Nov 04, 2024 Board of Ethics on 2024-11-04 5:45 PM

So it is Monday, November 4th, 2024 at 5.45 p.m. and I am calling the regular meeting of the Board of Ethics to order. And I understand we do not have any presentations from members of the public. And just as a note, I'm going to try to kind of push through this agenda. So if I am pushing too fast, just tell me and I will slow down. Items for consideration, item two, a BOE 24-03A, consider approval of the minutes for October 7th, 2024. So we have both the special called minutes, so we'll start with that, exhibit one. Does anybody, you were at that meeting, right? Yeah. The two of you were. Did you see anything that needed to change? No. Okay. So can I hear a motion on that? I'll motion to accept the minutes for the special, is it a special meeting? Special call meeting. Special call meeting on November 7th. October 7th, sorry. And is there a second? So I watch the video, can I second it from watching the video of the meeting? Anyone can second it. I'll second it. All right. So it's been moved by Andrea and seconded by Patricia. And all in favor, raise your hand. Aye. Okay. Those minutes passed. Exhibit two, October 7th, 2024, regular meeting minutes. Does anybody see any changes that need to be made? Hearing none, I'll just ask for a motion. I'll motion to accept the minutes for the regular meeting on October 7th. Is there a second? Second. Okay, it has been moved by Andrea and seconded by David. All in favor, raise your hand. Okay, that's unanimous. Item B, DOE 24-040, receive a report, hold a discussion, and take necessary action regarding the ethics complaint process. Detailed and coded ordinance is Chapter 2, Article 11, Ethics. See Section 2-281, meetings, and Section 2-282, disposition in the Board of Ethics rules and procedure. So we have Exhibit 1, which is an information sheet. We have Exhibit 2, which is the proposed language. So I guess I'll move on to the proposed language. I'm the one who wrote this, and I do have the sheet that Madison sent me. It's almost filled the page, all the brainstorming that we did. So what I was trying to do was condense it into as few words as possible. So is there anything that needs to be added or taken away from that wording? Could someone close the door? Thank you. So no changes? This is only a stylistic thing. Chilling effect and complainants? Is there anything that needs to be added or taken away from that? I should say, I don't know. Something more, maybe something more. I don't understand what you're saying. Is there a better word? Chilling effect? Could create an undue obstacle? It's more technical than chilling. Or could discourage? I'd say discourage and complainants. I just switched discourages and complainants with the face. I agree. Any other? While that's second, all other quotes do not mention? Okay. Okay. What else? Anything else? Anything to take out, anything to add? Maybe dismisses anyone lacking information, maybe some. Anything else? Okay. Okay. Anything else? Sorry, what was that? Change anyone to someone? Dismisses someone lacking. Just to some. What else? Is that a fear, maybe confusion? I like that. At which point? The third from the bottom, when it says fear based on counsel. I like that just because it uses another word. It's easy to dismiss fear versus confusion is easier. What about the bottom one, fear of weaponization, potential for weaponizing code? Okay. Madison, I can make those changes and just send you up. Sure. Yeah, I took my notes on it, but that works for me too. I will do that and send it to you, John. Anything else? I'm still hovering over that last one that is already recognized between counsel members. Take that one. Potential for weaponizing code to stop there? Yes. Yeah. Yeah, that does sound a little... Too wordy? Well, it sounds a little accusatory. Yeah, so I'm fine with that. Madison, is there any way for you to add these suggestions to the big screen here? I'm having kind of a problem hearing some of them. Oh, sorry. Oh, let me just go over. So on the second bullet point, it should now read all other codes. Do not mention burden of proof. On the strike silent? Mm-hmm. Okay. I'm sorry. This is a PDF. I can't change it. Go ahead. On the fourth one, discourages complainants who could face frivolity finding. Okay. And on the sixth one, dismisses someone lacking information, resources, or unique means to pursue complaints. To pursue complaints. That's the one I just matched up with. And then the next one that should start with fear based on counsel's lack, confusion based on counsel's lack of understanding about code's purpose. And then the last one, we're just going to say potentially weaponizes code. How's that? Okay. I will type those in and send them to you in the morning medicine. So are you okay with these things? Did I leave anything out? Because it was like a page of stuff, but there was a little bit of redundancy. That's what I suspected. Yeah. Yeah. Yeah, that's typical. Yeah. No, I think this is a good summary of what we had and what our concerns were. Good. So, we will add those to our reasons why we are not going to do this. Why we would recommend against the burden of proof being made. So if we're ready to move on. Well, I guess, what's the direction? We have this language now. What is the direction as far as like, does that make sense? Yeah, it's our reasons for why we would like to see the burden of proof removed. Right. Which I think is great because I don't know if they understand what we're coming from or why that was a problem. Right. So then you want to take a proposed amendment to the city council with this additional language. Would you like it to be basically the same language changes that you proposed last time or do you want to revisit that? This is not proposed language. This is just the reasons we recommend the removal of burden of proof. I think that is such an important thing. I do have a question now. I talked to my son-in-law and also a friend, they're both lawyers, and they don't understand why we wouldn't want burden of proof. And that's what some of the council people are saying because they are worried about people just coming up with accusations without any proof. So how does that work? Because if the person is in most legal situations innocent until proven guilty, then the accuser has to provide the proof that the defendant did something wrong. Typically the whole presentation would be made in a court of law, it would be made by someone defending the person. I'm just asking who does have the burden of proof? Nobody? Really nobody I guess. It's just silent everywhere else. I've never seen it anywhere except in Dallas, but their system is so different from ours. I've spent an hour explaining it, but I've not found it anywhere else. And what I think it does is it skews it so that the attention is then placed on the person who is making the accusations. I mean it's one of the things we said that it weakens the constituent's perspective and it takes out the voices that could be more objective. It puts focus on the complainant instead of the merits of the complaint. So, you know, does that make sense? I'm still confused because who does have the burden of proof then? Basically it's what the person submits, but by completely placing the burden on them, it's just turned out to be a very negative thing from what I've seen. It's all about why did Andrea make this accusation against this council member and what are her motives? And for this thing, I just don't think that's very helpful. I think it's more about here's the complaint. Here's what the respondent has to say. They have a chance to respond. But at least, especially in the way it gets covered in the newspaper, it's all about human complainant. I mean somebody could kind of say, "Council person so-and-so broke the law with no proof." And then the council person said, "No, I didn't." And then where would you go? Well, I think that's different because we are not ever discussing breaking of laws. Well, we would be discussing… The ordinance is a law. So we are discussing it. It's just a local law. Okay. I think if someone just said, "Council person Smith broke the law and didn't offer any more than that," that wouldn't even be a complaint. I guess if they filled out the form and that's what they wrote on it and they got it notarized, it wouldn't be a complaint. We would have to proceed to the preliminary hearing on this assessment at that point. And that's where the panel would determine if it was a complaint on its face. If we assumed everything in it was true, would it be a complaint? At that point, if it literally just said, "They broke the law," my assumption would be we would not determine that to be baseless because there's no evidence. But that does put the burden of presenting evidence on the complaint. Yeah, it does. I just haven't seen it in any other code. I know we've looked at every code in the state. But I wonder, isn't it, that is what we were discussing though, is the burden of proof of coming in front of the meeting and presenting the proof of why council member Sump, whatever, broke the law. That is the part that we want because the complaint form is still the same. The complaint force still is going to ask for pieces of that. But I think our biggest discussion was about the requirement for the complainant to come in front of the committee and providing evidence in additional level to prove their point. And that is the hindrance that we were trying to eliminate by removing this burden of proof. Not the fact that there's no evidence that would be submitted, but it's a very different thing to fill out the form and attach the proof that we think that shows that there is a complaint versus coming in front of this board and making a presentation of why. Am I wrong in my recollection? Yes. In the original red line language that we presented to council, what we changed in the ordinance was just removing that burden of proof section. And then there was a bunch of changes to the rules of procedure, which requires the complainant to appear and to testify. This part here is determined if the complainant is present. We removed that basically. If the complainant is not present, the complainant automatically gets dismissed. That was part of that language. And then this is currently how the evidence hearing is structured, where the complainant makes this opening statement for three minutes, then the respondent goes. So the changes that we made basically made this like a "if they're there," where they have the option to do that. Or they're there to answer questions, which I think would be important. But it wouldn't require them to be there to answer questions. The way it was is asking them to be like a legal representative, which means I think any wise person who makes a complaint the way that is, they're going to have to hire a lawyer. And so that's what we mean when we say it. If you as a citizen saw something that was wrong and you can prove it, don't think you have to hire a lawyer to make that complaint. And I'm not saying that they can't. They can, certainly. But I think it just takes out voices that really could have some important concerns that you need to raise. And the other codes that you looked at that don't have the wording burden of proof, is it just implied that there's going to be some evidence that a person would very much make a complaint? I don't think they even have procedures that are as complicated as ours. Well, we've never asked if they have procedures. Most don't have, that we looked at from what I can remember, because we did look at this, don't have a specific section of the ordinance that calls out that the complainant has the burden of proof. Most do either require the complainant to testify or present some evidence at a hearing or something similar to a hearing, or they have essentially a separate body that investigates those complaints. We don't have that set up. In some cities, somebody from the board actually does some investigation. Like in San Antonio, they have an entire office. I mean, there must have been a lot of staff for that one thing. So what this burden of proof is not eliminating is the form that actually requires to provide some evidence. What we're really discussing is the elimination of that. The term, those buzzwords. Well, and this, the complainant being present. Well, evidence is providing a burden of proof, providing some sort of proof. But it's technically speaking part of the complaint process that gets it started versus where the burden of proof requires the attendance of the... Well, we're still requiring that. No, we don't. I mean, at the moment, yes, but the proposal would eliminate that. And yeah, I wouldn't be getting ahead, but I was going to suggest the person would be required to attend or their proxy as a compromise, because the city councilman didn't like that. They wouldn't attend. So I think if they're not going to attend, then they need a proxy attend. Well, I definitely believe that they should face their accuser. And I mean, that's part of the process. It is skewed very much in the favor of, "You're going to have to come tell me. You're going to have to do the whole..." I think just knowing that you would have to file the thing and provide the evidence and also come with an opening statement in 30 minutes, that's much. And in our code is pretty mild. I mean, the stuff that we cover is not state law. And in fact, that was one of the arguments when they were looking at this, the three women who were on council did not like it because it was weaker than state law. And it still is. Because it was what? It's weaker than state law. Oh, weaker. You could break state law and not be in violation of this code, because we just don't cover it. So that's problematic, because in these other cities, like Dallas and San Antonio, they've had some awful stuff happen. It's scar tissue. They have these big offices. Also something I learned when I went to the Charter and Youth Committee was that it's right at about the size that cities get ethical codes, because they're big enough that the city's a big enough business. Does that answer your questions? It answers that I understand your opinion. Okay. So you don't agree with that? Not entirely. I'm going to take out the words "burden of proof" because like you say, they stopped to thaw the form with their evidence. We have a panel to see if there's enough evidence. But I guess the part I disagree with, I don't think that a person has a complaint that doesn't have to show up or send a proxy. That was the one I had a problem with. Okay. So do we need to make a motion on that? What do we actually have to get to that? I understand this is language that you would like the Council to see. I guess I'm a little confused on how you want that to be delivered. These are just the reasons. So, because I mean, if you're not, if you don't, if the direction is not to pair it with a proposal, we could send it in a Friday report, and it would go to them. But if we look at the next thing, because I wrote a whole page of things that I think need to happen for our code to be workable, so we might look at that and figure out, because "burden of proof" is on there. Does that sound... True. Is that exhibit three? It's in the next item. It's in the next cluster of things. So let's close this discussion and move on to the other item, if that makes sense. So item C, BOE 24-041, Receiver of Holdings Discussion and Give Staff Direction Regarding Future Meeting Topics. I would like to ask that exhibit two be moved to the end, and we look at one, three, four, and then two. Because four is, two is when we're going to decide what we talk about next. Yeah, we can go in whenever we want. So if we get to exhibit three, the Recommended Changes for Denton's Ethics Ordinance. So when I looked, I spent a lot of time looking at the City Employees Code, which I love because the wording is so positive and it explains what transparency is, but the things, it has a lot of stuff on nepotism, which is not a particular issue for counsel. So I would recommend that we look at taking removed Section 2-273A and replace the City Employees Ethical Code, Section I, Complex of Interest, or one, Complex of Interest, and two, Private Interest in its place. What are we, I'm sorry, what are we, were we posted for this? Future agenda items. Future agenda items. Yeah. Right. So we, so we're discussing, discussing these items at a future meeting. Right. Put the, you're asking, what's the topic? I want to just show people what I think would make it okay, and then we can talk about it hopefully at the next meeting. You want to, I'm just confused, you want to put this list of things on an agenda to be discussed at a future meeting? Right. Well then you shouldn't be discussing the list necessarily. Okay. Or are you wanting to go through and make each of them individual agenda items for a future meeting? I think that's where I'm confused. We could do that. I would like, my concern is that there are things that are not in this code of ethics that were mandated when the 80% of the residents voted for a code of ethics. And so if we did most of the things on this list, and some of it's just housekeeping stuff, so the big things would be conflict of interest. We have a section there, there's three other parts of the current code of ethics. I want to look at the sections B and C to see if we still need them. I think the question for the board is, at a future meeting, would you like to look at these things in more detail? Like I can bring back what this language would actually look like, and we can make this determination. Right. If that is the direction that the board would like to put it on in December or January or whatever meeting in the future. Does that make sense? Yes. Does that seem obvious to you, Scott? So you want to just have a motion? We don't need a motion, just direction. Okay. This is typically how we do these. So are you guys okay with looking at these items at maybe the next meeting? And here's kind of what we've got upcoming. Right. Where I'm a little confused is though, because now we have, and I think that's where you've been, is we have this outline of our rationale. But what are we doing with the burden to prove changes that we've done? It's one of the things, it's one of the items in there. It's one of the items for a future topic. For a future topic still? For a future topic. To make a decision in that. I was hoping that we could look at the packet and go down the line and say yes, no, yes, no. Okay. I mean, I'll go through and don't talk, like discussing the merits of each bullet point, just say yes, I want to talk about that in the future, or no, I don't want to talk about that in the future. Okay. That's on posting. Yes. Okay. You want to go through these bullet points, or I can't, I'm not sure. That one, I think. That one. Three. Okay. So that would be future item, and then, so I guess we're just telling the, oh, there's a two minute pitch request that we need to look at. So that's exhibit three on your agenda. So here's the backup that we made. So this was a, this was a two minute pitch, which is a process through which council can request the city council, other members of the council, consider things that they would like to do. Back in June, council member Beck requested to have a work session to discuss the board essentially providing guidance to council on interactions with petitioners, applicants, and partners. That work session then occurred on October 15, I believe, and the council at that time gave direction to send this request for guidance to the board. So now I'm bringing it to you as part of that direction. They did not really provide any additional guidance on when they would like it back or what they would like that to look like. I would definitely like to look at it at the next meeting. It might be a long one. Can we, can we move on this tonight? We can decide, I mean, move on. I guess it's a, it's in the future meetings item. So if we would like, you would like to discuss it at a future meeting, you can give direction to do that. Essentially I need direction on like, what do you want to do next meeting and maybe a little bit on what you want to do the meeting after that. So we have that and we have the list to consider for our next meeting or the meeting after, depending on what we decide. In last meeting you had given direction to discuss what other cities do with advisory opinions in December. And then we had discussed doing the ethics training today, but we're anticipating having new members by December, so I didn't want to miss them. So that is also needed in December, likely, or January. Okay, so we're down to deciding. So what's your pleasure for the next meeting? The urgency I've dealt with this list I made is I would like to get this to council last time we had to wait five months. I'm not going to make a comment about why I don't want to do that, but. Just a question for Madison. Can you kind of summarize where we are right now with the council? You may not have names yet, but where we are with nominating process and getting us back to seven members. Will that happen in December or what are we looking at? Yeah, I believe so. My understanding is at least one of the two people have been nominated. At least one of them, I believe, has finished vetting and they should be on the November 19th city council meeting, which is the next council meeting for appointment. So then they would have to finish certain trainings, but they would most likely be at the December 2nd meeting. So then would they go to training before they can sit, take a seat or pass? There's like some Texas Open Meetings Act training that they have to complete that y'all have all had to complete. And then we would have the annual ethics training in December for everybody that everybody has to complete anyway. We can do that stuff in the evening. It just depends on how personally motivated each one of them are. So the very earliest that we can be back to seven members would be? December 2nd. So back to the recommended changes for the Denton's ethics organs. I think just keep all the whole list in so that gives us flexibility next time to talk about any of them. And if we run out of time or change their minds, we can talk about it. But then the one that the city council wants us to do is a pretty big topic. And so we might need to put that for a future January. That makes sense. Unless you really want to do all of it. I am concerned that we're not going to get to this recommendation of lists in one meeting. Well no, but if it's not on there, we can't talk about it. So just keep the whole list to be continued if we don't get through it all. There are two big things on that list. The rest of it is stuff like change the language so it's more house keeping. Well I do think that eight and nine are pretty big. Yeah. I can take them off. I would say leave them on just in case we have time to talk about it. Yeah, we've been always. You just then push it out to the next meeting. So the direction that I'm hearing right now is that in December we would have the minutes. We would discuss advisory opinion research. We would have the annual ethics training. And we would at least begin discussing this recommended changes. But with your timeline. Right, we would be probably at an hour and a half. Yeah. In December. Yeah. I don't think that that is feasible. Can we take that first one off, the advisory? We can do that if that's good. Till January? Yes, because it is, because that does not go with the list. I would agree. Move the advisory opinion research to January. And keep the list under ethics training. Okay. I will send you an updated list. I'll fuse the word changes we made into it. The burden of proof list? Right. Okay. And then do you want that as part of the discussion? Well, since burden of proof is on there, those are our reasons that we were offering to council. Okay. I can include it as an attachment to the item. Oh, okay. We're talking about the red line? So my understanding is for this item, for next time, I'll basically try to put together a red line that does this. Yes. And then have the rest of the list so that we can discuss some of the kind of clean up things. And then these items as well. And then also have this as an attachment as part of this discussion. Okay. Does that make sense? Yes, I think so. It would be weird if we kissed them. That would be weird. We won't do that. Okay. So there are no other items, no other things we need to discuss. So it is now 6/25 and this meeting is adjourned.