Jun 22, 2023 Board of Ethics on 2023-06-22 5:30 PM (Special Called Advisory Opinion Panel)

Hello and welcome to this special call advisory opinion panel meeting of the Board of Ethics. The time is 5.30 and all three panel members are here so our first order of business will be to select a presiding officer for the meeting. So I'll leave that up to you. You want to be the presiding officer? The vice chair normally serves in the place of the chair. So today is Thursday, June 22nd, 2023. It's 5.31 and this is a special call advisory opinion panel. And we are now going to have one item to consider. It is BOE 23-030, request for advisory opinion for number 23-002, received June 7th, 2023 from Council Member Byrd concerning potential pending matters, conflict of interest or improper use of influence, applicability, and recusal recommendations. So I know you guys have read the material in the backup. So I guess we can just begin with discussion. Does Council Member Byrd, I guess she doesn't need to be here. No, I think they will say she can be here, but she's not required. Okay. So I will open the floor for discussion from one of you. Well, I do have just a couple of things that are more of a procedural nature rather than getting into the actual subject matter here. I have been on some preliminary panels many, many years ago. I'm a little bit confused about the difference here between an advisory opinion and a preliminary hearing. Ordinarily, an advisory opinion would be that person here asking, so this is not a preliminary hearing, this is an advisory opinion only. That's correct. Which means we're not supposed to investigate anything, we just look at the material? Right, you're basically just determining if it... So that would mean we are limited to what we have been presented, either in written form from your office, which would be, I guess, three pages. These text messages and your agenda sheet, and that would be the extent of our information at this point. Is that correct? That's all the information that I have. Okay. So any "investigation" would not be the purview in any way of this person, is that correct? Right. There's no alleged violation of the law. So it's just to determine, basically to give advice to her as if she should continue doing this action, basically. Okay. So Tom or David, do you have any comments based on that? Well, Tom, go ahead for a second here, so we can have some other things. Where I started was looking at a conflict of interest is when a person can benefit from actions or decisions in their official capacity. Correct. So I looked at the question as to monies flowing from the city at her recommendation, Councilman Byrd, to the Rotary Club. What was missing for me was how many flags. If this was five or ten, I don't see a conflict issue. I still question whether $50 is a reasonable fee, but that's not why we're convening. We're just talking about is this a conflict of interest. If it were 500 flags at $50 flowing to the club that she's a member of, I think that would hold the potential of being a conflict. So I don't see anything where it says the quantity of the flags. Is that correct, Madison? From my understanding, I do not know how many flags are being requested at this point. I think it's for city facilities, which there's probably 10 to 15, but I don't know the exact number. But multiple flags at each site, probably. Yes, I kind of second that issue. Okay, so we're left with basically just a brief email exchange then. So to understand, there were no phone calls. There was no verbal discussion between anybody on any of these boards or yourself. I had a discussion with the city manager's office who was like, "Would this be a conflict?" And I said, "The best way to determine that is if we go to the board." I'm sorry, say that again? I had a conversation with the city manager's office after Councilmember Byrd discussed it with them, and I said, "The best way to determine if there's a conflict is to have an advisory opinion panel." Okay. Well then, this is not a question, and this is just kind of a statement of where I'm at at this point then. Reading Ms. Byrd's original email on Friday, June 2nd, Councilmember Byrd asks only about the situation in this city in terms of flag posting. And she only comments that she would like to experience the celebration of liberty and that our flags are impressive. And the last sentence here suggests to me that she was trying to get this into the arena of a pitch to the Council, a two-minute pitch. I don't see where she has raised any of these other issues that have come out of the city manager's office. The Rotary, the Ethics Board, the CPC, contingency funds, I don't know where all that came from. So I just, I'm left with, and then her final comment here again, at the end of the day, she just suggested I have to have some guidance. And again, she's back to the issue of flags only. She's not suggesting where they come from, who pays for them, where they go. And so I don't know where I'd have any option here other than to recommend this just be dismissed. Because it's not a conflict of interest. It's a request for advice. It's not a violation at all. So it kind of seems like it, between Council Member Byrd's first email, and then five and a half days later the assistant city manager comes back and says we could use contingency funds. I looked at the Rotary website, and so I'm curious how it got to be that specific. Because I thought maybe Council Member Byrd just wanted to see if the Council wanted to do it. So I'm wondering where that specificity came from. I don't know. They may have had a discussion that was not part of the email exchange. So I think if it's really just, you know, should we have flags or not, I think there's absolutely no problem with that. Well, I don't think that's the question. Well, then if that needs to be in the form of a motion, then. Before you make your motion, I think that one of the duties that you have under the ethics ordinance is to look at the conflicts of interest section and see if she has any financial interest in the Rotary Club. Okay. And the Rotary Club, it doesn't give you a whole lot of detail, but it is a nonprofit organization. And she's not a board member. And she's not a board member. She is a member. She doesn't, if you look at her conflicts of interest, she doesn't own five percent of the entity. She doesn't receive six hundred dollars. They haven't been given that information, but Rotary Club members generally don't receive money from the Rotary Club for their membership. And she doesn't serve on the board. So that could be your finding that there's no conflict of interest under Section 2-273 of your ethics ordinance. And then the other thing to look at is whether there's any improper influence because she's a member of the Rotary Club, because she serves on council. Is that any kind of improper influence? So you look at, is she going to secure any special privileges, granting special consideration or advantage to a citizen's individual business organization or group, assert the prestige of her office? There's no information that she's saying she's going to influence any decisions, whether it's the city or the Rotary Club, and then state that doesn't apply to that last one. I noticed that we have council member Byrd here. My question was, where did it come from? Can we have flags to, yes, we should use the Rotary Club, and was there, I mean, is the city not an option to put the flags up? I don't know. Can the city buy flags? Well, you're not given that information. You're only given that there's a community partnership committee where these requests go to, and they would make the recommendation up to council. And do we have any information if council member Byrd serves on that committee? She does, at this point in time. So one of your recommendations could be that because she serves on that committee, because she's a member of Rotary, she has to, it's not required in your ordinance, but you could recommend that she recoups herself just to avoid any kind of improper influence. I see we have council member Byrd here. Would it be okay to ask her to shed some light on this? I don't know if that's allowed from the Rules of Procedure, but I just don't know. Let's just take a minute and look at the Rules of Procedure. The Rules of Procedure, though, is really about a complaint, more than, is there a section on that? While you're looking that up, that's actually why I asked my original question about whether or not we are limited to what we have been presented, because it was an update with one of the obvious questions to me. It mentions another name here, well, individual from... Is it the assistant city manager? From the rovers, no, from the rovers. Now, it would be an obvious question, which I'm told that we may not be able to ask, is did council member Byrd discuss, well, I'll go to council and see if we can get this, which, again, would be kind of a touchy area in terms of the influence. Or did she just, on her own, say, hey, I want some flags, and didn't. So that's an issue, that's why I started out asking how much investigation, or how many questions are allowed over here. If I'm only limited to what it says here, and there was no other verbal discussion, that's kind of where I'm coming from. I don't know the answer to that, I think, I mean, council member Byrd's here, it does say in the rules of procedure that no testimony or public comments will be accepted. I don't know if that is acceptable from Texas Open Meetings Act, it does say that though. So then we can't hold the council member? That would be my interpretation, but I don't know for sure. Can we do a motion to suspend the rules, just to allow a comment, to answer a question? Well, Robert Schultz does allow you to make that motion to suspend the rules if you want to. Do I hear a motion? So moved. Seconded. Okay, so we can suspend this, and the motion is to allow us to ask a question? Yeah, to ask, again, I'm only familiar with preliminary hearings. This advisory opinion is kind of new to her, so I'm really kind of confused here about what we can and can't ask. Okay, so we have just moved that we can ask councilwoman Byrd a question. So the question is, what was your intent, and you may have the floor now. Thank you all for giving me this opportunity to speak. This request actually came from a citizen, and the citizen is a member of the Rotary Club. And he and I discussed, does this want something for me to do, or do you want to do it? But since he was coming to me for guidance and assistance on getting this done, I brought it in from him as a citizen, not necessarily from Rotary, although it is for the benefit of Rotary. So what I'm noting here is this is not just for me. We also have two other members on our council that are members of social groups like this. Melter is Rotary, and Hollander is co-op us. So this will be something that would be a precedent for, I guess, anyone in these kinds of groups. So here's the thing. This group puts the flags up all over, and they note it. He noted, well, the county has a lot of flags all over through the Rotary. Why not the city? Can you work with us to see if the city may be interested in putting flags? The citizens may be interested in putting them out on city property. And of course, me, I guess, well, why not? Let's just ask to see how this would work. So if it needs to be me stepping back and out of the way, the citizen would come anyway and ask if the city would support something like this. So I think that is what I can give you. It wasn't me saying, oh, my gosh, we need this. You know how I am. I love connection, and that sounds like something I would do. It was just that it was coming through because he's the flag person. All those flags that we seek without this gentleman, he's the one that coordinates all of that. So that's how I'm standing here today. Do you know how many flags we would be talking about? Well, I got just one of the assistant city managers, Christina. She asked me the same question. I have no idea, but I made a suggestion that they could go in front of City Hall, in front of the fire departments, in front of the police departments. We did not talk about in front of the rec centers, but at least just start here to see if the city could appreciate this connectivity that we're trying to also have with the county. And also, it would be really nice to see all of the flags here that we appreciate. It comes from another part is that we are a city that we're trying to define ourselves. So if we know that we're connected with the county and the city doing these things. People have them in their private residences, and they're $50 a year. And they'll put them out seven or eight times a year. But right now, since we have Memorial Day, Juneteenth, July the 4th, they're all staying up. If you all have noticed, they're staying up now, so they'll have to keep coming back. So bottom line, the Rotary Club will receive some funds from it. It's a fundraiser. And they turn that money back around into the kids for scholarships, things like that, you know, for the 501 received. So that's really what we have in front of us. And of course, I would appreciate whatever decision you want to make. At least we're talking about it. It's something to discuss. So that's it. Any other questions? One question. The very last sentence here in your original June 2nd, the very last sentence, "I'd like to pitch this idea to the city council to approve it to the culture." Well, I mean, that's what we do whenever we have -- But you intended this to be more of a city council issue rather than being -- Well, I didn't know. I didn't know any better. So there's three people discussing -- Yeah. Well, I mean, I've got to start somewhere. So I'm open to, you know, constructive criticism. And I go to the city for everything. And they are the ones that have got me. And they are the ones that say, "You know where you might want to be if that made any sense?" That's all that I can depend on. That right there is just me getting the process started. But you intended to put the entire city council -- In my ignorance. Can I just weigh in? You know, in my ignorance. Can I just weigh in on that question? So when a council member starts with their idea, they go to the -- You see it's the CMO group. It's the city management group. She wants to pitch it to the city council. But the management group comes back and says, "No, it's more appropriate to go to the community partnership committee." To make the recommendation up. So that's where she starts, as a council member, goes to the management committee. They got us. But they tell the council member where the appropriate place to go is. It doesn't mean she just wants to bypass all the procedures and rules. No, I just -- I guess my concern is that I feel like it should start with city council and be pitched there. Right. You know, then the city council is the executive branch of the city. And the city manager's office is the legislative branch. And it seems like, in my opinion, they were jumped in quickly, the legislative branch. And so that was what confused me. So the council is the legislative branch. Okay, I'm sorry. And the manager's office is the executive. But it just seems like the city manager's office -- Well, it goes to the executive to say where's the best place to go because I think they get their funding. You know, there's a lot of requests for community groups to get city funds to do something that benefits the community. So that's why they have the community partnership committee. And that's why the management is saying your request should go there first before it goes to council. And I don't think this -- this meeting is not intended to be about if the city should get the flags or not. It's intended to be about if council member Byrd, for our ethics policy as a member of the Rotary Club, can bring that to the council in a way. Right. So -- Okay. Which, as she said, does not mean that it won't get brought to them. Just that maybe she can't say that she will do it because she's a member of the club or something, essentially. That's pretty much the answer. So what do you guys think? I'm still concerned about the quantity, but I assume would the CPC be the organization that would make the decision whether it's 100 flags or 1,000? I believe -- yeah, I think so. I believe so. They just make the recommendation. Yeah, I think they would review the expense and determine -- kind of maybe determine how many there would be and then make a recommendation to council on whether or not to approve it. And whether there's funds, enough funds available. But, yeah, putting up flags, I agree with the council on that this would improve the culture of the city, so I'm all for that. I don't know, ethically, if something benefits everybody and not just the one person, then that's not a conflict of interest. Right. I think I'll also interject and add one thing. I had just even recognized just today that our council member, new council member, he's a member of the Puanas. And the Puanas are the people that have been on the fireworks show. So it's something that can just happen to us because we're city leaders of uncertainty and we end up being in these positions. But certainly if there is an opportunity for, you know, a public service group to want to do something additional for the people, then it just is today. So as far as you know, there would have been no competition for who gets to produce the flags. It's either fireworks or flags. So the Rotary only has the flag photo, is that right? Yes. Okay. Yeah, they have the flag focus and, you know, that's what they do. But they never, I mean, just the idea of city stuff, and we see it on the county buildings in front of the county. It's so beautiful, you know. And then if this doesn't work out for all of us, then we'll have the citizen to come in and bring the flag. Well, I'm just, I'm looking for a remedy here. So if I was in that position, I would ask you if this happened again and someone from Rotary came to you, would you not think it probably smarter to say, look, I'm on council. That's for you to pitch to the council. You know, that's the direction that I need. And that's not only that, but for all of the members. If that's the direction that you all give. If that's the way to resolve this, because, you know, I'm picking this up. And during the five days, I'm going to Rotary Club, ethics board, the CPC, how did all these people get involved from a SOPA request to buy flags? So if there's a message or a lesson to learn here, maybe it's sometimes, and this is, you know, this is something that I've experienced for 30 years in this town. You get elected and you want to help, and I get that completely. And that's the difference between some elected positions and being a member of Rotary. There's just a time when you got to throw that flag up and go, hey, that's your, you know, I can't help you there. I'm on council. So that's what I'm struggling with, because I know your good intentions. And you know what? I don't even really think you need to struggle with that because if you all come to an agreement as to how we should handle this in this regard, because I know I'm not going to be the only one and the other two people are not. Davis, Jesse Davis, you know, he was in Rotary Club. So these things just happened. And so we have to look for you all to give us a direction and we will take that. I don't think anybody would be in. The issue is that the three of us, we were not here to give you direction at all. We have two options tonight. Either tear this up and throw out the trash or send this to a hearing on the ethics committee. That's not correct. This is just advisory. We're just giving advice. Well. We're saying do it or don't do it. Do it or don't do what? If you look at how the request came in, it's to make a determination. Number one is a conflict of interest or is she using improper influence? And when you look at the background facts, she's a member of the Rotary Club, but she's not on the board. She serves on that community partnership committee. I'm actually on the board. I'm on the board of the Rotary Club. So she's on the board. So that's not correct. But the person that asked me also, I'm sorry to interrupt, he's also on the board. Okay. So she is a board member of the Rotary Club. So looking at the improper influence section of your ordinance, it's up to you whether you want to make a recommendation. Should she recuse herself from the community partnership committee when they consider this issue? Should she recuse herself from the council if it goes up to council? I think that's the guidance she's looking for. I just don't see a conflict of interest here because it is one of those things that would benefit everybody. The money's going to go to scholarships. I think we're brain screwing this a little bit. So that was the first part of the question. The second one is there going to be any improper influence. Okay. Are you guys in line with there's no conflict of interest or do you think there might be? I don't see a conflict of interest. Okay. So we're good on the first one. So the second one is improper influence. I'd say yes, if there was a competing black fund at Kiwanis. But since it's a non-profit and the money's not going to benefit members, then I don't see an undue influence. What about you, Tom? I'm just thinking, as David just did, is there a potential one or more organizations that would like to do the work as opposed to put up the flags and take them down other than the Rotary? I think for improper influence, you look at page nine of your ethics ordinance under E. Does it appear that she's securing special privileges or benefits? No. Does it look like she's granting any special consideration, treatment, or advantage to a citizen, individual, business organization, or group beyond that as which is normally available to every other citizen, individual, business organization, or group? Again, it's one of those things that would benefit everybody, so it's not any specific. I don't think there's improper influence. So it doesn't look like she's trying to use her position to -- Special consideration, special treatment. Yeah, and then there's no evidence that she's trying to influence the city or anybody else. So the other exception -- the other provision I don't think applies. State or local government agencies, that she's acting as a reference, that one wouldn't apply. So that would be the second thing you can consider, whether there's an improper use of an influence in bringing this forward. I personally don't see it on this one. So on both counts, we don't see any issues. Would make a motion that the board finds whether there's conflict of interest under Section 2-7(3)A. What's the motion? I make a motion that there is no conflict of interest in this proposal. Under that ethics ordinance? Under that ethics ordinance, yes, as written. And then there should be a second? Second. So all in favor of the motion that there is no conflict of interest? Aye. We're just taking one at a time, is that right? Right. Okay. So now we're moving to a motion about undue influence. Improper -- Improper influence. I move we dismiss that, considering how many options there were used. I'm taking that. All in favor? Aye. Aye. So this hearing is now completed. Thank you very much.