>> And everybody's here, please call in.
>> Okay. It's 530.
So we'll go ahead and get started and call
to order this meeting of the regular meeting
of the Board of Ethics.
It's 530, August 7th, 2023.
Jumping into the agenda, item A, BOE 23-032.
Consider approval of minutes for June 5th, June 22nd,
and July 27th, 2023, and it was a regular meeting
and then two advisory opinions.
I wasn't there, but everything looked okay to me.
Is there any --
>> I move approval.
>> For all three?
>> Now we have e-comments.
We have to state that we didn't receive any e-comments.
That's true.
>> Oh, before we get started?
Oh, okay.
>> Yeah, sorry.
>> I read the new procedure.
>> Okay. So opening administrative business.
State of the time.
Quorum is present.
Everybody who said they were going to come was here.
We have seven people present.
And we have no e-comments received.
So now to approval of minutes, meeting minutes.
Do I have a motion?
>> I move to approve.
>> Of all three?
>> Of all three.
If that's okay.
>> I'll submit any objection to that.
Okay. Any discussion?
Or I need a second?
>> I'll second.
>> Second by Hannah, moved by Annette, second by Hannah.
Any discussion?
All in favor say aye.
>> Aye.
>> Aye. I think everyone, I think it's unanimous.
So we approve the prior meeting minutes for those three meetings.
Okay. So BOE 23-033, agenda item B. Receive report, hold discussion,
take necessary action regarding the ethics complaint process detailed
in quota ordinance number two, article 11, section 2-281.
Meetings in section 2-282, disposition.
So do you want me to just turn this over to you, Madison?
Do you have a presentation on this?
>> Not really.
>> Oh. I didn't know I was to look it up there.
>> Yeah. Last meeting, we discussed the burden of proof
for two meetings prior to this.
Last meeting there was majority consensus
to remove section 2-281(c)(4) burden of proof
from the ethics ordinance.
At that time, staff was provided direction, or was directed
to provide potential options on how we could gather additional evidence
if needed for an ethics complaint if it was not directed by the complainant.
So I developed, this shows kind of a summary of the current model as well
as three options that I put together based
on just ideas that you all had discussed.
These aren't, we're not necessarily limited to those.
That's just what I tried to do, what you all directed me to do, so.
That's really all I've got.
>> Okay. I was not here for the last meeting.
I wanted to vote it to get rid of the burden of proof.
So I don't really have a lot of comment about this.
>> I think it's really important to consider getting rid
of the burden of proof because on the citizen, because it doesn't appear
that way in any other city that I have found, and it's not in the model code.
It is clear that the burden of proof is between the city and the complainant.
I think to put that pressure on a city will mean that no one's going
to want to file a complaint even if they have what they consider valid reasons.
And I think that the city needs to be the one to say no.
This is between us and you.
It's not even, I don't even think that should be put on us as a board.
I think it's a city thing that if you're violating the code of ethics, then so.
>> So I had to go back and review some of the discussion
from the last meeting because it's been a while.
And a lot of the discussion was about the burden replacing the complainant,
how that would limit certain citizens from wanting to file a complaint for fear
of retribution or fear of the process and having to go through and stand
up in front of the board and present evidence and that sort of thing.
And I think a lot of the discussion was how do we make it so that our process allows
for someone to make a complaint and then not have the responsibility
to be a prosecutor in the process.
And there was a lot of discussion about if we could have outside counsel present
that evidence or do some sort of additional investigation
on a complaint to gather evidence or if we could have an advocate or something
like that being a board member or some other party that would guide the complainant
or take their complaint and then ask additional questions prior to the board hearing
and after the preliminary hearing panel.
So I think that would be adding a step in between the preliminary review by the panel
after the complaint is deemed to be complete and have evidence and potentially action.
So that was where a lot of the discussion was like.
How can we make it so that a, you know, typical resident of Denton,
if they have a legitimate complaint, we make it so the process is,
I don't want to say more inviting, but maybe less intimidating
so that they feel comfortable making a complaint.
And we had some discussion about, well, if I'm going to make a complaint,
I'm going to hire an attorney to do that.
And I don't think that is the typical, you know, something typical for a resident
of the city of Denton to want to do, hire an attorney to submit a complaint
for a violation of Denton's ordinance.
So I think what we asked Madison to help with was give us some guidance
on your different options of what we can do compared to where we are now to take some
of that burden off of the complainant and what we could possibly do to make that,
make the process work and not require a citizen to be the complainant to be party
to the entire process after their complaint is deemed valid and not frivolous.
Now, I think some of the discussion we ended on was do we want to be able to ask for,
ask them questions, allow them to submit more evidence or allow board members
to submit evidence or conduct some kind of investigation.
And I think that's where we sort of got hung up last time.
But it seemed like in the discussion everyone kind of was getting to the same point
of the average citizen is not an attorney.
They're not a board of ethics member and they're going to be less familiar with all this process.
And the way it is set up now with the burden of proof lying solely on the complainant,
that is something that is going to limit a citizen from wanting to or feeling
like they could submit a complaint for fear of having to come in front of the board
and speak or be questioned or something like that.
So I don't know if that helps guide a discussion a little bit.
I'm just trying to prevent us from having the same discussion we had last time.
>> Well, as far as these options, I mean, like I said,
I think that the complaint should have some skin in the game.
So I wouldn't vote it for this.
But does anybody have comments about these different options, Madison, before?
>> I have several.
>> Okay.
>> First, I think the BOE advocate is a conflict of interest
for anyone on the board to be the advocate.
So I have a real problem with that option.
It also gives the appearance of bias and also removes a person
from the pool to even serve on the board rather than advocate.
So I have a real problem with that.
I do have a question about the city attorney.
When I looked up the city attorney, because I remember an incident years ago
when the city attorney helped me with a violation of the ordinance that a neighbor was doing.
And according to the website, and I know we have the office representing here,
the city attorney will assist citizens in preparation
that probably will cause affidavit for class investing.
It responds and files motions.
But I wondered if the city attorney might be someone who could step in
and help a citizen put together the packet.
>> Well, I think there is a conflict of interest as we've already discussed going back to 2018,
that the city attorney is employed by the city.
So their like bosses are counsel.
So they have a conflict of interest of any complaints against counsel.
>> So that would not be an option?
>> I mean, I don't think so.
>> If they were helping them put together the paperwork.
Not necessarily representing them.
>> I think that probably would be considered representing them,
but I don't think that would be the paperwork.
>> Okay.
>> I wouldn't want to put them in that position.
I just threw that out there as one option.
>> Yeah, and I think what you were reading is like there's certain classy complaints
that citizens can make, like, you know, your, I don't know,
neighbor's dog's barking or something like that.
Like not a true crime that's just a final crime.
I think that's what it's talking about, what you're reading.
>> So my final comment is that in the code, it says that complaint has the right to be
represented by legal counsel, which in itself is rather intimidating.
But then in the procedure, it says legal counsel or another representative,
which sounds a little bit more user-friendly,
that you don't necessarily have legal counsel,
but you could have someone be with you and advocate for you.
>> Yeah, I think we've discussed this before when we changed that.
I think we changed it to representative possibly way back several years ago,
that like you can't have just anybody that's not an attorney come forward.
I mean, I think you're probably right about the Board of Ethics.
You have a good point about that, but I think you're all right.
It could just be anyone that's not an attorney.
>> So that should be in the code, and it's not.
It's in the procedure, but it's not in the code.
>> Madam Chair, is it your feeling as excellent points like that are being brought up,
do you want us to make a point on that, direct and move on,
or just at the end we catch and put them all into the basket and see what we've got to talk about?
>> I mean, I guess that's it.
I mean, I think that maybe it's a good thing to go through which ones don't work
and maybe which ones could be looked into more.
>> Well, because I'm wondering, Deborah's saying another one of the laborers that a motion made
to have that put back in if it had been taken out.
>> Well, I think we added it to procedure, but what she's saying, it's never been in the --
I don't think it's ever been in the code, because I don't think we took it out.
Unless we did, I couldn't be remembering it.
>> Well, that's what I'm asking, you want to have that included in the code,
and is that something that will go before the council for their approval?
>> But that would be true in a -- I guess in a court of law, you can have anybody represent you.
It probably should be an attorney, but --
>> Yeah, I mean, in court of law, you can only have an attorney representing you.
You can't have anybody else.
Like, you either pro se yourself, you represent yourself for an attorney,
but I wonder if you even need it in the code.
That might be something to look into.
Like, if it's in the procedure, you need it in the code,
because the procedure is how we do the proceedings.
>> Or like, interpretive guidance.
>> Yeah, I mean, because that's what it is.
It is interpretive guidance, the code.
>> I think some of the concern about what's in the code is that it says
that the complainant has the obligation to put forth evidence, including testimony,
and the complainant is required to testify at the hearing, unless it's determined to be through with us.
So, a lot of the discussion was, do we want to require the complainant to testify at the hearing?
And that -- I think the people that are -- a lot of the discussion we've had is,
is that fair to a citizen to require them to testify?
If they have submitted all -- they've submitted the complaint correctly, they submitted their evidence,
do we -- should we require the complainant to come to the hearing that is not a hearing
about the complaint itself, but about the respondent?
>> Well, I think you should also think about the accused and the rights they have, you know,
whether whichever council member it is, should they have a right to confront who's accused them?
And witnesses against them, but, you know, that's kind of -- my criminal background is like, you know --
>> Yeah, I think they should certainly have the right to know who's filing a complaint,
but I think them putting all of the -- you've got to gather all of the data,
which they might not have access to.
>> But if everybody's in consensus that we're moving on from that,
I guess I don't really think there's a point discussing it longer.
We just have to figure out, so what do we do now?
>> I think we've already taken that out, the requirement for the complainant.
>> Well, I guess --
>> I think that's already --
>> A recommendation, right?
>> Well, there's majority consensus.
We haven't settled on language yet, exactly, because I don't know what to replace it with.
So we haven't voted on a specific proposal yet.
We're still kind of crafting it.
>> Okay. Okay.
And so there's an outside counsel, so up there, I wonder how can entire counsel be
about being able to hire attorneys to investigate them.
Just throwing that out there.
Is that likely to, you know, be something that's --
>> So we're more concerned probably about what the counsel thinks
than what's best for the citizen.
>> Well, I mean, if we present it to them and they don't accept it, then nothing gets done.
>> No, that doesn't happen.
>> Yeah, that's -- I mean, I go back to, like, they don't --
they did not pass that they can't vote on things they take money about.
So, you know, would they want to hire attorneys to investigate them?
Might be something to think about as far as that one.
>> I just think it's one of the many ways this code is like no other that I've read anywhere.
And it's -- puts a very heavy burden on citizens.
And I do think if we had a preliminary hearing, I think some of the complaints
that have been filed would have gone away just in that.
>> So at the preliminary hearing, it says city auditor responsible
for acquiring additional evidence as directed to the extent possible.
But then is that a conflict of the city auditor doing an investigation on city council
and the city auditor is an employee of city council?
>> I mean, it certainly could be.
>> Yeah, I might have a concern.
>> But I don't -- I mean, literally anybody who works with the city is
in some way conflicted to the state council.
>> Well, I mean, that's why I think when we have advisory opinions,
when we have actual hearings, that's why we bring in the law firm.
That's necessarily, you know, hypothetically thinking
at these things I don't think is a conflict.
But when you're actually talking about, you know, accusing someone in the city
of doing something, then you start getting into the conflict.
>> So we're agreed that it's okay to shift the burden away from the complainant,
but we just don't know how to work that?
Does that -- am I understanding that correctly?
>> I think there was -- my understanding from last meeting was there was majority consensus
to essentially strike the section of the code that says burden approved.
That specifically puts that on the complainant, which based on the research,
there's no other section like -- no other city has a specific section
that specifically calls that out.
>> Right.
>> That's true.
But then the question was, well, then if we do that,
what other ways do we gather additional evidence?
If we need it, who -- how do we run the hearing?
And that kind of -- there were those questions.
So there were several ideas tossed around.
I tried to put them on paper so that we could discuss them.
>> If I may -- go ahead.
>> This says gather additional evidence.
I guess my question or thought would be, like, just because you're gathering evidence,
does that necessarily mean it has to be in favor of the complainant?
Like, if you gathered additional evidence as, let's say, city auditor in this second row,
you might find that different evidence that is, like, to the contrary.
So you're doing your job, but you're not necessarily favoring a side.
>> Well, I mean, I think you could probably call that investigation.
>> Okay.
>> You know, and I think the investigation of the complaint against, you know, okay, good.
If they find something that says the person didn't do anything, that's good.
But -- and, I mean, I trust Madison's ethics, but what if you have a city auditor
that that's their bosses and they want their contract renewed?
Then they might find evidence that, you know, is favorable toward the council member.
And so that's where you have the conflict of things could go bad, and they might not want
to find that bad evidence.
So even if they find good stuff, they're still investigating the council person.
And, you know, we'll see what comes out of it.
But that's where the conflict is.
>> Yeah. That's a conflict.
Absolutely.
>> So if no other city has a burden of proof, what's the process that they use to --
>> It's often similar to what we're doing.
There's just not a section in the ordinance that specifically says burden
of proof is the totally -- I mean, it doesn't exactly say the totally the complainant,
but that's basically what it says.
>> So what you're saying is the other cities, it's on the complainant?
>> The complainant is typically required to at least testify at a preliminary hearing
or hearing and present their -- what they submitted in the complaint as a narrative.
>> I thought Fort Worth was the only city that required them to testify
and the others didn't know that.
>> No. There was -- most of them require them to testify.
I could go back to our previous --
>> I feel like we had a chart about that at one point.
>> Yeah. Oh, I'm sorry.
>> We did.
It was in May.
Thank you, Madison.
>> Oh my gosh.
How do you remember which meeting that was?
>> I know.
Madison's good.
>> Incredible.
>> Wow.
>> Whoa.
>> I feel like we looked at this chart and we talked about it and we didn't take it for now.
Is that what happened at that meeting?
>> This was in May.
>> In June, you directed it.
>> Okay.
>> And then in June, yeah, in May, you directed me to present more detail
about Fort Worth and Austin, I believe.
And then in June, there was majority consensus to remove that.
>> If I may, what is the difference between the testifying and the presuming?
>> I think there's not a difference.
I don't know.
That's -- well, I guess if we just took the burden of evidence out --
>> Well, I don't think it occurred to you.
That's what I -- I'm sorry, and then --
>> I guess if we just took the burden of proof out, that would be a step forward.
And then I guess I think what we were struggling with that time was,
should the complainant be compelled to testify?
>> I think that there should be something to replace burden of proof if it's taken out.
Otherwise, there's no direction in how evidence is collected.
And somebody might just put a complaint up,
and then nobody has the responsibility to look into it.
And then we go to a hearing, and it's like default judgment
because there's no evidence against it.
>> That's happened.
>> Well, then that means it's the complainant's burden still,
because that's the only person.
So you either have to -- you keep it as is.
You make it ambiguous, and the complainant doesn't even know it's their responsibility.
Or you figure out how to do it a new way.
Which I think I brought it up at the May meeting, if that's the last time when I was
at and we looked over this.
You're going to have to ask city council to probably hire out somebody from the outside,
or hire some sort of investigator to do this.
And I think that probably is a challenge, and I know you brought it before.
I wish we'd think about whether they would do it or not.
But I mean, I think we should, because if they're not going to do it,
we need to think of a good way to do it.
>> Well, if we're making sure that the council member or the complainee has representation,
why wouldn't we also provide that for a complainant?
Why wouldn't we give them some support, even if it --
>> The person that complains against?
We don't provide counsel for them.
>> No, but why would -- I mean, if we're doing it for the accused,
why would we not also do it?
I mean, this is not like a court of law for --
>> We don't provide counsel for the accused.
>> Or either side.
>> They provide their own --
>> Or they do themselves.
I think -- because I think, like, Paul had an attorney.
>> Right.
>> But I don't know if -- I don't remember her.
I think I'm missing --
>> His attorney wasn't a city employee.
>> Yeah. I feel like he -- that was -- I mean, I don't --
I actually don't think he hired him.
I'm not totally sure, but, you know, he did --
the city didn't provide an attorney.
>> Our office recuses itself entirely.
>> Yeah. And then we get -- we get counsel as the board of ethics.
They pay for outside counsel for us.
So you're talking about the city would have to pay outside counsel
for us and outside counsel as the investigator.
So two different outside counsels.
>> Makes it expensive.
>> Yes. So something to consider.
Yes?
>> So if -- what I'm hearing, and correct me if I'm wrong,
is that the point of contention is the phrase burden of proof.
But the process remains the same.
>> Well, based on if we just took out the wording burden of proof,
then -- or just took out the section about burden of proof,
then there's no section saying how evidence comes to us.
And so really the -- it's ambiguous.
So the complaint wanted no.
And the only way you're really going
to get evidence to us is the complaint would bring it.
>> So is there another phrase that would take care of that issue
without it sounding like burden of proof?
>> I mean, but -- well, then you're just -- I mean --
>> I know it's synaptic.
>> Yeah, exactly.
The things that you all are worried about are still there.
>> But that is the thing that I have objected to the most about --
one of the things about this code is
that it clearly says this rests on a citizen.
And I -- maybe it makes it more ambiguous, but at least let's stay
with taking it out and then figure out what we need to clean
up, you know, for the rest of the procedures.
It's pretty obvious someone is making a complaint.
It's kind of part of the democratic process
that you know your accuser.
You know, I personally would expect all those things.
I just really object to the very strong statement
that this is on the citizen.
I just don't think that's a good way to couch it.
>> So you're saying you want to just like put it to council,
let's just take this section out.
And what if council's like, okay, whoever's presenting this,
how are we -- how would the Board of Ethics get evidence then?
>> I don't think anything would change.
I mean I don't think anything is changing except
for the last sentence there.
I mean if they -- if we take this --
if we completely strike that from the ordinance,
then a complaints failure to testify
to hearing is not grounds for dismissal of the complaint.
Like that -- as far as like in practice what's actually going
to happen, that's the only thing that's really going
to change here.
Right now they still have to submit their evidence
like that farther up in the -- in the ordinance.
Part of the complaint package includes their, you know,
the name of the complainant, their information,
what section they're violating and then some other things,
the statement of facts and other documents and materials.
We're not changing any of that.
The reality is we could strike out that burden
of proof paragraph completely.
Everything would be exactly the same as it is now.
It might feel better because it doesn't say burden of proof,
but they still have to do everything except for testify.
And right now the way it's written is if they don't show
up to the hearing, not the preliminary panel hearing,
but the actual hearing after a complaint deemed actionable
and complete, if they don't show up to that hearing,
then we throw out the complaint.
So in practice, the only thing that we're doing
by striking this whole paragraph would be maybe making us feel
better about not using the word burden of proof
and not requiring the complainant to testify.
And I don't know if those are good things or bad.
I mean, I think there is some concern
over not requiring the complainant to show up at the hearing
because they -- the respondent is being accused of something
and they have the right to respond however they respond.
But are they responding to the person or are they responding
to the complaint, the evidence that was submitted?
>> So I guess, I mean, so does everyone want
to just take this out and just not have a backup?
Is that what you're saying?
Is that -- I would -- I think --
oh, I don't think Rob's talking on the subject.
>> If we don't have a title, if we don't call it something,
we're all gone.
We're gone.
Next month, let's say, we have a new group come in.
How do they find this?
>> How do they find this?
>> There's no title.
There's nothing -- there's nothing here to --
if we wanted to see the procedure here
and we don't have a title for it, how --
where are you going to look it up to look for it?
Procedure?
Yeah.
>> If that's not in there and doesn't have a title,
if that paragraph is gone,
nothing changes except that we cannot throw out a complaint
if the complaint doesn't show up.
Right now, we're not discussing who can conduct an investigation
or present more evidence.
Right now, the way it's written, that is solely on the complaint
and that's not because of this paragraph.
That's because that's the way it's written up above whenever
they have to submit their complaint.
>> And I'm fine with that.
It's this burden-improved thing.
It's something they'll turn.
>> And it's another way this document is a legal document.
>> Well, I mean, it is a legal document and it is a hearing.
>> It's an ethical code and ethics are not the same as law.
>> But you were accusing someone of doing something
that could affect them, like, you know, I don't know.
>> Understood.
>> About not giving, you know, all the legal, you know,
procedural due process to the counselor.
>> The law is a set of rules and ethics are something different
and it is something --
>> But in order to go through a complaint, you have to have a set
of rules and it's an ordinance and it is a law.
>> I was about to say, may I finish?
>> Yeah, sure.
>> It's something that I think a lot
of lawyers don't understand.
>> Okay, we're not going to talk badly
about people of certain professions, Hannah.
>> It's gone.
It's back with Rob, so I'll let it go.
>> All right, so we've spent the allotted time on this.
Is it that we just want to, there was consensus last time
to leave out burden of proof and so we're saying we don't want
to do any of the options Madison says and just go forward
with just getting that out.
I mean, if anybody has a motion for that, they can do that,
or if we need to give more guidance to Madison
to further the conversation, we can do that.
>> I would propose modification.
I like the file complaint is the complaint.
Well, same law, the column one.
Column two, I like that the Board of Ethics have,
we have a responsibility of saying here's what evidence we
would need to agree with you or disagree.
Then who's responsible for gathering the initial evidence?
I believe it's the complainant, not a city auditor
or the other options that are listed there.
And then the Board of Ethics listens to the evidence
and makes a decision.
So it's a modification of the second line there.
>> Who would make the present, I apologize,
who would make the present evidence, or present the evidence,
are you saying the Board of Ethics would then present the evidence?
Who would present it?
>> We're saying, I would say the Board of Ethics says,
here's what we need to make a judgment.
>> I got that.
>> And then the complainant is responsible for gathering
that evidence that we've listed, here's what's required.
And then in the normal course of events,
the Board of Ethics makes a decision as to, yes,
this is a valid complaint, or no, this is frivolous.
>> So the fourth form --
>> Just saying at the hearing, we just look at the evidence
that has been gathered.
>> Yeah.
>> Okay.
>> So no formal presentation, per se, by the complainant?
>> Well, they present the evidence that we asked for.
>> Okay, but so, okay, I was trying to get,
who's under the number four category then?
>> That's the responsibility of the complainant.
>> Thank you.
>> So providing, here's the evidence that I have.
If you like me saying, I saw Dustin speeding on the way
to this meeting, that's my complaint.
Then this board would say, okay, Tom, how are you going to --
we need some evidence that really happened.
Well, believe me, it did.
Well, no, that's not going to be that valid.
So I'd have to provide other evidence for you to make --
to go forward, you probably would say, no,
that's frivolous, Tom, out with you.
Or if I came in and said, here's a picture of my speedometer
and there's his car in front of me.
But, so it's my responsibility as a complainant
to say here's the evidence that I have.
>> But you don't necessarily have to testify.
>> No, I can just, it could be written, answers to the,
what the Board of Ethics says they need.
>> And if I may, if we wanted to add an "or" there,
like the complainant or the Board of Ethics,
let's say somebody gets stage fright, don't show up,
but we have all the evidence we need.
That would be kind of a weird situation, right,
to just throw it out because all the evidence
that somebody doesn't want to speak
in front of people so they don't show up.
>> So you're --
>> Not optimal.
>> I think that's kind of the same thing Tom's saying,
that the complainant could represent it or not.
>> But if we want, if we want to add an "or,"
complainant or Board of Ethics can present evidence,
that might --
>> Why not a middle point?
>> I want to say we're presenting the evidence,
but maybe just something
about like reviewing the evidence that's been gathered.
It's like we want to really be presenting it
because we're the, we're the judges right now.
>> Thank you.
>> So --
>> If we went that route, no.
>> That's quite right.
Thank you.
That's not there.
I forgot.
>> Any questions?
Okay.
>> So I mean, so currently if the,
there's a procedure where if the complainant or respond,
and respondent are a -- or a -- I'm sorry.
Send the evidence, additional evidence basically,
if they would like it presented at the hearing.
It's required to go in the packet in order for the board
to discuss it through the Texas Open Meetings Act,
the Texas Open Meetings Act.
So any evidence that they would like to present has to go
to me anyway so that it can be given to you prior
to the meeting, my understanding of how it works
and how we've done in the past.
I can't tell if Scott's like, that's not right.
So in that way I guess they wouldn't have
to necessarily present it.
It's already there for you to consider.
Just there's no necessary, there's no requirement
for them to verbally say, I brought you XYZ.
>> And if I might, if they don't present,
they're probably lessening their odds
of having their complaint agreed upon.
But that's their choice.
We're taking that burden from them.
>> If we kept the complaint but then added
or a representative, it doesn't have to be an attorney.
It might be somebody that's more eloquent in their train
of thought is something that -- and then maybe nurses can't be.
Could we then just make that complaint and/or representative?
>> Yeah, and I think that's already how the procedure rules
are ready.
So I'm going to, and you know, I don't want us to like go way
over time because now we have kind of a new idea.
Do we want to continue the discussion with this new idea
and see what we can, maybe at the next meeting
or does everybody want to accept that?
Or is everybody like, no, we don't want that?
What do you all think?
Just to --
>> I guess if I could keep things --
so what I've heard is there's general consensus
to not require the complainant to testify at the hearing
but to give them direction.
We would like you to provide answers, additional evidence
for XYZ at some point.
So I could bring back language that does those things
or we could say let's wait on that
and have a continued discussion next time.
>> Well, I don't know.
I'll let everybody say something that they want.
But maybe you come up with language about that
and maybe language with this new line that I think is kind
of hits maybe more of what everybody's thinking.
And then we kind of have a new discussion based
on the new language you bring.
And maybe it'll be like this and we'll come up with something new
but maybe we can all like, come up, like, decide on something.
>> I just have, what if the complainant is asked to come
up with something that requires an open records request?
I guess those can take what, two days?
>> I think --
>> I believe there is a response required in 10 days
but I've deferred it out on that.
>> I mean, they can be quick if it's an easy yes.
But yeah, I mean, they can take longer than 10 days
if there's information --
>> You get an attorney general looking at it and it'll --
it could be much longer.
But how about we knock it in the weeds on that tonight?
>> I think we could write something in that said,
I could facilitate that process in some way.
>> Okay. So --
>> At least help get them submit the request and things like that.
>> Okay. So how about you write a language
that, you know, I guess we want to take this out.
We don't want them to testify.
Write a language with kind of what Tom has said
and what we kind of all talked about.
And then we'll just continue this discussion next week
and I think we'll have maybe a better starting point
to maybe we can all come to an agreement.
How does that sound?
All right.
[ Inaudible ]
Okay. So Madison's taking notes.
Is there anything else you need as far
as guidance on that agenda item?
>> I don't think so at this time.
>> Okay. Item C, BOE 23-034, Receive a report,
hold the discussion, and take necessary action regarding the
definition and role of alternate members of the Board of Ethics.
So going to the agenda sheet -- I don't have a presentation.
Okay. So I guess what -- I don't know
if I was here during this discussion.
I mean, right now, it's just like can the regular members come
and if not, I mean, I don't even tell Madison.
I think we just randomly kind of picked the next person
up for alternate to attend.
I think we talked about this before and we decided, like,
you know, you have the seven people
and if there's more alternates, they can come, but they're not,
like, participating in the discussion just to, you know,
not have the ten person -- you know,
just to keep it at the seven person.
>> With our own edification to keep up with the view of the Board,
I think the extra alternate --
if they're coming and they're sitting on the side,
that's what you're saying.
>> Yeah, but they don't -- yeah,
they don't participate in the actual discussion.
>> I thought somebody had a car accident.
>> Mops in.
>> It's a page hitter.
>> Yeah, I guess so.
So I don't know, what was the --
>> I was given direction to bring this to the Board.
>> I think that we should let alternates come to the meetings
and at least have voice, and I know that there's a provision
of Robert's Rules of Order for voice, but no vote,
but the way things work when we have
to sub in new alternates every time, I think it slows
down our discussion because then we have to kind of bring them,
people who haven't been there before, up to speed,
to understand what we're talking about.
>> Well, I mean, isn't that the same issue just --
whatever Board member is not there, who's not there,
and will have a different idea the next time?
I think the -- I mean, my idea is like the Board is kind
of the seven people that if they could all show up every meeting,
the alternates wouldn't have any say.
So I guess -- I don't see a reason to really change it.
Go ahead.
>> I'm confused.
Is the question whether or not they're allowed to attend?
>> No, I don't -- I mean, I don't think so.
I mean, because it's a public meeting.
>> Okay. All right.
I think I just got a little --
>> They're not allowed to have a voice or a vote.
>> Okay. Okay.
>> Unless they're asked to sub in for someone.
>> Thank you.
>> And no other cities, once again,
no other cities do this.
So we're, once again, unique.
>> Good.
>> No other cities do what?
>> Have alternates.
>> Board members.
>> So they just -- they don't have alternates at all.
They just have the board.
>> Right.
>> That might be a problem.
>> They have no quorum.
>> Yeah. That's what I was thinking.
Because if you just have -- if you have the --
I mean, isn't it a lesser quorum if you have a lesser actual board?
And then if you -- the quorum is four because the board is seven.
So it doesn't matter that we have the extra alternate members.
I mean, to make quorum if we're missing members, it helps
because then we can call them in.
We don't always know that ahead of time.
>> Yeah. And if we did have --
if we were barely meeting quorum and we have an alternate sitting here,
we wouldn't not be meeting quorum.
And it's just a unique thing about how Denton does their boards and commissions.
>> I'm having trouble seeing that there's a problem with it.
>> Well, I'll tell you where there is a problem.
I have had to seek permission to get a change made to my historic structure.
I had to wait an extra two months because the HLC could not get quorum.
And they didn't have enough alternates to sub in.
>> Well, I mean, that's a different board.
>> Well, I know, but --
>> We haven't had that problem here.
>> I really think that the more people we have having opinions is a good thing.
And if they're willing to come, that would be a good thing.
Go ahead.
>> Are we trying to decide if the alternate members can speak at the meetings?
Is that what the question is?
>> They're not even allowed to come.
Yeah, they can't speak.
>> Well, they can attend.
>> Yeah, we have an alternate sitting here.
>> Right. I guess I'm just trying to understand what we're trying to get to here
because it's not -- I don't think it's the Board of Ethics
that defines the alternate member role, right?
I mean, maybe we have the option to allow for an alternate member and it's to speak.
I don't really think they would be allowed to vote no matter what we would like them to do, right?
>> And now we have public comment, so they could --
>> Public comment would be allowable from an alternate member, correct?
>> Yes.
>> Yeah, I don't see why not.
>> And that could be done for any agenda item, right?
>> Correct.
It's my understanding.
>> Cool.
>> Okay, so if I could -- I don't know who has a prompt or whatever, go for it.
>> All I was going to say is it seems like we just solved that problem.
>> Oh, with the public comment?
>> That's all I was going to say.
>> I just -- a little -- and I think you're right.
A little history, though, when this board first started, alternates did sit in
and were allowed to participate.
But I think there was something from the city attorney's office that had a concern about that and so --
>> They muted us.
>> Yeah, yeah.
>> I think there's some ambiguity about -- with the Open Meetings Act, about whether an alternate,
if they're participating in a meeting -- I mean, we have our code that says shall attend only upon request.
And if we're reading that to have any meaning at all, then that may mean by accepting the role
of alternate, you are accepting a position that limits your ability to speak of --
just like if you accept a position on a board, you can't speak at the public comment section
for that board or city council.
So we've read that to mean that all board members, including alternates,
are limited in their ability to participate in public comment.
>> So that sounds familiar, you know, if you brought it up.
>> So alternates cannot participate in public comment if they're not seated at the table?
>> Yeah.
>> That's been our direction based on our interpretation of the code in the Open Meetings Act.
>> So that's not an option, then, to have --
>> So if you're an alternate, you can't be a public comment if you're not at the board.
>> You could propose a change to the ethics ordinance that might suggest otherwise.
But as our office has read it, no, unless you've been invited to attend the meeting
by the city office, then you can't participate.
>> Is that all boards like that one?
>> As far as I know, it's the only one that has an alternate.
[ Multiple Speakers ]
>> So the problem is really just that it doesn't have alternates on their board of ethics
where nobody else does that.
So that makes us --
>> I think that there were not alternates.
I know there have been times in the past where it was all alternates
and one board member just to make quorum.
So it's much more beneficial to have the option of having alternates to make quorums
so that people don't have to come back for another meeting
because you couldn't make a decision, couldn't vote on a decision because you didn't make a quorum.
>> And I think that's even more important when you're talking
about preliminary hearings --
>> Yes.
>> -- than hearings, which you want to get the process going so that everyone has due process.
>> I think that's good.
I guess the sticking point is do alternates have a voice if they're not at the table?
And it sounds like no.
>> Well, I mean, being an alternate is your choice.
You could resign or not take the position and make a public comment
at every single meeting about every single agenda item.
>> Well, I think the alternate understood or understands their role at the very beginning anyway.
So because there are many times I'm over there by the dock and I'm right -- I'd love to ask, but I can't.
So I pass on notes to members and they said I couldn't do that.
But I mean, I tried.
>> I remember that.
>> But then I thought back, well, you know, they're right.
So except the horseshoe road, so I was -- I lived with that.
>> All right.
So is there any motions or anything we want to do as far as agenda item C?
>> I would like to keep it the same.
>> All right.
So if we keep it the same, I don't think we need any motions and we can move on.
I kind of -- from looking at everybody, I think there's a --
maybe not unanimous, but there's consensus that we'll just move on.
All right. So agenda item D, BOE 23-035, management reports, and so these are -- I guess this is --
>> Yeah. It's really just informational.
We issued two advisory opinions since the last meeting, and the ethics ordinance amendments
that we had previously discussed was officially passed on July 18th.
So we are technically under a new code now.
The management report has kind of summarized what actually changed.
I know the rules of procedure amendment passed that same day as well,
and so we now officially have public comment with the reasonable rules that you give direction for.
So that's really just to make sure you're aware of all those changes
and the advisory opinions that were issued.
I can answer any questions that you may have about that, but it's really just kind of an FYI.
>> Okay. Does anybody have any questions, any comments about any of these three items?
Is it part of our packet?
Okay. I don't think there is, so -- all right.
I think we've gone through all the agenda items.
Is there anything we're missing?
Everything's been covered?
All right.
So I guess --
>> Oh, we have the future meeting.
>> Oh, it's the future meeting.
So I just have to tell D here, is part of D future meeting what we're going to discuss?
>> All right.
It should be on the agenda.
>> There are no closing items or how many agenda items?
>> It's E.
>> Oh, okay.
I might --
>> You were at the wrong meeting?
>> Yes.
>> I missed E.
>> Yeah. I was on the wrong agenda.
>> I think --
>> It's not on there, so we can't talk about it.
>> Yeah.
Sorry. I think we have already talked about at least one thing we want to talk about next meeting.
So that was part of -- was on the agenda, the --
>> Touchable.
>> Yeah. The burden-approved stuff, so we know that.
>> We'll figure out how to change everything that was scheduled for us.
>> All right.
We'll -- without an E, we'll call the meeting adjourned at 621.
Am I missing anything?
Okay, all right.
Thank you, everybody.