Dec 04, 2023 Board of Ethics on 2023-12-04 5:30 PM

All right. Good evening. This is the Board of Ethics meeting on Monday, December 4th, 2020. It is now 5 30 p.m. and we have a quorum here. So I don't believe we have any presentations from members of the public. So we will proceed to item number two. Receive a report, hold a discussion, and take necessary action regarding Code of Ordinances, Chapter 2, Article 11, Ethics, Section 2-269, Definitions, and Section 2-273, Prohibitions. I think we skipped the minutes. We can go back to it if you prefer. Oh, I'm sorry. Okay. Okay. So first we need to look at item BOE23-050, which is the minutes for the last meeting. So do I hear a motion to accept them? So moved. Second. Second by Tom. So motion by Dave and second by Tom. So all in favor? Aye. Aye. Aye. So it passes unanimously. So now, yes. One question. I just want to back up for just one second on this item number one, presentation for members of the public. This is brand new and I just wanted to clarify with Madison. If citizens have items that are on the agenda, they've got three minutes. But if it's a non-agenda item, can they use that item without discussion? Yes. Yes. That's correct. So citizens can sign up either to present something that's not on the agenda as a presentation from a member of the public, or they can sign up to speak on an agenda item and then there can be questions at that time. Does that answer your question? Yeah, but either one can happen from that base without questions in the case of a non-posted item. Correct. Okay. Okay. Just want to clarify that. And the ones for a posted item will be just prior to the item? Is that correct? I don't know the exact order of Scott question. Okay. Yes. Yeah. Okay. All right. So we will proceed with BOE 23-051, receive a report, hold a discussion, and take necessary action regarding code of ordinances, chapter two, article 11, at the exception 2-269, definitions at section 2-273, prohibitions. So I guess what we have first is the management reports, management report, or I should not have downloaded my thing. It was the one you called before. Okay. Okay. So we're ready to start discussing. And I know Madison put a lot of work into making a presentation, so. Okay. I will move. Yes. So based on the direction from last meeting, I put a presentation together to begin discussing the conflict of interest section of the ethics ordinance. So based on a review of peer city ethics ordinances, Weshler's model code, and the city of Denton's employee ethics policy, there are kind of, I found three general areas of code that shape a conflict of interest prohibition, including kind of the rules that are involved, and the relevant relationships, and then the fuel and requirements around disclosure. So then I'm going to focus more on kind of the broad versus specific rules that we've been discussing over the last couple of meetings. So to do this, I've prepared five examples based on peer city ordinances, the ethics, the employee ethics policy, and the model code, and I'll run through them from kind of least specific or most broad to least broad or most specific, and then hopefully get some direction on what direct, how you guys would like to have me bring back language around how we want to, you would potentially like to change the ethics conflict of interest section. And then we can, then after that, we'll kind of talk about the rest of those sections as well. I'll bring back similar points for discussion. So to start with the city of Houston, this code does not actually even include the words conflict of interest, but instead prohibits city officials from engaging in any business or professional activity that conflicts with the discharge of official duties. This is the least specific of the conflict of interest examples, as it provides minimal guidance to city officials on the terms business, professional activity, or conflicts, what those mean. In addition, compared to some more specific codes, it does not provide a baseline for comparison when determining if something is a conflict, and I think that'll make more sense kind of once we look at some other definitions. Next is the city's employee ethics policy. So this is slightly less broad and does actually use the term conflict of interest. It's more specific as it does include the concept of personal and financial interests, however, it still provides relatively limited guidance on what that means to a city official, as those terms are not defined in the policy. In addition, it also does not include kind of a baseline for comparison when determining if something is a personal or financial interest. So then this middle option on this kind of continuum is Weschler's model code. This option uses the term conflict of interest and creates definitions for personal and financial benefits and interests, although they are fairly broad. In addition, it provides that comparison baseline that I've been talking about by saying that only benefits not shared with a substantial segment of the population create a conflict. So that's kind of one of the key differences between the first two and this here. Next is the city of San Marcos' code, which is slightly more specific than the model code and defines economic interests and benefits to provide city officials with guidance on circumstances that would create a conflict of interest and provides guidance to the ethics body on interpreting the word effect. It also creates a comparison baseline using the public or a substantial segment of the population. The major difference between this code and the model code is the focus on kind of effects to economic interest versus the resulting benefits from an action. This is kind of discussed by Weschler in the model code, who I'm paraphrasing here but says that the purpose of an ethics code is not necessarily to completely prevent conflicts of interest, which is often possible for volunteer positions, but to ensure that conflicts are managed honestly and responsibly when they do come about. And then finally, pulled together the city of Dallas as well, it has kind of the most specific rules of the five options today. It's very similar to the city of San Marcos, however it also creates a definition for substantial economic interests. This term includes some specific financial thresholds that create a conflict of interest, which is currently similar to some of what Denton has right now, and the $600 list essentially. But still, as I previously mentioned in previous meetings, Denton doesn't actually have a general rule regarding conflict of interest right now, only those specific ones. So in that way, Dallas has a broader code than Denton does at this point. So this slide is to try to summarize all of the rules of each code that I just really went over really quickly, and so really I'd like to get some direction on the board via consensus on any kind of change to the language in the code that you would like me to bring back, if you would like me to, or potentially future research or anything for future discussion. I could go back and forth, but now it's y'all's turn. Okay, so we'll open the floor for discussion. So what would you like to, what is looking really interesting to you? I would recommend a broader definition that's not specific, because just like AI right now, I don't know what the potential impacts might be. And so for us to say, here are all the potential conflicts of interest, it'll never be an ending list, and we can't, I don't have a crystal ball, so I don't know what that might be. So I would recommend a broad definition, but not a list of, and here are examples. I thought medicine did a really great job of delineating the general and specific. Andrea? And I wanted to add to that as well, because I've actually, I started out where I, when we first started the discussion of the conflict of interest, and we were talking about the different limits and everything, I started out as somebody that was, I thought, okay, we'll do, we'll do the, we'll update the limits, and that will help us have better ethics code. But then the more I was thinking about it in those times is, we don't know what's going to happen in the future, right? And we do not know, so we are all actually trying to address something where, if we are too specific, then we will end up in a similar position as we did with the ethics, the problem that we were presented with, where we just, we cannot respond because our tools are so limited and so specific that we then cannot actually hold somebody accountable for something that may stare all of us in the face as, yes, that is a conflict of interest. Thank you. Dave? Well, I want to piggyback on both of what I've just heard. It's been about eight years since this passed, and I've been wondering how long it's going to take us to kind of shut, you know, some of these specifics that have been so burdensome over the years and get us back to where we're looking at this from the standpoint of the model code or some of these other cities, because like you say, we don't know, you know, and these, this, all of this pending matter nonsense has restricted us, our understanding, for way, way, way too long. And so I'm actually on this list here before we get, I mean, I'm kind of stuck between our current ethics policy and the model code itself, but we have some issues because our current ethics policy does not go beyond the city manager making a determination. So, you know, for eight years, I've been more inclined to, if possible, get us back closer to this model code. It's Wexler's and whoever, you know, whoever's written it and updated it, it would be a major improvement for the city of Benton to kind of backtrack several years and give some serious thought to that model code, what is good about it, what may still be, you know, what may still need to be modified. Are you talking about the model code for the conflict of interest? Yeah, well, we have an issue here, obviously, in Benton, because in January of 2015, when this original code passed, it was just so singularly focused on all these financial standards. So the 6%, 500, we got so trapped into a narrow stream early on, it was just almost impossible for us to get back to where we should be to take care of this city from a broader perspective, like you say, not knowing what the next conflict may be. So I'm very much gratified and just almost elated to see us getting back to a broader discussion. Question, though, I just what happened? Was the current conflict of interest, the standards, the thresholds? Was that set aside? Is that not an option here? I mean, I'm glad it's not. Someone asked me what happened to the current standards? Well, it currently exists. It is an option. I guess I didn't add it. But it's option six, I guess, is to just keep what we currently have. It didn't seem like that was the will of the board. So I didn't include it. I agree completely, but it's still... I mean, it currently exists. It has to go through council for it to change. It would definitely be the most specific. Right. And it's so specific. It's like threading the needle through a really tiny hole. Well, this is one vote only. And this is why I've been asked to come back and join this group. This is one vote for the model code and getting us back in the direction of Wexler's law code and what other and what the majority of other Texas cities have done with their ethics code. You cannot get in a car and drive a day and find anything similar to what we've got right now in Texas. This $500, 6% stuff is just, I hope it's headed for them. Okay. And if you want to, if you're asking... I'm sorry. No. We had long and broad discussions about changing those limits and then it was shut down by city council. So that was, and I think that is one of the reasons why it came back up for us to discuss again, because we had made adjustments that we tried to get approved, but they were not. But what I'm hearing you say is that in looking at the end, you're realizing that wasn't the whole picture. So I think Dustin, before... Yeah, I know. I spent a lot of time trying to think about this after some of the conversation at the last meeting that I was in at about those limits and how do you define that? Like $500 to me is different from $500 to someone else on the board or someone else in the city. And I went back to the model code and I was trying to understand why it's written the way it's written with kind of the way Madison framed it as sort of middle ground. Like there's some specific things here. There's some things that are more general. And looking at the website for the model code, if it's all right, can I read this comment? This is from Westford. And he's giving an example about, from our article in Tennessee, and there's some specifics to that about whether or not the mayor in this town benefited from something and whether or not it was a conflict of interest. And he said he didn't see any conflict because he didn't get it personally. And Wexler's comment is to look at it that way is to ignore the principal purpose of an ethics code, to instill trust in government to make its decisions seem impartial so that people do not believe the government is run for the benefit of those who run it rather than in public interest. And so I think that's when I was trying to like get in my head like what's a what's a good dollar number, what's a good percentage of your I don't like your your your income or whatever they come from something that that I think is totally missing the point that this is not you know we're not setting specific limits here that says an ethics code. We have an entire board of people who are here to make decisions and assess things for the benefit of the city of Denton. And while I think in some other meetings I've kind of had in my head well I don't want to be on this board and try and make a decision you know is this really that bad or not you know is this is this benefit that they receive or potentially receive is that enough money involved and that's to me I realize that's the completely wrong approach it shouldn't be the amount it is it's that it's it's to make sure that the people making decisions with the power have done that in partially for the benefit of the citizens. So that's kind of how I would that's how I'm going to approach this discussion on whatever decision. I recall I was a one of three you know a meeting that and I forget the council woman's name but she was asking appropriately because she is on a she's a volunteer on a board and wanted to make sure that would it be okay for this particular company to install American flags and she just wanted to make sure that was she making the right decision and that there was no conflict of interest. I like a general code that causes city employees to say I'm going to take this to the ethics committee as opposed to Mrs. Dustin is this 500 or is it 499 you know no is the is am I going to approve something or recommend something that's in the spirit of the code. It's the intent and who benefits. And she had the right intent. Yeah. And am I getting ahead of things but is there somewhere where we'll talk about disclosure? Yes eventually not tonight not tonight okay that's part of the definition. Yeah okay. One of the most important things to me and one of the issues that is kind of a common denominator of everything on that board right there that we do not now currently enjoy in Denton is the fact that most all of these other cities and municipalities most of their ethics codes and especially this conflict of interest covers not only pending matters but future. Something that's going to be voted on next week is this is one of the most one of the most important issues to me here in Denton the way we're awarded now a pending issue not only can the current council member without a friend involved not only can you discuss it up to the point of the vote but the day after the vote you can buy in through a deal not so. Yeah and the problem with Denton just for clarification is that the conflict of interest definition in the code is narrow but then when you look at the glossary that's where it says it's something that has I mean it's I looked it up and Scott can correct me if I'm wrong about legal leaves but I think that pending matter means anything that could be voted on now or in the future and it's what's in the glossary that kills our definition. Well the definition yeah the definition in the code is what governs the way time you see the pending matter the the Webster's Oxford University doesn't matter those those it's just what's in our code and so that paragraph in 2265. So that's the problem is that it takes it from narrow to more narrow and I've never seen pending matter in a conflict of definition conflict of interest definition anywhere. Well they kind of go ahead I mean just to mention it I mean if you read that chapter it's they mention it more than once it's like now once you understand that once we vote on this you know all bets are off. I think that pending matter part the way that it's written it really talks it's really about disclosures and the requirements for when you have to disclose and part of the issue that I think y'all are discussing is because we're really only have that a disclosure section in the conflict of intersection there's nothing that's capturing anything else apart from when you have to disclose. Patricia was there anything you wanted to add? Well I just was asking about the disclosure but so would we like San Marcos better because it has a little bit more to it than it's the most it's the most um I don't know I don't know what word I know you've read it too but there were parts of that code that I read and I was like whoa well yeah I mean it's kind of like it but is it too much do you think? You just get in trouble when you try to be too specific in some of these ethics codes and that's kind of what they do here and so this is this is kind of my dilemma right now you know I'm still I'm kind of torn right now between you know our current ethics policy and the model code because our current ethics policy stops and there's a lot of work to do beyond where we are right now in terms of processing and. Just to answer your question I was so startled by what I read in the San Marcos code not just with conflict of interest but other parts of it at one point it says if you're a developer don't even think about being on city council I think it says something and that's when I so I called a friend who lives in San Marcos and I'm like why is this so specific and she said well we've had some problems and I'm like okay so it's scar tissue okay and she said yeah so yeah I don't I don't want our code to be scar tissue I want it to be something that is pretty elegant I guess so so I know I know you've read it too well no that's a good way to put it again it's yeah I want something more classy for lack of a better word yeah but I what we have is not it's it's not good so well again the issue for me for most of these is the issue of current versus future dilemma you know future conflicts so to move things along if I'm not stomping on everybody I'm hearing pretty good consensus that we need something different so would someone be willing to put that into a motion if that's how you feel I move that we recommend the model code to replace the current okay so Patricia has just moved that we can you clarify the definition that's the model code definition well I think I think Madison's looking for I don't know that we need emotion today because I'll have to come back with language anyway I'm hearing consensus that we need something different and I like to put that in a motion you certainly can but I am hearing that consensus for sure I think the difference is just you would need a motion if we were right now moving to amend the ordinance but there's no language drafted right now what to give to city council what if we look at Robert Wessler's model code pick another one or two I'm not sure Dallas's the last time I looked in on there because I creep on these things the last time I looked at Dallas they said they were coming up with another code so I don't pass those a good model also okay um what if we look at the model code and and and if we look at it we could potentially say we want to look at something else too would that be an okay motion or do you want to um I guess when you say look at what do you mean by that I'd like the wording so that we can examine it and see what we think about it I mean this is what this is not all of the code obviously this is what we're referencing here if you mean like potential language to change then I can do that let's look at the potential at the next time I would like to give guidance that we look at the potential model code and is that pretty much I guess the specific part of it is narrow coded section 2-273a that's conflicts of interest and has a couple of paragraphs and then it defines that with some of the percentages and the dollar amounts and I think if we were to take that section and start by replacing that with the model code section on what how how that is defined that would be kind of the starting point because the model code doesn't have those specific things I think they're the only the only actual monetary amount is um is for the election campaign contribution which I think is separate yeah I think it's a different section yeah so I don't think that would need to be in this part of it I think that could be omitted from our code since that's that's kind of a already listed as an exception and Madison one thing I love about the model code is that each section he writes like an annotation almost about why why he thinks that's a good thing the way he was thinking when he wrote it could we have the annotation as well I mean just cut and paste it out of there stuff you want me to just not in the red lines obviously but for you to discuss yeah yes because I really I love the way he does that because it'll let us see if we think it's a fit um could I have a quick question the the language that we're asking you to look at from my own understanding would that go into the section two dash two seven three that the bar missions where we have the conflict of interest discussions with liberation prohibition disclosure requirement and definitions of conflict of interest is that the portion where it would go my understanding is but yeah so we go in that prohibition section okay because I think we need to be very clear about what sections we are looking at and what are we which parts we are replacing or changing right understanding is essentially you would like to replace this section okay okay that's that was my thing the model code okay and then I think it's likely that there will be some decisions we need to make about not necessarily the dollar thresholds but some of these like relationships that we want to include our code uses consanguinity and he uses spouses um and he just you know household aunts uncles grandparents so he just lists what all of those relationships are which I I want it to be something that a person who doesn't know what consanguinity means would be comfortable with so I like the way he lists it all out like and then his wording I mean just to be specific to that point you're making after that avoid your parents or risk of impropriety then he goes on it's shall not take any action likely to affect the personal or economic interests of all these people yeah his or her parent child spouse or other family member with the second degree of consanguinity or affinity his or her outside client a member of his or her household the outside employer of this official or employee an entity in which the official or employee knows that any person listed in the subsection holds an economic interest has that term next there's so bright this is so beautiful yeah it's really very easy to understand and others that I've read I'm like I'm not sure what they're meaning here so yeah so my intention is to basically come back with essentially this language that's basically replaced this section section three and then have some discussion about are there relationships within this list that are not included in the model code or how do we want to define the relationships that it are considered basically this piece of it yeah how do we want to do that and then and then the meaning after that we can discuss this disclosure piece because the model code also has a separate section about that so we can talk about that as well and that that's the piece that is involving any matter right so that's the direction we're giving you all right and is everybody okay with that yes yes yes thumbs up okay there you go all right makes it easy for us for us yeah medicine's a pulling double duty right now because tammy is retiring in december so yeah so thank you medicine um so i guess the next item would be boe 23-052 management reports sorry uh yes so this is just a quick update on we had that discussion about alternate members last time uh the council gave direction to eliminate alternate members um that ordinance will go before them next tuesday uh and then if that occurs there will be no more alternate members currently rob rainer's term is expired so we will not roll over and then uh deborah sorry um her term is not expired um but i don't know she won't necessarily stay on it'll just kind of depend there is a vacancy on the board currently so i don't know what's going on yeah so that's the update there i can answer questions about that if you have any questions yes so does any part of this conflict of interest to enter in next week do you make any comments or recommendations no so we're not at that point yet no we don't have any language yet to present to the council okay okay might just follow up on that my intention if we discuss it in january and then february is hopefully we can have language to go to council in march so that that'll go in april the april is time frame that's kind of our typical cycle um if that is fine if that timeline works for you would it be since uh since we have that wall what we have one alternate and is an open position would it be appropriate to to ask to move her to her to that permanent place she could be informed that if she's interested she could talk to the council member who has an appointment a position because the all of the appointments are sitting wide so they don't have to live in the district that person yes i can certainly inform her okay um so that's the end of your report so we'll move on to boe 23-053 receiver report hold the discussion and give staff direction regarding future meeting topics uh yeah so essentially um right now on the agenda for next meeting is the minutes and uh this continuation of conflict of interest uh based on how tonight went i think we could add something potentially if you would like to um uh these are this list is other things that we've looked at i think some of them are not relevant if we're planning to change the whole definition so some of these conflict of interest ones you know maybe you need to look at but there are some other ones on here as well and then there's the potential to add eyes if you would like to what if we just leave it to that one item and keep it simple keep it simple i mean this is a big very important item so i want to make sure we have plenty of time to discuss it because now we're going to be starting to go through specific areas is that going to include the um i guess the first two sections of that and deliberation prohibited and disclosure required part of it i was i was going to ask if you would so um essentially we go back to this slide we've discussed the section today uh we could just discuss this section or you can discuss both next time if you would prefer to know yeah based on the model code could we discuss both how would you guys fill it on that i think we should put it on it for both and if we don't get through it then then we can delay it yeah but yeah take a look basically our posts on it okay question where are we in the process of do you take this burden of proof back to council next week or when no no so historically we've taken all of the proposed amendments based on a year's work of work at one time so the burden of proof and whatever we come up with out of this would go in the spring of 2024 that's still pending as a four two vote we had here last so it's been it's been approved to go to council it just hasn't gone yet because typically we take it as a package with other items as well can we review next next month what is on your list or where we're at in terms of what goes to council next yes i mean just a review would be helpful yeah i think i think it's up to date but there's um this list of items it's hard to see but currently currently that's the only item the burden of proof elimination okay that's on the list this happened so the only reason i asked that is someone has well two different council members have pointed out to me that when a list gets to them this long they kind of go it was it was a very i think we would do ourselves much better if we kind of focus that knife a little bit if we know these two down it would be yeah rather than take them the entire laundry list yeah i guess the word is let's prioritize these things because this burden of proof and this conflict of interest is not the same or as important as whether we use the word he or she you know under item six so so um i think having been there i definitely think we overwhelmed him last time very honest i think i think it nicely actually so i think two items you know once we get this two nailed down then we go and these are both very substantial items they are that was my question tom i've been on this committee for just a little over a year am i correct that there have been no ethical complaints brought to this committee um there have been there have been um requests for clarification oh sure my point being is uh i would offer up for consideration that we complement the council and the city employees for adhering to the spirit of this there have been ethics complaints we just ended you have been that sustained probably yeah you know in the history of the ordinance but if it if it was am i correct if it was uh requiring attention it would have been brought to the committee is that correct correct so you're saying it was dealt with outside of the committee there was no need to bring it here i mean we've had a several hearings like the board of ethics has had ethics hearings you say not since he's been on oh but not that's you've been on yeah right i'm sorry i hear you're in two months yes that's true so i'm just saying good job how often do we tell the city uh the thank you for making our job easier but part of that answer pardon me for just a second the part of that answer is the fact that the burden of proof has been kind of a wall because there have been people that i know that have said i would file a complaint but there's no way in heck i'm going to do that if i'm going to end up having to present that to the board of ethics so there have been you know behind the scenes there have been some citizens that have concerns that may or may not have been filed because of the wording of that burden of proof that's been an obstacle and also the conflict of interest that's so narrow i think well i mean i'm not going to get names or specifics but there have been three people that told me specifically i would have filed that if i was but if i'm going to have to present that myself no way in hell am i going to do that so that's been kind of an obstacle i think we clear out now with this burden of proof and so i think we'll have a better code the way it will be worded and you may actually see you know complaints are not necessarily a negative they can be a very they can be a positive in many situations so i think it's likely a very possible but you'll see more activity to improve this when we remove some of these obstacles to filing and presenting complaints i just think it's positive especially at christmas time thank you for following the spirit of the ordinance right no i know exactly what you mean okay i will say one other thing eight years ago the city employees did not have a code of ethics and they do now and i have noticed an improvement so there you go that i mean they have a viable code not saying anything we're making good we're making progress yeah i think that's that's a good one happy holidays okay um yeah just a reminder our next meeting is january 8th at 5 30 p.m okay thank you so if there is no further discussion this meeting is adjourned at 8 11 oh i'm sorry 6 11 p.m thank you guys thank you good discussion