Feb 08, 2024 Board of Ethics on 2024-02-08 5:30 PM (Special Called Advisory Opinion Panel)

Alright, welcome to this special call advisory panel meeting of the City of Denton's Board of Ethics. It's 5.30 p.m. on Thursday, February 8th, 2024. I'm Madison Rorschach, Denton City Auditor, and the staff is on to the Board of Ethics. I'm going to hand it over to the three-member panel to select the presiding officer. I know one of you would make a motion to appoint somebody to be your-- I move that Dustin you be our presiding officer. Second. Do we have to vote? Yeah. All in favor? All in favor. I don't know if I'm supposed to vote. Unanimous. You can or you cannot. Okay. So I think that we don't have--do we have to call the meeting to order now? No, I didn't. Okay. So we have one item for consideration tonight, EOE 24-010, request for advisory opinion number 24-001, received February 1st, 2024 from Council Member Byrd concerning potential and proper use of influence, applicability, and recusal recommendations. And then the agenda information sheet, did you guys have time to look at it? Okay. Well, we can start with that and the request, and in general, I guess there were a couple of things that I wanted to point out on this in the initial request. This is a public service group that Council Member Byrd is a member of, and they're planning a virtual meet, the candidate event in a few weeks, and it says, "Since I'm in city government, they asked if I could moderate the event, which will include city school board candidates." From that, I mean, I think it implies that Council Member Byrd would be participating as a representative of the city, since that's in the request. It does state in the last email in the agenda packet that Council Member Byrd is not on the board for that group and is not receiving any gifts or payments at any time. So just to point those things out while we consider this, and I think Madison had some discussion back and forth with Member Byrd on the possible sections of ethics ordinance that would apply under conflict of interest, yes, and improper influence. I went through those and looked at them, and as far as the sections of our ethics ordinance are concerned, the improper influence, I think, is the only section that applies, except for the abuse of resources, that since this is an online forum, I don't think that use of city facilities, personnel, equipment, software, supplies, or staff time for this purpose would be allowed under the ethics ordinance. I don't think that was really the request from Council Member Byrd, but I wanted to point that out. The section of improper influence, there are five paragraphs under that section. The last two, I don't think, apply at all. Paragraph four is not applicable, and paragraph five is not applicable, because this is not for state or local government agents. And she herself is not running for office at this time, right? Correct. That's correct. So the first three items under improper influence could potentially apply. It wasn't clear to me if all candidates running for those offices that she mentioned in her email would be invited to this forum. If it's only for certain candidates that are invited, I think that is questionable to me. And I believe if she is endorsing any of those candidates, since she is appearing as a city council member, then I don't think that that would be allowed. That's not laid out specifically in our ethics ordinance. I tried to do a little digging on that and see if that appeared in the model code. I didn't see anything clear there. The only thing I found was in the ethics ordinance for Sunnyvale, Texas, they have something specific about political support at public forums, and it discusses something very similar to this situation. It says council members may support board and commission members who are running for office, but not in an official forum in their capacity as a council member. So that's something as a reference. Their ethics ordinance does specifically would not allow for endorsement. The request from Councilmember Byrd says nothing about endorsement, it just mentions moderation of the event. And as moderator, it would imply it's neutral. She's being neutral, she's moderating, but I guess at that event, if she then changes from moderating to actually becoming political, then somebody could complain about that. But on the face of it, I don't see that there would be any conflict of interest if she stays just as a neutral moderator. Right. Yeah, that was pretty much the conclusion I came to. So the only things that were questionable to me were whether or not all candidates for those in those races were invited to the event. And do we know that? We don't know that. And I don't think, I mean, Councilmember Byrd is not here, and I don't think that we could ask if she were, right? Yeah, per the rules of procedure, we're not allowed to hear comments from the public, though we have suspended those in the past to hear the requesting city official before. Okay. But she's not here. Right. It's my understanding that Vicki would be interviewing, as moderator, would be engaging directly with the candidates for her existing seat. And as a district representative, this gets a little bit into the general appearance of impropriety. And I know this is not part of our specific code, but I'm a little bit concerned that this is a risk that Vicki would necessarily not need to take to get the job done. In Rotary, her organization, there are a number of other individuals that I'm told could take that spot. And I commend Vicki for filing this, and I absolutely consider her an example of transparency in this matter. But I'm very concerned if a debate went well and nothing happened, like you say, but political debates and political events in Denton have a history of kind of turning a curve. And I would hate very much to have Vicki in a situation where she would have to essentially ride her on two candidates. And so I'm very concerned about how this could end up. So as a disclaimer, I know Vicki fairly well, she's my representative, she's actually a neighbor, and I'd like very much to approach this from the standpoint, from the appearance of impropriety. And I know the appearance of impropriety is not a specific part of our code as it's written, but it's a significant feature of most every other ethics code in Texas. And so you avoid unnecessary risk when you can. And I think this is an opportunity to save Vicki some possible trouble. And again, even her filing this request even suggests to me that she's a little bit aware of the position that she's putting herself in trying to represent Rotary. So I don't know if we're at the point to actually state our position, but I'm very concerned that Vicki, should she choose to moderate that. And there's all opportunities for her to supply information to the questioner. She could be in the background, she could do almost anything that she would need to do to support either one or both of these candidates. So, but as the actual moderator, to me, that becomes the issue. Yeah. Okay. I guess for the specific request, I think it sounds like we're kind of all on the same page, that what she has been asked to do in itself is not a violation or just moderating the forum is not a violation of our ethics ordinance, because she is not being paid. And as long as all candidates that are, the invitation has been extended to all the candidates in those races, to me, that would not be granting special privilege or benefit to any individuals there as long as all the candidates were allowed to participate. Going through all of that stuff, it seems like there is a potential for, in carrying out that duty as a moderator, it is possible that if there is any sort of endorsement there that is given at that forum, then that would potentially be a violation of the ethics ordinance. At least, as it's written in, not specifically in our code, for some of the example codes that we use, it would be a violation. When I've attended some of these kind of things, it seems like there's questions that have already been thought of, and each candidate has asked the same question and given the opportunity to answer the questions. So usually, the moderator doesn't really get into anything political with that. So it seems like it could be pretty safe, but that's for her to decide, and if it does go south, like you were suggesting it could possibly, then that would be another thing. But we don't know the future. We have a crystal ball to see what's going to happen. So it's kind of up to her if she wants to take that risk or not. I would say the only thing that, just on what we know today, the only thing that would make it a clear violation of our ordinance, to me, would be if, at this forum, the candidates that are running are not all allowed or were not all invited to participate. That would be the only thing that would be black and white to me based on this, because from her request for this advisory opinion, she stated that she would ask to do that as a member of city government. So we would include that in our advisory, that as long as all candidates are invited, we see no conflict. That would not be a conflict or a violation of our ethics ordinance. I think that how that is carried out, how she carried out the duty as moderator, there is a potential for something else or one of these things to be violated. So I don't want to make that choice for her or say that you shouldn't do this because just doing it is not a violation as long as everyone that is running is invited to speak. I agree with that. If it's helpful, we're posted basically to give her two things, would it be a violation of the ordinance, but also should you have a recommendation on if you should do it or not. You have to at least tell her if it's a violation of the ordinance, and then if you would like to say, but we recommend you don't do this or we recommend you do, but you have to do it this way, you can do that as part of the advisory opinion. Okay. Yeah. All right. Can I ask a question? Sure. When I read the materials, I didn't think that they were inviting her to be moderator in her official capacity. Am I wrong? It's not clear to me necessarily. It's not an official capacity. Well, it says moderating in virtual. That doesn't say as a council person, she is moderating as a member of the group. It's in the initial email, the third sentence here says, "Since I'm in city government, they asked if I could moderate the event, which really includes any school board candidates." So it doesn't say they invited me in just the instance. Yeah. Yeah. Yeah. Yeah. I don't know the answer to your question, but I read that as ... Well, I think if you're going to make any recommendations, if she chooses to do it, she would say that she has to make it clear that she's not appearing in her official capacity as a council member for the City of Denton, and then you can list some reasons. Just to give you some ideas, I looked at some of the ethics opinions on the Texas Ethics Commission, and so some of the things don't appear in your official capacity, make it clear it's not city-sponsored, all candidates provided the same opportunity to appear and speak. She can't show deference in her questioning, allow one to speak more than the other, and then what you brought up are certain candidates excluded, and then however she moderates, it could be perceived as an endorsement, and she could draw a complaint that way. Yeah. So those would be the ... In your recommendations, you could either make whatever recommendation you want, or you could list some of these concerns or factors for her to consider. Okay. That makes sense. So I don't know if we're ... It sounds like we're, I think, all on the same page. The participation is not a violation of her ethics ordinance, and if we can make some recommendations to her, outlining those things that if she is not in her official capacity as a representative of the city council, and that all ... She needs to make it clear. She needs to make that clear at the forum, then that's acceptable, but there is potential for a violation, depending on how that is carried out, in any ... Yeah, we wouldn't necessarily recommend that she do it because of the perception that she might be favoring one candidate over another. Yeah. And I don't think we can answer that today. So you can't say that ... I don't think we could possibly answer that today. We don't know. Whether or not she would violate that ordinance by doing that. Her moderating the panel is not a violation of the ordinance, but in carrying out that duty, she could potentially violate our ethics ordinance. Yeah. That's like I said. As our code is currently written, minus that appearance of impropriety, I agree, but I just believe on Vicki's behalf, this is an unnecessary risk. Right. That's okay. That's what we're trying to say. Yeah, I'll just add, as long as all candidates that are running are, were invited to the forum. If they're not, then that would be a violation. Can we add on that she ... Yeah, in your recommendation that she should make it clear she's not representing the city. Yeah. As a city council member, all candidates should be invited. Yeah. Say that. Okay. What she said. And then all candidates be allowed an equal opportunity to speak. Oh, that's good to know. And then if, you know, it could be perceived that she's endorsing one or another in the manner in which she questions. Yes. Do you want to throw that in? It could be perceived. It could be perceived. And they possibly, and then may possibly violate the evidence. Yeah. There's plenty of other people in the organization that probably moderate it, so she doesn't really need to take that risk. It could be perceived in how she questions the candidates, because that's kind of what they said in these ethics opinions, giving somebody more time than another. Right. In your facial expressions. Right. And body language. I like you. I hate you. Okay. Do we need to have a vote? I believe we need to have a vote on if it's a violation of the ordinance, and then if you would like to, according to what conditions that you've discussed, and then if you would like to add a recommendation about some of the perceived potential and things that could occur if she did it. Okay. I would think we need two separate motions. Two votes. Yeah. Is there a motion for whether or not this is a violation of our evidence ordinance? I believe that it is not a violation of the ordinance. Any second. I will second that with the only caveat that, again, I'm very concerned about how this could even turn and become one of Vicki's problems. Sure. I think for today, though, we can make that decision for her. We can tell her whether or not this is a violation. Moderating is a violation of the ethics ordinance or not, and my opinion is that it is not as long as all candidates were invited to speak. Yeah. And then we can make a separate motion. We'll say your concerns out of a second vote. Having been a city candidate more than once, debates often can turn one way or the other, and moderators are often put in the role of having to defend one side or the other. And I know Vicki, bless her heart, I just would hate to see Vicki in that position. So, yes, the code would allow her to do that, but I'm just going to hold that I just don't think this is a good idea. So is that a second for the motion? So it doesn't violate as long as all candidates are invited to speak. That's kind of the motion that I'm hearing. Yes. And then you can vote on it. And then you can make a separate motion for what we include in the advisory opinion or recommendations on whether or not. And how she conducts the moderation. How it is conducted. Yeah. I'm very uncomfortable with the moderator label in this particular case because I know how political debates can occasionally go. Sure. And I just think that Ms. Byrd could do well in an advisory capacity. I have no problem with her involving herself in any debate, but this moderator label bothers me greatly. Yeah, I mean, I'm not arguing that at all. I mean, I think that makes sense to think through those things and for her to make a decision on that. But I mean, we can only go off of what is on. They don't know I'm okay with that. Okay. So that's a second for the motion to recommend that this is not a violation. Her moderating is not a violation of the ethics ordinance. As long as all candidates were invited. As it's currently written, that's for the tech. Okay, so let's have a vote on that all in favor. Okay. So that's unanimous that it is not a violation. Now the other part of the recommendation of whether or not a recusal recommendation. Okay, so this is where I think we could make a statement that even though this is not a violation of the ethics ordinance, if she chooses to do this, she would, she should make clear that she's not moderating in an official capacity for the city. Make clear that all candidates were invited. Make sure that all candidates are given equal opportunity to speak and that she may not have control over any perception of attendees or viewers of the forum, whether or not one or more candidates was favored based upon her questioning or her response or assessment of the responses. I move that we make that recommendation as you just outlined. Okay. She would or would not still wear that moderator label? Would not according to what you? Well, I mean, if she chooses to do that, we can make a recommendation to her, this is a bad idea, but I don't think that's the, I don't think that's where we're going with this. She has to make a decision on her own on that. She asked us, is this a, is moderating this a violation of ethics ordinance and we just know that it's not, I think we're all in agreement that it may not be the best idea and that she could potentially violate the ethics ordinance by carrying out the duty of moderating it. I'm good with that, that language. Okay. I'll probably give a motion. I move that we make that advisory as listed. Okay, so the motion that I'm hearing, it would be helpful, is to advise Council Member Byrd that if she does choose to moderate the event, to make clear that she's not there in her official capacity, to make sure that all candidates are invited and are allowed to participate equally, and that she may not have control over the perception of how she moderates the event. So yes, I wrote for that last one, could be perceived by the attendees or the viewers in how she questions the candidates may violate the ethics ordinance and it would be specifically number two, bringing special consideration that she's moderating. Yeah, I would say that the attendees, viewers, and participants. Did you have it written down? Yeah, I have it written down. It would be helpful if she could read it back to us. Okay. Or, because there's a motion, but I don't think it's been seconded yet. So the motion that I'm hearing is, if she does choose to moderate, she should make clear that she's not representing the city in her official capacity, all candidates should be invited, all candidates be given an equal opportunity to speak, and she could be perceived by attendees, viewers, and participants in how she questions the candidates, which may violate the ethics ordinance, and I put number two, the improper influence E2. Yes. So that was the motion. Okay. That's the motion that you made. I made that motion. Did you want to second? Well, you're second, so I'm second. I'm third. I like that. I made the motion, and then you would second it, David. Well, I would move then. Yeah. Patricia made the motion. You have to second the motion. Okay. Patricia made the motion, as I read, into the record. Well, I second, yes. Okay. We have a second. Let's see. All in favor? Aye. Aye. Okay, so do we -- do I draft that, or how does that work? We do it, and I'll send you a copy, and then you can provide us any changes you have, and you'll sign it as the presiding officer, and then we will provide it to term. Perfect. Okay. That is the only -- I believe we're done with all items on our agenda tonight. It is 557, and we are adjourned.