Oct 07, 2024 Board of Ethics on 2024-10-07 6:00 PM

Good evening. It is Monday October 7th and we are meeting for the Board of Ethics in our regular meeting. It is now 6 o' 1 p.m. and we do have someone who wants to make public comments. His name is Charles Lee. So if you will come to the podium and state your name, your three minutes will begin. Hello, good evening. My name is all Charles Lee and I want to speak on, I don't know, what is it? B0E24-032. I'm not going to take my whole three minutes, but I just want to say that I truly appalled that a council member who benefit from a solar program and receive money from a solar program, and I'm just a renter and I can barely afford my rent, and it's the simple fact that I can't afford to have solar panels. I'm a renter. I don't have the option to have solar panels, but then a little portion of my utility bill is going to the profit of a council member without solar panels who can't afford it. I found it absolutely appalling and I find it absolutely disgusting, and thank you very much for your time and you have a nice day. Thank you, Mr. Lee. Okay, we will move on to the items for consideration. Item A, B0E24-031, consider approval of minutes for August 5th and September 11th. Do I hear approved? So Zeltner has new to approve. I'll second. Andrea seconded. All in favor of approving the minutes? Okay. Item number B, B0E24-35, receive a report, hold a discussion, and take necessary action regarding the ethics complaint process detailed in the Code of Ordinances Chapter 2, Article 11, Ethics, Section 2-281, Meetings, and Section 2-282, Disposition and the Board of Ethics Rules and Procedure. We've had discussions about the written proof several times. I tried to create some options based on those discussions, what we could do, and some of the discussions council had, but that was not intended to limit you in any way. I can hold it to the documentation you would like, or as far as the ordinance or the rules and procedure, I'd really like to look at it in particular, but I don't really have a... So we were wanting to talk about kind of brainstorming so that if we take this back to council, we can tell them why we thought this was important. I can also pull up a word document, if we want to just take notes together. I would like that. So I want people to feel free to suggest whatever they want to. So whoever has suggestions, who wants to begin. Well, we've talked about this before. My feelings have been pretty well known. This burden of proof is not found elsewhere, and I can find it anywhere in the state of Texas. It marginalizes people who have the courage to speak up, but then may not have the ability to carry it all the way through. So I don't see any way to modify this. I just would suggest this needs to be disposed of as quickly as possible. So one thing I've heard is that we haven't found it in any other ethics ordinance, and then the other is it marginalizes people. I think it puts the focus on the complaint, and it has a chilling effect. Completely. Yeah, we've had no complaints, and it's almost built a wall around the entire complaint process. Don't bother us. So, okay, we're just kind of brainstorming here. So Andrea, what would you like to suggest? I think I'm a little bit speechless. Okay. After the, I mean, I voice my opinions pretty much. Okay, you don't have any reasons why we should not have this? Do you have reasons why we should? Why we shouldn't have the burden of proof on the complaint? No, I don't really. I agree. It's like, it puts the burden on the person making the complaint, and I don't think that that is helping the process. So yes, I think that they're. Okay, so you're agreeing. Yes, I do agree, and that's. Okay. Dustin, can you think of? I mean, I agree with everyone here in attendance today. I think some of the concerns of the council members during their discussion and reviewing this were misplaced. They seem to think that there would be more frivolous complaints, and this would be, and that we were creating a scenario where the ethics ordinance could be weaponized. I think there was something that was said. Part of the work that we have done to address frivolous complaints in the past, and as part of this proposed revision, would address that. We have a mechanism there for preventing that, or at least for discouraging that, or limiting multiple complaints after a complaint is deemed frivolous. So we tried to address that as much as we can. I'll stop there. I think that it was. The discussion in the meeting, in the work session by the council members was, the tone of it was protecting themselves from an ethics ordinance, an ethics ordinance that is functional. What we have today is in some ways not functional, especially for average citizens who are not embedded in local politics. I think what we've tried to do is clean up specifically the burden of proof section that makes it very difficult for someone who is a citizen that believes there was a violation to make a complaint. David? I'm not sure, I'm having a hard time reading what's up there, but we've also made the point that a citizen complainant would lack the legal resources to get testimony and compile documents, and so they're off on an island trying to prosecute something without the legal resources necessary. Maybe up there somewhere, but I'm trying to... The citizens wouldn't have access to... Thank you, thank you. And that is something, you know, like when I'm talking, when I'm thinking about the process, right, it's like we're supposed to be an independent panel to assess, but at the same time we do not have... Sometimes, like I've been in previous, in previous complaints where I'm just like, well I would like to see there to be an actual kind of like an investigation that is independent of the person making the complaint or the person that the complaint is made against, right, where there would be an entity that actually looks at things like what was actually discussed and what was the agenda item that was responded to, or... I think the code has been weaponized from the beginning, but it's mostly been weaponized council member against council member, and I think this is taking out a valuable voice that might actually be more objective, but, you know, putting the burden on them just shuts it out. Most of our complaints have been council member against council member, and I'm really tired of that. And that, and I really do think that that is also, there's a part that there is this thinking that recusal is something bad, right? I think making, like making recusal from a very simple debate or a very simple, you know, deliberation, that should be, especially when people are so embedded in the community, that should be the norm, rather than an exception. It's like taking the high road. I should have said something about that part of the discussion that they had. There, I think there was a misunderstanding of what was required to ask for an advisory opinion, because from the discussion it sounded like they were concerned that they would have to constantly, they, someone used the term go before the board to get an advisory opinion for recusal or something like that. It's in the email. You send an email to Madison, and then Madison will ask us. So we would convene a panel like we did earlier, review it, compare it to what's written in the language of the, of the ordinance, and then send a memo back. Here's our advisory. Right. They don't have to, they don't have to come to a meeting. They send an email and say can you review this? And then if at that point we say no, this doesn't require a recusal, and then someone makes a complaint to the board that they did not recuse themselves, then they can say I have this advisory opinion of the ethics board that says I did not need to recuse myself. And we have circumstances, we have circumstances like that, right? Exactly. We have, we have, we've given advisory opinions about exactly is this a monetary, a monetary benefit that I have to be concerned about or not? And it was a, was a very quick and easy. That may be outside of the burden section. I want to make a comment, and Madison you're doing a great job. So you don't have to be typing. Something I realized just this last week is that the charter requires four things for our code of ethics, and the only thing that's solidly clearly in it is recusal process. The other three things that the charter says should be there are either there or they're there in a very weak form. For example, you know my concerns with conflict of interest. It doesn't say anything about appearance of conflict of interest, and that's actually what's in the charter. So I, it's, it was astonishing when I realized that because I was thinking well that's why everything seems to be about recusal. It's the only thing that's clearly defined, and we have a city charter that 80% of the voters approve, and three of the four things are just not in there, and so that it just makes me continue my drumbeat that we, this code is broken, and we need something better. Good job. Any other comments? Okay. What do you want to do with this? Because this is a lot of stuff in it, do we need to, obviously we need to go through and clean it up. Do you want, how do you want to do that? I don't want to hash it out tonight. I mean no offense, but what do you? I do not want to clean it up. Would you be comfortable sending me your document, and then I could come up with kind of a pared down version that covers, are you guys okay with that, and then we present it at the next meeting. Can we do a side-by-side? Yeah. Original and then you clean up? Yeah, I'm, yeah, for sure. Transparency? Yes. Yeah. Okay. So will the next step be work sessions at some point in the future again, or is that still? You know, I'm, we'll talk about it in a minute, because kind of a separate topic. Along the lines of what I said. Okay. So, but I'm happy to clean it up and see if you guys are good with that, and it, you'll have a chance to help me help with the final thing. Talk about it in a minute? What do you mean in a minute? During the future? During the future meeting? Yeah, at the next meeting. Okay. Okay. Item C, BOE 24-036. Receive a report, hold a discussion, and take necessary action regarding the ethics complaint process detailed in Code of Ordinances Chapter 2, Article 11, Ethics, C 2-278, Advisory Opinions, and the Board of Ethics Rules of Procedure. I'm the one who put this in based on things that have been happening in the last week or two. I feel like we need to clear up, maybe have a form for people to fill out when they want to make, ask for an advisory opinion, and the biggest thing I want to know is, is this for you? Are you seeking this opinion for someone else? So, or maybe we should say that the advisory opinion should be sought just for that person? So. Okay, can I, are you concerned that council members or people are seeking opinions about somebody else's behavior? Or potential future? Or potential, potential future behavior? At least I'd like to be clear, are you asking for yourself or are you asking for someone else? Because I will say I was on that panel and we were pretty confused. We had more questions than answers. So, what do you guys think about that? Well, I think that would explain some of what was reported on how council members are concerned about weaponizing the Ethics Code. Right, yeah. What do you guys think? I think this is, I never even considered, this is why I'm not a politician. I never even considered using this process in that way. So, I don't know that, I, I'd like to think that wouldn't happen, but obviously I'm maybe too optimistic about how this all works. I, I don't, I think it's, I don't see why there would be a need for us to allow anyone to request an advisory opinion that does not apply to their potential conflict or a requirement for recusal. I, there, there, I can think of one way that someone would want to do that, and that's what you're describing. Because if you're, if you're concerned about somebody else's behavior, then you just make a complaint. Right. Or what if you just contacted that person and say, here's my concern. You know, you mean internal, yeah, like communication and professional opinion and having a conversation about how something may potentially be perceived in the public? Or maybe we should change our procedures that if we can't understand, because I know when I first read that complaint, I really didn't understand what was, what was being asked and I didn't know. There's a lot of things I didn't know. I kind of thought them through and kind of answered them for myself incorrectly, I might add. So it might be that we would have the right to review it and say, this is incomplete, we don't know what you're asking, that maybe that's just what needs to go into our procedures. I, yeah, because I, we rushed around and I know I rescheduled my schedule twice to try to make sure I could be here and I felt pretty used, you know, that it wasn't, you know, we have a weak code, we don't like it, I don't like it. I'm trying to speak for you guys. And, and it, I hate for it to be used as a battering ram and I believe that's what happened. And that's not what I'm here for. I'm not here to beat people up. I'm here to do what's right for the city or to, you know, to advise on that. We've just been through this. Now C2, the request for an advisory opinion, fairly and accurately disclosed the relevant facts. Now we have just lived through the nightmare there where someone used that part of the code. Now they apologized in a public meeting. I'm not sure this board ever got an apology for the time we spent, you know, going over that request before. But I think we, I don't know how much clearer this code can be under C2. Request for advisory opinion, fairly and accurately disclosed. If you're shooting hypotheticals through here to see what's going to stick on the wall, that's not why we're here. Yeah, yeah. So I don't know how we can be much clearer than what we've got right there. Yeah, it is pretty clear. I just, I will say from the beginning I was like, what is this? You know. We all walked out of here that day. We were all hoodwinked, including legal. And that was embarrassing, frankly. Yeah. And again, I don't know if there has been any public apologies for what happened there. I mean, I've not heard from any individuals. Or I don't know if Madison has ever had a word of apology for the time we spent from the person that did this. But we've got it right there. So what, can I ask another clarifying question? Because we're talking about the, it was an act, a complaint? It was a request for an advisor. It was a request for an advisor opinion. The advisory opinion. Like last month. Right. Exactly, yes. So that was independent of, that was independent of? Well, it was kind of setting up for a complaint. Okay. I mean, that's what I think the goal probably was from the beginning. When was the advisory opinion issued? September 15th. Yeah, it was October 11th. That was when the meeting was. So it went out that day. Oh, yes. I believe the advisory opinion was issued to the city official that requested it on the 16th. Sorry, does that get published somewhere? Does that get published? I didn't know anything about this at the time. They get published, so they get published online to the city's Board of Ethics webpage. And then the rules of procedure, I present like a summary of any advisory opinions at the next regular meeting. So the next item is a management report that includes that we issued that. When I got that agenda, that's the first time I became aware of this. So I'm just trying to write down some dates to make sure I understand. Like what happened here. So does anybody have any recommendations? We've talked about a couple things. I think going forward I'm going to be, I'm going to be asking more questions anytime we get a request for an advisory opinion. Because if it's not clear to me, I don't think it'll be clear to anybody else. And I would like the right to say, no, we, until we get these questions answered, we can't move forward with this. I really think, I really think that as a, and I don't know, this is a, this is a question for you, Scott, because, because if we're asked to make an advisory opinion and fairly and accurately disclose the relevant facts. So if we're sitting in an, on an advisory board and we do not feel that these, that the, the, the facts are being disclosed accurately and that they're actually relevant, I mean, can we go back and ask for more? I, I guess we could simply say we don't have enough information so that we can't give you an opinion. And I mean, so Scott, is there something that you would like to add? I, I just, Andrea, to answer your question, I think that, that section C, if you read the whole paragraph, it, it shall be an affirmative defense to a complaint that the respondent relied upon an advisory opinion. So that doesn't really come up in the issuing of the advisory opinion, any of those. And of course you all can consider it and say, well, someone's not going to be able to rely on our opinion on this because there aren't accurate facts, but it doesn't mean you can't give an advisory opinion, because you're sort of assuming the hypothetical that you've been given. Could we go so that, in that case that means we have to, we have to be very accurate in our language of the advisory where we're saying, based on these facts, this would be the opinion, but we, as an advisory board, are concerned that there might not, that there might be not all facts presented. As a hypothetical? The way I read it, I, you wouldn't have to say that necessarily, just the point is that here's the hypothetical we've been presented with. That's why there's no evidentiary portion to the, to the advisory opinion process either, because it's, some official has asked, given, assuming these facts, what would the situation be? And I mean, and that is really what it is, right? Because if it's an advisory opinion, it hasn't happened yet, and therefore it is all hypothetical. Because none of it may happen. And so even the question of like, well, someone asking about facts that don't apply to them, that's, that's a point, is that they're asking a hypothetical to say, if it were, if I did this, what would be the effect? And the effect is, only if you all determined that there's not a violation, then that, that official has an affirmative defense. Otherwise, it's not, it's not a complaint, it's not a, it's not, I mean, you, I guess, I don't want to get out of my seat, because then, I know you'll just hang up one, but it's, and that C is really the, the meat of what the advisory opinion does for you, if you get one issued, is that you can rely on it as a defense and say, you told me I didn't have to recuse, so I didn't recuse, and that's where I mean. So let's get, but let's get very technical then, right? But if, if we're, if we're given a hypothetical that says it's, we're, we're basing all of this on the color red, but then in the actual behavior, it's color black, then, then the facts that we were presented with are no longer, are no longer valid, and that should invalidate the advisory opinion. No, it's just when that person, if they come and try to use an advisory opinion that describes different facts, as an affirmative defense, if, if I said, you know, yeah, if it's the color red, and then I go, and it's the color black, and I go, no, no, I didn't, I didn't break the rules, because y'all said, then y'all would say, no, we said red. Not black. Not black. Okay. But, so, yeah, it's. It just becomes a very. So we don't need to make any changes or recommend any changes? It's up to y'all. Well, you're saying changes to the code? No, I, I think, I think the complaint we received was misleading. I, I. So if we move forward, if we move forward to the next agenda item, can we discuss it in more detail? Let me work with it. How many advisory opinions are given in the state of Texas right now? I mean, I'm just, we're sitting here trying to repair something that may already have a solution in other cities. So have we looked at other advisory opinion chapters in other codes? I mean, I'm just, I don't have an immediate solution for what I'm hearing, other than I'm wondering what do they do in x-y or z cities to prevent this from happening. So, and so we'll always try to invent something that may have already been. I don't think. I believe, we haven't looked, I haven't done the research and presented it to you about benchmark city advisory opinion processes or the ethics complaint or that model ethics code, what it says. I believe that there are other cities that haven't, just based on how many other codes I've looked at to present research to you on other areas. We have not done that section specifically in the past. Well, I'm immediately suspicious and curious. For example, what does city of Austin do, you know, with first advisory opinions right out of the box? I mean, how do they prevent from happening what we went through just last month? So, you know, we're learning here, we just had a code for only six years now. So, I feel like we have information out there to help us with this advisory opinion issue that might be evident and visible. I mean, I've done benchmarking research and presented it to you all in the past, so if that's the direction you'd like, we can go that way. Is that what you guys would like? Benchmark information? We've lived the nightmare. We've lived the nightmare already. We saw what went wrong. And so, yes, I mean, I think just maybe some some advisory opinion processes from around the state might be a good way to start or look at this and just see what happens in what happens in Austin or Fort Worth or El Paso, for example. Good to make more work for you, but I think that would be very helpful. Six directions, we can have that. Okay. So, do we have to make a motion about that? No, I just want to make sure there's all the consensus. I think that would be helpful. I'd like to see how other cities handle this. Okay, so we're up to item D, BOE 24-033, management reports. September 24th, 2024 advisory opinion responses report. Take it away, Madison. Yes, so during September 2024, Mayor Hudsbeth requested an advisory opinion regarding deliberating rates related to the city's solar program. The board met on September 11th and issued that opinion, saying that they recommended a recusal under the improper influence section. That is the end of the advisory opinion process. And it was publicized in the website for the standard practice. And then I did forward it to all city council members as well because I thought there might be others that had solar counts. We kind of got into this in the last, so any, what comments do you guys want to make about that? I think finding out what other cities do with this would be helpful. Well, I mean, knowing what we got today, I think, I think that potentially that advisory opinion was based on incomplete information. Or, but we thought it was. Let's not re-litigate the, no, no, yes, I'm sorry. Okay, that's off topic. Yes, I'm also conflicted. I'm advising you on it. Thank you, thank you. Okay, so end of, end of item D, right? Everybody okay with that? Yes. Okay, item E, BOE 24-034. Receive a report, hold a discussion, and give staff direction regarding future meeting topics. I don't, I don't think we have anything on the schedule currently. So next time we would be looking at the brainstorming we did about burden and proof in my hopefully helpful summary, and then we would be looking maybe, would there be time for you to gather information about the advisory process in other cities? One else. We do have on the agenda for today the ordinance training. I forgot to keep that ready. I mean, I have it, I do it often, but so we can push that or we can, I can go run around and get it, we can do it. Whatever you want. What's your pleasure, guys? Okay, since we are in appointment season, if we do get new members, they will have to take it. So it might be good to wait till next month? Yeah. Okay. I would, I would recommend that we wait until next month. Is there potential that we would have new members at the next meeting? There's a potential. Okay. I'm fine with waiting. I'm okay with waiting. Okay. How much you guys feel about talking about what's in the city charter and whether or not our code complies with it? I believe we just did that, but we could do it again. I mean, I think I presented the charter language to y'all at the last meeting maybe, but I can certainly put it, we can do it again. I think that might be helpful if we put together whatever we're going to propose to the council for to try and convince them. To me, it would be helpful because it might inform a decision about do we keep trying to fix this code or do we just look at someone? The things that were, that I think are not covered, are pretty basic to ethical codes and should be there. And it was shocking, they were all thinking through and some of them were just not there. So I would like to have a more discussion about that. Is that okay with everybody? Andrea? Okay. Do we need to vote on that or? No, I'll just note that that's 120 minute or sorry, an hour, 20 minutes, so you're aware. All of those things, that's how long the meeting would be about is my estimate. Okay. What if we put the research about the advisory panel off until the following month? What are you guys thinking about that? That gets us to about an hour. Andrea? Yes. So we're moving the advisory opinion discussion to December. December because we're okay. Yeah. Okay. So you don't need to do a motion, I just need to do the direction. Okay. So since we will not be covering item F, then are there any other components or? Yeah, I just want to make sure, do they need the motion to postpone that or something Scott or do we just do a group motion? I think it'd be clean if you all did a motion to postpone it. Okay, with someone, I would entertain a motion to postpone that. So that's going to be postponed item F and? To what meeting? To what date? December meeting? To December. Oh, the training? No. November 4th, right? The discussion, the research item. Well, the training is on the agenda today, so that's the motion to postpone that. Oh, okay. Yeah. Sorry, I'll say that again. I move that we postpone item F, BLE 24-037 to the next meeting when we can potentially have you. David, are you seconding? Yeah, I'm seconding. All in favor? Aye. Unanimous. Okay. So having no further business, this meeting is adjourned. It is now 640 p.m. [BLANK_AUDIO]