WEBVTT

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 Alright, welcome to this special call advisory panel meeting of the City of Denton's Board

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 of Ethics.

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 It's 5.30 p.m. on Thursday, February 8th, 2024.

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 I'm Madison Rorschach, Denton City Auditor, and the staff is on to the Board of Ethics.

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 I'm going to hand it over to the three-member panel to select the presiding officer.

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 I know one of you would make a motion to appoint somebody to be your--

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 I move that Dustin you be our presiding officer.

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 Second.

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 Do we have to vote?

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 Yeah.

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 All in favor?

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 All in favor.

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 I don't know if I'm supposed to vote.

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 Unanimous.

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 You can or you cannot.

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 Okay.

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 So I think that we don't have--do we have to call the meeting to order now?

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 No, I didn't.

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 Okay.

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 So we have one item for consideration tonight, EOE 24-010, request for advisory opinion number

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 24-001, received February 1st, 2024 from Council Member Byrd concerning potential and proper

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 use of influence, applicability, and recusal recommendations.

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 And then the agenda information sheet, did you guys have time to look at it?

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 Okay.

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 Well, we can start with that and the request, and in general, I guess there were a couple

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 of things that I wanted to point out on this in the initial request.

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 This is a public service group that Council Member Byrd is a member of, and they're planning

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 a virtual meet, the candidate event in a few weeks, and it says, "Since I'm in city government,

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 they asked if I could moderate the event, which will include city school board candidates."

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 From that, I mean, I think it implies that Council Member Byrd would be participating

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 as a representative of the city, since that's in the request.

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 It does state in the last email in the agenda packet that Council Member Byrd is not on

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 the board for that group and is not receiving any gifts or payments at any time.

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 So just to point those things out while we consider this, and I think Madison had some

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 discussion back and forth with Member Byrd on the possible sections of ethics ordinance

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 that would apply under conflict of interest, yes, and improper influence.

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 I went through those and looked at them, and as far as the sections of our ethics ordinance

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 are concerned, the improper influence, I think, is the only section that applies, except for

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 the abuse of resources, that since this is an online forum, I don't think that use of

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 city facilities, personnel, equipment, software, supplies, or staff time for this purpose would

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 be allowed under the ethics ordinance.

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 I don't think that was really the request from Council Member Byrd, but I wanted to

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 point that out.

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 The section of improper influence, there are five paragraphs under that section.

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 The last two, I don't think, apply at all.

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 Paragraph four is not applicable, and paragraph five is not applicable, because this is not

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 for state or local government agents.

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 And she herself is not running for office at this time, right?

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 Correct.

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 That's correct.

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 So the first three items under improper influence could potentially apply.

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 It wasn't clear to me if all candidates running for those offices that she mentioned in her

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 email would be invited to this forum.

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 If it's only for certain candidates that are invited, I think that is questionable to me.

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 And I believe if she is endorsing any of those candidates, since she is appearing as a city

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 council member, then I don't think that that would be allowed.

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 That's not laid out specifically in our ethics ordinance.

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 I tried to do a little digging on that and see if that appeared in the model code.

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 I didn't see anything clear there.

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 The only thing I found was in the ethics ordinance for Sunnyvale, Texas, they have something

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 specific about political support at public forums, and it discusses something very similar

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 to this situation.

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 It says council members may support board and commission members who are running for

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 office, but not in an official forum in their capacity as a council member.

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 So that's something as a reference.

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 Their ethics ordinance does specifically would not allow for endorsement.

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 The request from Councilmember Byrd says nothing about endorsement, it just mentions moderation

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 of the event.

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 And as moderator, it would imply it's neutral.

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 She's being neutral, she's moderating, but I guess at that event, if she then changes

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 from moderating to actually becoming political, then somebody could complain about that.

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 But on the face of it, I don't see that there would be any conflict of interest if she stays

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 just as a neutral moderator.

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 Right.

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 Yeah, that was pretty much the conclusion I came to.

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 So the only things that were questionable to me were whether or not all candidates for

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 those in those races were invited to the event.

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 And do we know that?

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 We don't know that.

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 And I don't think, I mean, Councilmember Byrd is not here, and I don't think that we could

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 ask if she were, right?

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 Yeah, per the rules of procedure, we're not allowed to hear comments from the public,

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 though we have suspended those in the past to hear the requesting city official before.

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 Okay.

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 But she's not here.

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 Right.

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 It's my understanding that Vicki would be interviewing, as moderator, would be engaging

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 directly with the candidates for her existing seat.

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 And as a district representative, this gets a little bit into the general appearance of

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 impropriety.

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 And I know this is not part of our specific code, but I'm a little bit concerned that

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 this is a risk that Vicki would necessarily not need to take to get the job done.

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 In Rotary, her organization, there are a number of other individuals that I'm told could take

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 that spot.

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 And I commend Vicki for filing this, and I absolutely consider her an example of transparency

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 in this matter.

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 But I'm very concerned if a debate went well and nothing happened, like you say, but political

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 debates and political events in Denton have a history of kind of turning a curve.

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 And I would hate very much to have Vicki in a situation where she would have to essentially

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 ride her on two candidates.

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 And so I'm very concerned about how this could end up.

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 So as a disclaimer, I know Vicki fairly well, she's my representative, she's actually a

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 neighbor, and I'd like very much to approach this from the standpoint, from the appearance

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 of impropriety.

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 And I know the appearance of impropriety is not a specific part of our code as it's written,

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 but it's a significant feature of most every other ethics code in Texas.

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 And so you avoid unnecessary risk when you can.

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 And I think this is an opportunity to save Vicki some possible trouble.

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 And again, even her filing this request even suggests to me that she's a little bit aware

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 of the position that she's putting herself in trying to represent Rotary.

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 So I don't know if we're at the point to actually state our position, but I'm very concerned

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 that Vicki, should she choose to moderate that.

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 And there's all opportunities for her to supply information to the questioner.

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 She could be in the background, she could do almost anything that she would need to

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 do to support either one or both of these candidates.

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 So, but as the actual moderator, to me, that becomes the issue.

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 Yeah.

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 Okay.

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 I guess for the specific request, I think it sounds like we're kind of all on the same

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 page, that what she has been asked to do in itself is not a violation or just moderating

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 the forum is not a violation of our ethics ordinance, because she is not being paid.

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 And as long as all candidates that are, the invitation has been extended to all the candidates

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 in those races, to me, that would not be granting special privilege or benefit to any individuals

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 there as long as all the candidates were allowed to participate.

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 Going through all of that stuff, it seems like there is a potential for, in carrying

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 out that duty as a moderator, it is possible that if there is any sort of endorsement there

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 that is given at that forum, then that would potentially be a violation of the ethics ordinance.

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 At least, as it's written in, not specifically in our code, for some of the example codes

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 that we use, it would be a violation.

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 When I've attended some of these kind of things, it seems like there's questions that have

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 already been thought of, and each candidate has asked the same question and given the

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 opportunity to answer the questions.

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 So usually, the moderator doesn't really get into anything political with that.

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 So it seems like it could be pretty safe, but that's for her to decide, and if it does

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 go south, like you were suggesting it could possibly, then that would be another thing.

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 But we don't know the future.

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 We have a crystal ball to see what's going to happen.

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 So it's kind of up to her if she wants to take that risk or not.

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 I would say the only thing that, just on what we know today, the only thing that would make

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 it a clear violation of our ordinance, to me, would be if, at this forum, the candidates

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 that are running are not all allowed or were not all invited to participate.

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 That would be the only thing that would be black and white to me based on this, because

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 from her request for this advisory opinion, she stated that she would ask to do that as

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 a member of city government.

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 So we would include that in our advisory, that as long as all candidates are invited,

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 we see no conflict.

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 That would not be a conflict or a violation of our ethics ordinance.

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 I think that how that is carried out, how she carried out the duty as moderator, there

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 is a potential for something else or one of these things to be violated.

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 So I don't want to make that choice for her or say that you shouldn't do this because

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 just doing it is not a violation as long as everyone that is running is invited to speak.

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 I agree with that.

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 If it's helpful, we're posted basically to give her two things, would it be a violation

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 of the ordinance, but also should you have a recommendation on if you should do it or

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 not.

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 You have to at least tell her if it's a violation of the ordinance, and then if you would like

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 to say, but we recommend you don't do this or we recommend you do, but you have to do

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 it this way, you can do that as part of the advisory opinion.

00:13:31.040 --> 00:13:32.040
 Okay.

00:13:32.040 --> 00:13:33.040
 Yeah.

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 All right.

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 Can I ask a question?

00:13:35.040 --> 00:13:36.040
 Sure.

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 When I read the materials, I didn't think that they were inviting her to be moderator

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 in her official capacity.

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 Am I wrong?

00:13:41.040 --> 00:13:42.040
 It's not clear to me necessarily.

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 It's not an official capacity.

00:13:49.040 --> 00:13:57.600
 Well, it says moderating in virtual.

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 That doesn't say as a council person, she is moderating as a member of the group.

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 It's in the initial email, the third sentence here says, "Since I'm in city government,

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 they asked if I could moderate the event, which really includes any school board candidates."

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 So it doesn't say they invited me in just the instance.

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 Yeah.

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 Yeah.

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 Yeah.

00:14:20.440 --> 00:14:21.440
 Yeah.

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 I don't know the answer to your question, but I read that as ...

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 Well, I think if you're going to make any recommendations, if she chooses to do it,

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 she would say that she has to make it clear that she's not appearing in her official capacity

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 as a council member for the City of Denton, and then you can list some reasons.

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 Just to give you some ideas, I looked at some of the ethics opinions on the Texas Ethics

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 Commission, and so some of the things don't appear in your official capacity, make it

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 clear it's not city-sponsored, all candidates provided the same opportunity to appear and

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 speak.

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 She can't show deference in her questioning, allow one to speak more than the other, and

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 then what you brought up are certain candidates excluded, and then however she moderates,

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 it could be perceived as an endorsement, and she could draw a complaint that way.

00:15:29.000 --> 00:15:30.000
 Yeah.

00:15:30.000 --> 00:15:37.000
 So those would be the ... In your recommendations, you could either make whatever recommendation

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 you want, or you could list some of these concerns or factors for her to consider.

00:15:44.080 --> 00:15:45.080
 Okay.

00:15:45.080 --> 00:15:47.960
 That makes sense.

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 So I don't know if we're ... It sounds like we're, I think, all on the same page.

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 The participation is not a violation of her ethics ordinance, and if we can make some

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 recommendations to her, outlining those things that if she is not in her official capacity

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 as a representative of the city council, and that all ...

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 She needs to make it clear.

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 She needs to make that clear at the forum, then that's acceptable, but there is potential

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 for a violation, depending on how that is carried out, in any ...

00:16:26.080 --> 00:16:31.200
 Yeah, we wouldn't necessarily recommend that she do it because of the perception that she

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 might be favoring one candidate over another.

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 Yeah.

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 And I don't think we can answer that today.

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 So you can't say that ... I don't think we could possibly answer that today.

00:16:45.640 --> 00:16:46.640
 We don't know.

00:16:46.640 --> 00:16:50.760
 Whether or not she would violate that ordinance by doing that.

00:16:50.760 --> 00:16:57.880
 Her moderating the panel is not a violation of the ordinance, but in carrying out that

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 duty, she could potentially violate our ethics ordinance.

00:17:00.880 --> 00:17:01.880
 Yeah.

00:17:01.880 --> 00:17:02.880
 That's like I said.

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 As our code is currently written, minus that appearance of impropriety, I agree, but I

00:17:08.440 --> 00:17:12.760
 just believe on Vicki's behalf, this is an unnecessary risk.

00:17:12.760 --> 00:17:13.760
 Right.

00:17:13.760 --> 00:17:14.760
 That's okay.

00:17:14.760 --> 00:17:17.760
 That's what we're trying to say.

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 Yeah, I'll just add, as long as all candidates that are running are, were invited to the

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 forum.

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 If they're not, then that would be a violation.

00:17:30.760 --> 00:17:37.760
 Can we add on that she ... Yeah, in your recommendation that she should

00:17:37.760 --> 00:17:40.760
 make it clear she's not representing the city.

00:17:40.760 --> 00:17:41.760
 Yeah.

00:17:41.760 --> 00:17:47.760
 As a city council member, all candidates should be invited.

00:17:47.760 --> 00:17:48.760
 Yeah.

00:17:48.760 --> 00:17:49.760
 Say that.

00:17:49.760 --> 00:17:50.760
 Okay.

00:17:50.760 --> 00:17:51.760
 What she said.

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 And then all candidates be allowed an equal opportunity to speak.

00:17:56.760 --> 00:18:00.760
 Oh, that's good to know.

00:18:00.760 --> 00:18:15.760
 And then if, you know, it could be perceived that she's endorsing one or another in the

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 manner in which she questions.

00:18:18.760 --> 00:18:19.760
 Yes.

00:18:19.760 --> 00:18:20.760
 Do you want to throw that in?

00:18:20.760 --> 00:18:21.760
 It could be perceived.

00:18:21.760 --> 00:18:22.760
 It could be perceived.

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 And they possibly, and then may possibly violate the evidence.

00:18:30.760 --> 00:18:31.760
 Yeah.

00:18:31.760 --> 00:18:39.760
 There's plenty of other people in the organization that probably moderate it, so she doesn't

00:18:39.760 --> 00:18:42.760
 really need to take that risk.

00:18:42.760 --> 00:18:49.760
 It could be perceived in how she questions the candidates, because that's kind of what

00:18:49.760 --> 00:18:54.760
 they said in these ethics opinions, giving somebody more time than another.

00:18:54.760 --> 00:18:55.760
 Right.

00:18:55.760 --> 00:18:56.760
 In your facial expressions.

00:18:56.760 --> 00:18:57.760
 Right.

00:18:57.760 --> 00:18:58.760
 And body language.

00:18:58.760 --> 00:18:59.760
 I like you.

00:18:59.760 --> 00:19:00.760
 I hate you.

00:19:00.760 --> 00:19:01.760
 Okay.

00:19:01.760 --> 00:19:02.760
 Do we need to have a vote?

00:19:02.760 --> 00:19:17.760
 I believe we need to have a vote on if it's a violation of the ordinance, and then if

00:19:17.760 --> 00:19:25.760
 you would like to, according to what conditions that you've discussed, and then if you would

00:19:25.760 --> 00:19:31.760
 like to add a recommendation about some of the perceived potential and things that could

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 occur if she did it.

00:19:32.760 --> 00:19:33.760
 Okay.

00:19:33.760 --> 00:19:34.760
 I would think we need two separate motions.

00:19:34.760 --> 00:19:35.760
 Two votes.

00:19:35.760 --> 00:19:36.760
 Yeah.

00:19:36.760 --> 00:19:43.760
 Is there a motion for whether or not this is a violation of our evidence ordinance?

00:19:43.760 --> 00:19:48.760
 I believe that it is not a violation of the ordinance.

00:19:48.760 --> 00:19:51.760
 Any second.

00:19:51.760 --> 00:20:03.760
 I will second that with the only caveat that, again, I'm very concerned about how this could

00:20:03.760 --> 00:20:08.760
 even turn and become one of Vicki's problems.

00:20:08.760 --> 00:20:09.760
 Sure.

00:20:09.760 --> 00:20:14.760
 I think for today, though, we can make that decision for her.

00:20:14.760 --> 00:20:17.760
 We can tell her whether or not this is a violation.

00:20:17.760 --> 00:20:25.760
 Moderating is a violation of the ethics ordinance or not, and my opinion is that it is not as

00:20:25.760 --> 00:20:27.760
 long as all candidates were invited to speak.

00:20:27.760 --> 00:20:28.760
 Yeah.

00:20:28.760 --> 00:20:31.760
 And then we can make a separate motion.

00:20:31.760 --> 00:20:36.760
 We'll say your concerns out of a second vote.

00:20:36.760 --> 00:20:44.760
 Having been a city candidate more than once, debates often can turn one way or the other,

00:20:44.760 --> 00:20:50.760
 and moderators are often put in the role of having to defend one side or the other.

00:20:50.760 --> 00:20:56.760
 And I know Vicki, bless her heart, I just would hate to see Vicki in that position.

00:20:56.760 --> 00:21:03.760
 So, yes, the code would allow her to do that, but I'm just going to hold that I just don't

00:21:03.760 --> 00:21:05.760
 think this is a good idea.

00:21:05.760 --> 00:21:09.760
 So is that a second for the motion?

00:21:09.760 --> 00:21:13.760
 So it doesn't violate as long as all candidates are invited to speak.

00:21:13.760 --> 00:21:16.760
 That's kind of the motion that I'm hearing.

00:21:16.760 --> 00:21:17.760
 Yes.

00:21:17.760 --> 00:21:19.760
 And then you can vote on it.

00:21:19.760 --> 00:21:24.760
 And then you can make a separate motion for what we include in the advisory opinion or

00:21:24.760 --> 00:21:26.760
 recommendations on whether or not.

00:21:26.760 --> 00:21:28.760
 And how she conducts the moderation.

00:21:28.760 --> 00:21:29.760
 How it is conducted.

00:21:29.760 --> 00:21:30.760
 Yeah.

00:21:36.760 --> 00:21:45.760
 I'm very uncomfortable with the moderator label in this particular case because I know

00:21:45.760 --> 00:21:48.760
 how political debates can occasionally go.

00:21:48.760 --> 00:21:49.760
 Sure.

00:21:49.760 --> 00:21:54.760
 And I just think that Ms. Byrd could do well in an advisory capacity.

00:21:54.760 --> 00:22:01.760
 I have no problem with her involving herself in any debate, but this moderator label bothers

00:22:01.760 --> 00:22:02.760
 me greatly.

00:22:02.760 --> 00:22:05.760
 Yeah, I mean, I'm not arguing that at all.

00:22:05.760 --> 00:22:10.760
 I mean, I think that makes sense to think through those things and for her to make a

00:22:10.760 --> 00:22:11.760
 decision on that.

00:22:11.760 --> 00:22:13.760
 But I mean, we can only go off of what is on.

00:22:13.760 --> 00:22:15.760
 They don't know I'm okay with that.

00:22:15.760 --> 00:22:16.760
 Okay.

00:22:16.760 --> 00:22:22.760
 So that's a second for the motion to recommend that this is not a violation.

00:22:22.760 --> 00:22:25.760
 Her moderating is not a violation of the ethics ordinance.

00:22:25.760 --> 00:22:28.760
 As long as all candidates were invited.

00:22:28.760 --> 00:22:30.760
 As it's currently written, that's for the tech.

00:22:30.760 --> 00:22:33.760
 Okay, so let's have a vote on that all in favor.

00:22:33.760 --> 00:22:34.760
 Okay.

00:22:34.760 --> 00:22:39.760
 So that's unanimous that it is not a violation.

00:22:39.760 --> 00:22:48.760
 Now the other part of the recommendation of whether or not a recusal recommendation.

00:22:48.760 --> 00:22:56.760
 Okay, so this is where I think we could make a statement that even though this is not a

00:22:56.760 --> 00:23:05.760
 violation of the ethics ordinance, if she chooses to do this, she would, she should

00:23:05.760 --> 00:23:10.760
 make clear that she's not moderating in an official capacity for the city.

00:23:10.760 --> 00:23:13.760
 Make clear that all candidates were invited.

00:23:13.760 --> 00:23:22.760
 Make sure that all candidates are given equal opportunity to speak and that she may not

00:23:22.760 --> 00:23:29.760
 have control over any perception of attendees or viewers of the forum, whether or not one

00:23:29.760 --> 00:23:34.760
 or more candidates was favored based upon her questioning or her response or assessment

00:23:34.760 --> 00:23:36.760
 of the responses.

00:23:36.760 --> 00:23:40.760
 I move that we make that recommendation as you just outlined.

00:23:40.760 --> 00:23:43.760
 Okay.

00:23:43.760 --> 00:23:47.760
 She would or would not still wear that moderator label?

00:23:47.760 --> 00:23:50.760
 Would not according to what you?

00:23:50.760 --> 00:23:56.760
 Well, I mean, if she chooses to do that, we can make a recommendation to her, this is

00:23:56.760 --> 00:24:02.760
 a bad idea, but I don't think that's the, I don't think that's where we're going with

00:24:02.760 --> 00:24:03.760
 this.

00:24:03.760 --> 00:24:06.760
 She has to make a decision on her own on that.

00:24:06.760 --> 00:24:12.760
 She asked us, is this a, is moderating this a violation of ethics ordinance and we just

00:24:12.760 --> 00:24:20.760
 know that it's not, I think we're all in agreement that it may not be the best idea and that

00:24:20.760 --> 00:24:25.760
 she could potentially violate the ethics ordinance by carrying out the duty of moderating it.

00:24:25.760 --> 00:24:28.760
 I'm good with that, that language.

00:24:28.760 --> 00:24:31.760
 Okay.

00:24:31.760 --> 00:24:33.760
 I'll probably give a motion.

00:24:33.760 --> 00:24:40.760
 I move that we make that advisory as listed.

00:24:40.760 --> 00:24:49.760
 Okay, so the motion that I'm hearing, it would be helpful, is to advise Council Member Byrd

00:24:49.760 --> 00:24:55.760
 that if she does choose to moderate the event, to make clear that she's not there in her

00:24:55.760 --> 00:25:00.760
 official capacity, to make sure that all candidates are invited and are allowed to participate

00:25:00.760 --> 00:25:12.760
 equally, and that she may not have control over the perception of how she moderates the

00:25:12.760 --> 00:25:13.760
 event.

00:25:13.760 --> 00:25:21.760
 So yes, I wrote for that last one, could be perceived by the attendees or the viewers

00:25:21.760 --> 00:25:28.760
 in how she questions the candidates may violate the ethics ordinance and it would be specifically

00:25:28.760 --> 00:25:32.760
 number two, bringing special consideration that she's moderating.

00:25:32.760 --> 00:25:36.760
 Yeah, I would say that the attendees, viewers, and participants.

00:25:36.760 --> 00:25:47.760
 Did you have it written down?

00:25:47.760 --> 00:25:49.760
 Yeah, I have it written down.

00:25:49.760 --> 00:25:52.760
 It would be helpful if she could read it back to us.

00:25:52.760 --> 00:25:53.760
 Okay.

00:25:53.760 --> 00:25:56.760
 Or, because there's a motion, but I don't think it's been seconded yet.

00:25:56.760 --> 00:26:05.760
 So the motion that I'm hearing is, if she does choose to moderate, she should make clear

00:26:05.760 --> 00:26:11.760
 that she's not representing the city in her official capacity, all candidates should be

00:26:11.760 --> 00:26:19.760
 invited, all candidates be given an equal opportunity to speak, and she could be perceived

00:26:19.760 --> 00:26:25.760
 by attendees, viewers, and participants in how she questions the candidates, which may

00:26:25.760 --> 00:26:32.760
 violate the ethics ordinance, and I put number two, the improper influence E2.

00:26:32.760 --> 00:26:34.760
 Yes.

00:26:34.760 --> 00:26:36.760
 So that was the motion.

00:26:36.760 --> 00:26:37.760
 Okay.

00:26:37.760 --> 00:26:39.760
 That's the motion that you made.

00:26:39.760 --> 00:26:41.760
 I made that motion.

00:26:41.760 --> 00:26:42.760
 Did you want to second?

00:26:42.760 --> 00:26:46.760
 Well, you're second, so I'm second.

00:26:46.760 --> 00:26:48.760
 I'm third.

00:26:48.760 --> 00:26:49.760
 I like that.

00:26:49.760 --> 00:26:55.760
 I made the motion, and then you would second it, David.

00:26:55.760 --> 00:26:58.760
 Well, I would move then.

00:26:58.760 --> 00:27:02.760
 Yeah.

00:27:02.760 --> 00:27:03.760
 Patricia made the motion.

00:27:03.760 --> 00:27:05.760
 You have to second the motion.

00:27:05.760 --> 00:27:06.760
 Okay.

00:27:06.760 --> 00:27:09.760
 Patricia made the motion, as I read, into the record.

00:27:09.760 --> 00:27:10.760
 Well, I second, yes.

00:27:10.760 --> 00:27:11.760
 Okay.

00:27:11.760 --> 00:27:12.760
 We have a second.

00:27:12.760 --> 00:27:13.760
 Let's see.

00:27:13.760 --> 00:27:14.760
 All in favor?

00:27:14.760 --> 00:27:15.760
 Aye.

00:27:15.760 --> 00:27:16.760
 Aye.

00:27:16.760 --> 00:27:23.760
 Okay, so do we -- do I draft that, or how does that work?

00:27:23.760 --> 00:27:28.760
 We do it, and I'll send you a copy, and then you can provide us any changes you have, and

00:27:28.760 --> 00:27:32.760
 you'll sign it as the presiding officer, and then we will provide it to term.

00:27:32.760 --> 00:27:33.760
 Perfect.

00:27:33.760 --> 00:27:34.760
 Okay.

00:27:34.760 --> 00:27:39.760
 That is the only -- I believe we're done with all items on our agenda tonight.

00:27:39.760 --> 00:27:52.200
 It is 557, and we are adjourned.