentially. So my thought on this is that it would be appropriate to have written response. I'm unsure about whether or not they should be able to participate in the hearing. I can see cause for either side from the respondent, but I do feel like a written response should be added from the respondent, Andrea. I would agree. I think I think the respondent should absolutely have the right for written response. That would be then taken into evidence. It would become part of the frivolous hearings. But I also think that if if you have a complaint against yourself, I think that you should have the right to defend yourself and participate in the hearing. I disagree because at this point they're no longer a part of it. It's about it's about whether or not the complaint is frivolous and the panel has already decided that it's baseless. OK, so, you know, yes, we agree this is not an ethics violation. And this complaint is gone. Done. This is about what this other person has done. And so I think that having the respondent completely out of the process would be more appropriate. So completely no written response. No. Option either. It's done. The complaint was baseless. Let's move on to what this person has with this complaint. Yes. Do you think that the respondent may have maybe in a in a in a unique situation to kind of like provide information about the motivation that make it frivolous? No. No. Do you think it's that apparent at that point? I think that it's about the complaint and their actions. And if you're bringing the respondent in, might as well just go into the same process that continue the same process. We've already said the complaint is baseless. We're done with you. Now let's look at the frivolity of the complaint. No, I think I agree with Andrea that they may have a unique perspective on why the complaint would be frivolous, but having them present at the hearing, I don't know that would be necessary. But being able to provide some type of evidence in a written response or a statement of some kind could be helpful to the hearing without them necessarily being present. I don't have it at the preliminary hearing to determine whether or not it's baseless. You've eliminated your streamline. Exactly. We're back to the existing. Okay. Which I liked, by the way, but to understand that is true. Help me understand that. If I understand you correctly, that means that the respondent would have the opportunity to provide evidence to the panel. No, the respondent does not currently have an opportunity. They're valid. No, to the panel when the first determination made originally. There is not. There is not. Yes, the panel only considers the complaint, the submitted complaint. Which means if that is the case, then the respondent is, like if something is considered to be baseless, the respondent is completely left out of the process. Correct. I find that hard. I mean, in looking at the code, there's -- in making our determination for validity, we're supposed to consider certain factors. One of those is existence and nature of any relationship between the respondent and complainant before the complaint was filed. If we don't have that information for both the respondent and the complainant, then I'm not sure how we can consider that item. So at a minimum, they should be able to provide a written response. I mean, there would be no way for us as a board reviewing that to know about the existence of some prior relationship before the complaint was filed. So I mean, if we don't allow the respondent to provide that information, then we're relying only on the complainant, who we're already evaluating their complaint for validity. So I don't think that we can leave them out of that process. It's hard to imagine not having a respondent involved in any way in that process. So are you saying that they should be able to, in the process, do all of these or some of these, provide a written response, participate in the hearing? Currently, I have three or four provide a written response that would be presented at the hearing but not by the respondent. And then that's really all I've got. One against that, you against no involvement, correct? So to get to the issue of a relationship, would the written response be in the form of, could you please answer these questions and ask specific questions that are related to the language of the ordinance? We could certainly do something like that if that's the way the board wishes. I think right now we're just trying to decide whether or not they can have a written response. We can decide what that might look like later. But yeah, we have three and one and three unvoiced. So the rest of y'all who maybe haven't said anything, do you have a strong opinion in one way or another? I agree that written response should be allowed. I question the need for participation. Okay. Thank you. David. Say that again. I agree that written response options should be provided but not participation in the hearing. That is for yes, written response. Okay. Any other discussion on that? No? Okay. Yeah. We're providing direction on written response, right? Okay. And anybody strongly feel that we should participate in the hearing? I'm hearing a lot of no for that one. So I think we're wanting to change that to not allowed. Yeah. Dustin, you're not sure? I don't know. I think it's adequate to allow them to provide a written response and not allow them to participate through all of the hearing. I think written response is enough. I believe I have four for not allowing them to participate in the hearing. The next one is a whole different topic but I don't believe it needs to be discussed today if you do not want it to be. I don't know if you're saying 730 is ready to go home. Or we can do it if you would like to. No. You want to move forward with this? No. I would like to pause for tonight. Okay. So would that be exhibit two we'd be stopping at, I'm not sure? We would be stopping at, it's not the exhibits. I think the exhibits are to help with, excuse me? The item D I believe. So just D. We haven't gotten there yet. Right. So we've covered A, B, C, and then D is just the prioritization of future meeting items that I don't believe needs to be. No. No. I do think the thing that we need to just be sure about is that we are meeting in November 7th. Yes. Let me just skip to this page. Yeah. Yes. Next meeting is November 7th. Same time, 6 o'clock, 6 o'clock. And then. Yep. Yep. It's 730 p.m. and this meeting is adjourned. The meeting of board of ethics is adjourned.