Dec 16, 2024 Board of Ethics on 2024-12-16 5:30 PM

So we'll go ahead and begin. Yes. Okay. Good evening. It is 5.30 p.m. on Monday, December 16, 2024. This is a meeting of the Board of Ethics. And we are -- I understand that we do not have any presentations from members of the public. So we'll move on to items for consideration. And so that would be BOE 24-04A, Consider Approval of Minutes from November 4th and December 2nd. So we'll start with November 4th. Are there any questions about the minutes from November 4th? >> Move approval. >> Okay. So Zeltner has moved approval. Do I hear a second? >> I second. >> Everhart has seconded. So all in favor? >> Aye. >> Aye. >> Passes unanimously. Okay. Exhibit 2, Regular Meeting Minutes from December 2nd. Sorry. The next thing would be the evidentiary hearing minutes. So anybody have any questions about it? Okay. So -- >> I'll move that we approve. >> I will move to approval. Everhart seconded. All in favor? >> Aye. >> So Exhibit 3, Regular Meeting Cancellation Minutes from when we had the meeting but we got blotted out. So any question about the statement that we couldn't have the meeting? Okay. Motion to approve. I heard Zeltner. >> I'll second. >> Second. So Zeltner moved and Reiki seconded. All in favor? >> Aye. >> Passes unanimously. Okay. I will say I apologize. I am soft spoken. And so if any of you cannot hear me, give me a little signal and I will do a better job of speaking up. So Item B, BOE 24-049 Received Training and Madison Rochart is ready to give us our training. >> All right. This is the Ethics Ordinance Training which is required annually for city officials including you as the Board of Ethics. So I'm just going to go ahead and start the training. It shouldn't take super long but we'll have questions at the end. So today we will be covering one, the ethical expectations laid out in the city's ethics ordinance. Two, the ordinance's mandates and prohibitions or what it requires. Three, how city officials including yourselves can request clarification on its application. And four, a quick overview of what happens if an ethics complaint is submitted against you as a city official. I'll dive right in. To begin, City of Denton's ethics ordinance was adopted in 2018 and was most recently amended in 2023. This ethics code is intended to foster an environment of integrity for those that serve the City of Denton and its residents by ensuring that decision makers provide reasonable stewardship of city resources and assets and providing behavioral guidelines and requirements. The key goal of the ethics ordinance is to further the public's trust in those who govern their community. More specifically, the ethics ordinance outlines six aspirational expectations. These expectations cannot be used as the basis of an ethics complaint but they are intended to guide City officials in carrying out their duties. These include conducting yourself in a manner that fosters public trust, performing your public duties with personal and organizational integrity, avoiding behavior that might call your motives into question and erode public confidence, placing the interests and concerns of Denton's residents above your own, valuing honesty, trustworthiness, diligence, objectivity, fairness, due process, efficiency and prudence, and balancing transparency with the duty to protect personal privacy and preserve any confidential information that you have been trusted with. While the rest of this training will focus on specific behaviors that City officials must comply with, this is the most important section of the ethics ordinance. You ever find yourself questioning if a specific action or inaction might be ethical? First, ask yourself if it would align with these expectations. It is important to realize that these expectations are not only focused on the way things actually are but also how they appear. A City official has a position of privilege within their community that they must respect. Serving your community as a City official is an honor that requires integrity and dedication. In general, you can think about an ethics code or this ordinance as a stoplight. In some instances, the code clearly prohibits specific behaviors or creates a red light. However, in other areas, the code creates broader prohibitions or yellow lights. Yellow lights communicate that a City official should thoughtfully and cautiously consider if the action or inaction is ethical based on the City's expectations as they proceed. Throughout this presentation, I'll be calling out which parts of the code are red lights versus yellow lights to help provide guidance. Now that we've covered the basics of the City's ethical expectations and general guidance, I'll get into some more specifics. So the ethics ordinance includes three mandates and nine prohibitions that cover different actions or behaviors that City officials may take. We'll briefly cover them over the next couple of slides. However, more details are available in the ethics ordinance. So beginning with mandates, the ethics ordinance requires that City officials disclose certain business relationships if they are relevant to a pending matter. Specifically, if a business entity with a pending matter is owned by a City official's partner, the City official must disclose this relationship to the City secretary and City auditor at least one business day before the meeting where the pending matter will be deliberated. All disclosures will then be provided to the relevant body before the deliberations. This disclosure requirement is a yellow light in the ethics code, as even though City officials are allowed to deliberate on these matters by the ethics ordinance, it calls out that there may be a risk that this type of business interest may receive unfair treatment from the related City official. In addition, it requires that City officials comply with any financial disclosures required by Texas state law and that City officials report any person that they know has violated the City's ethics ordinance. These mandates are red lights and not reporting a known violation is itself considered to be a violation of the ordinance. So now, any questions on mandates or prohibitions? On to, I'm sorry, on to prohibitions, which are potential City official behaviors that are specifically considered violations of the ethics ordinance. So beginning with conflicts of interest, ethical best practices suggest that a City official recuse from deliberating on a pending matter if they or their relative have a personal or economic interest in the business entity or property that is not shared with the general public. This general guidance is a yellow light that is intended to draw attention to the risks of conflicts of interest. However, I should note that while this is good guidance for City officials, this general prohibition is not actually included in the City's ethics ordinance. DINZEF ordinance does include some red lights and specifically defines the following as conflicts of interest. Owning 5% or more of a business entity's voting shares or stock. Owning $600 or more of a business entity's fair market value. Owning $600 or more of the fair market value of real property. Receiving $600 or more in income from a business entity. Serving on the board of directors or as an officer of a business entity or nonprofit. Or having solicited, received, or accepted an offer of employment from a business entity or person in the last 12 months. You have a conflict of interest as defined on the slide with a pending matter on an agenda. You are required to recuse yourself from the discussion and submit an affidavit of abstention to the city auditor. Which is me. A pending matter includes an application seeking approval or authorization, a proposal to enter into a contract, or a case involving the city that is or may be before a civil, criminal, or administrative tribunal. Further, it is a violation of the ordinance for current City officials to represent a person, group, or entity before a City Board or commission for compensation. This prohibition also applies to former City officials for one year after termination of their official duties. Similarly, former City officials are prohibited from performing compensated work on a City contract or arrangement if they substantially participated in the negotiation, award, or administration of the contract. Unless that participation was limited to deliberation. Any questions on conflict of interest or anything else on this slide? Next, the ethics ordinance prohibits a City official or their relative from accepting any gift that might reasonably influence a City official in discharging their official duties. This is a general prohibition that acts as a yellow light for City officials. The ordinance does also include gift-related red lights. Specifically, a City official cannot accept a single gift valued more than $50 or multiple gifts with a total value of more than $200. In general, a gift is considered to be anything of monetary value, such as cash, property, services, meals, entertainment, or travel-related expenses. If a gift is accepted, the City official may remedy that potential violation by promptly donating it or reversing the gift giver for the actual or fair market value of the gift. If a gift is accepted, the City official must disclose the acceptance and the remedy by filing a disclosure with the City auditor. The ordinance does allow certain exceptions to the gift's prohibition, meaning that these are considered green lights, which includes lawful campaign contributions, expenses related to a City official's travel to a conference or other training event that's connected to the City, expenses related to appearances at nonprofit or community events related to City business, complimentary attendance at fundraising events or hospitality functions, complimentary or promotional copies of trade publications or clothing items, or gifts that are given due to personal, familial, or professional relationships, regardless of the City official's City-related duties. Any items that fall under one of these exceptions do not need to be disclosed. However, a City official may choose to disclose it at their own discretion. Questions about gifts? Next is a violation of the ordinance for a City official to misuse the influence or information gained due to their official City position. Specifically, a City official may not use their influence to secure special privileges or treatment for a person, group, or business organization beyond what is normally available or to imply that they can do such things. While this is a specific prohibition, it is a yellow light as it's not meant to prohibit a City official from providing individuals, groups, or businesses with information on how City processes work so that they may more easily access normally available services. For that reason, City officials should proceed cautiously and thoughtfully when trying to help the public with specific concerns. Specifically, City officials should be cautious when stating what they do, what they can do to ensure that a concern is addressed. Further, a City official may not state or imply that they are acting as a representative of the City unless they have been authorized to do so by the City Council, and it is a violation of the ordinance for a City official, either current or former, to use confidential information gained through their official capacity to advance the personal or private financial interests of themselves or anyone else. These are red lights as there are no instances where misrepresenting yourself as an authorized City representative or using confidential information for personal or private interests would be ethical per the City's ethics ordinance. Questions about this slide? Last of the prohibitions, it is a violation of the ordinance for a City official to abuse the City's resources or the power or privileges granted by their official position. Specifically, a City official should not use, request, or allow the use of City resources such as facilities, personnel, equipment, software, or staff time for private purposes, including political, except to the extent that those are available to other residents. While this is a specific prohibition, it is also a yellow light as it does not have clearly defined thresholds and there are instances where a City official can ethically use City resources, such as renting a City facility at the publicly available price. On the other hand, it is a violation of the ordinance for a City official to harass or discriminate against a person based on their ethnicity, race, gender, gender identity, sexual orientation, marital or parental status, or religion. It is also a violation to interfere with any City-related criminal or administrative investigation, such as persuading or coercing someone else to uphold their cooperation. These are red lights as there's no instances where harassment, discrimination, or interfering with an investigation would be considered ethical behavior under the City's ethics ordinance. Any questions about this? All right. - Would that include an ethics complaint? - That last bullet? I believe it could. I also think there's also the ex parte communication, so I think it depends a little bit on what exactly was happening. - Okay. - Move back, it helps. - Yes, thank you. All right, now you have an understanding of the expectations, mandates, and prohibitions outlined in the ordinance. If you ever come upon a situation where you need additional guidance, you have a few options. So first, if you need direction helping to find a section of the ordinance related to a particular situation or an answer about how to submit disclosures or complaints, you can reach out to me in the City Auditor. Second, if you have an attorney, your personal attorney, they may be able to provide you with an interpretation of the ethics ordinance to help you decide whether to recuse yourself or not in a given situation. And finally, you can also request that the Board of Ethics after all issue an advisory opinion, which is intended to answer questions about compliance with the ethics ordinance in a particular situation. The biggest advantage of an advisory opinion is that a city official may use it as an affirmative defense to a submitted ethics complaint if they relied upon it in good faith. To receive an advisory opinion, a city official must submit the request in writing to the City Auditor, including relevant details of the situation in question. The City Auditor will then communicate the request to the Board of Ethics Chair, who assigns it to a panel of three Board of Ethics members for review. The panel then has 30 days to issue the advisory opinion once the request is received. Any questions about this process? Finally, the Board of Ethics' primary function is to process ethics complaints. There are four phases of the ethics complaint, oh, this is disputed perhaps, maybe not. Anyway, sorry. There are four phases of the ethics complaint process that I will now briefly run through. Additional information about the ethics complaint process is available on the city's Board of Ethics webpage or can be requested from the meeting. First, initiation. During this period, an individual submits an ethics complaint using the prescribed form to the City Auditor. This complaint form should be accompanied by any evidence such as images, videos, or documentation that the complainant has passed to support their allegations and must be sworn to before a notary. The City Auditor then determines that the ethics complaint is administratively complete, but does not make any judgment on the complaint's merits. If a complaint is accepted, a copy is forwarded to the complainant, the respondent, and the Board of Ethics Chair, who assigns it to a preliminary assessment panel. During the preliminary assessment phase, a panel of three Board of Ethics members reviews the submitted ethics complaint and determines if it is actionable or baseless. If the complaint is actionable, if on its base the behaviors alleged in the complaint would constitute a violation of the ordinance. The panel may also recommend that a hearing be held to determine if the complaint is frivolous instead of determining if it is actionable or baseless. The outcome of the preliminary assessment is communicated to the complainant and responded by the City Auditor. If the complaint is determined to be baseless, the process stops, though the complainant may submit a written appeal within 10 business days, which will initiate the hearing phase. During the hearing phase, the Board of Ethics schedules an evidentiary hearing and may request additional documentary evidence or issue subpoenas to require individuals to testify. The complainant must attend and testify at this hearing and may also present any additional evidence that they have gathered. In addition, the respondent may provide testimony and evidence for the board's consideration. Both the complainant and respondent have a right to be represented by legal counsel at the evidentiary hearing. Based on this hearing, the Board of Ethics will determine if a violation of the ordinance has occurred and if so, it may issue a sanction. Once the board has decided on the ethics complaint, the complainant and respondent both have five business days to submit any new evidence and request a reconsideration in writing with the city auditor. The Board of Ethics chair will review the reconsideration request and will unilaterally determine if the new hearing is warranted based on the new evidence. If during the evidentiary hearing, the Board of Ethics finds that a violation of the ethics ordinance has occurred, they may issue one or four sanctions based on the city official's perceived intent and the seriousness of the violation. This decision process is generally illustrated in the decision measures on the slide. And if the board decides to impose a sanction, the city official will be notified within 10 days by the city auditor. All right, congratulations. You've completed the ethics ordinance training. Any questions about that, the last part, but a lot of y'all have gone through the hearing process. - Thank you, Madison. - And then I have a form for everybody who has intended to sign. As acknowledgement, and then we did get a request from Scott to assist, hold, to suspend? - Recess for 10 minutes. - Recess, yes. - Well, can I make a request? We have a new member here, and I wanted to introduce him and let him introduce himself to us. So could we just take that time to get to know each other? - Sure, I think that's recess maybe, but I don't know, I guess we could do a-- - Can we call it recess? - Just one question for Madison. Madison, part of our training used to be Wechsler's in a nutshell. Has that been pushed aside or is that the entire package? I mean, it's still excellent reading. - Yeah, I think it's recommended. I don't have any way to ensure that people have completed that reading. - Is it still, it was listed on-- - I believe it's still on the website. - As recommended, but not required. - Yes, I believe so. - Okay. Well, for the new members, I would also-- - I highly recommend it. - I would pass that along. - And if you wanna dive into this down some pages. - Yeah, it's so-- - I recommend that too. - I'll send you the link if you're interested, but it's 24 pages that takes this well into the next level. I mean, that's, what you've done is excellent there. - And this is our actual ordinance, and so, yeah. - And there's, well, and since you bring that up, 85% of that is great, 15% is toxic. And these are paired, so that's, anyway. - You mean the content? - Well, no, our current code. - Oh, yeah. - No, no, I just-- - No, I mean-- - I can't say enough about Weschler. He is a, he's probably the most recognized city ethics, and he's a Harvard and Columbia trained lawyer, so. Anyway, so, our new, go with the introductions, our new member is Kenneth Ferguson, so. Can you say, tell us a little bit about yourself? - Yes, ma'am. So, Kenneth Ferguson, I own the Ferguson law firm here in Denton, do civil litigation all over the country, but I am from originally Kerrville, Texas, if anyone knows where that's at. And my Germany-- - Hill Country. - It is beautiful little place, it is the Hill Country, so it's very rocky. I started up here about two and a half years ago now, maybe three, and I just really enjoyed being up here in Denton, I like the community and I like the people around. I've got a wife and one kid, he's just turned three last week, so, little baby. And, yeah, that sets me in a nutshell. - The excitement at your house is just overflowing right now. - Yes, yeah, so, we're hoping to have another one here coming up soon this year, so, that'd be nice. - We are so glad to have you here. We've been waiting for new members, so. - Especially with young child, it's so grateful that you're willing to contribute your time with probably your wife and child, wish you were home. - Oh, no, wife of an attorney, she is used to not seeing me until about midnight, get up at 5 a.m. and I'm gone, so, yeah, she's used to it. - Thank you so much for your time. - Thank you. - Of course, I'm excited to be here. - So, Andrea, I'm gonna tell him a little bit about yourself. - Yes, Andrea Eberhardt, I am a special education teacher here in Denton ISD, I work with students, more specifically, that have behavior issues at school. My background is in psychology and research psychology, so, I have a little bit of a different path than a regular teacher, I have two grown children, both graduated from college, one is about to be 25, the other one is 22. - Nice. - My name's Annetta Ramsey, I am a PhD trained licensed counselor, I specialize in eating disorders. I also like to write and I'm finishing up a book right now, so, and I have two grown sons, one is an engineer who works at Peterbilt and the other is, he works at Yellowstone, so we get to Yellowstone and we come in canvases. - Nice, I'm a sucker for Yellowstone. - Oh, he's such an important place. - My name's Dustin Pavlick, I'm a mechanical engineer, I work for a consulting firm, it's based in Houston, but I work here in Denton, I was born and raised in Denton, went to Denton ISD schools and I had two kids in Denton ISD schools, one was in elementary and one was a freshman and didn't run, nice, okay. - I'm Pat Renke and I'm a licensed professional counselor and I'm mostly retired and have few clients still. And I have three grown children and four grandchildren and lived in Denton since 1985 and involved in a lot of different groups over the years. - My name is David Zoltner, I have been a Denton resident for about 40 years, my children have all graduated and moved on, I have been a city council candidate more than once, ever one. This ethics board and the ethics ordinance was one of our endeavors back in the early 2012s, so this is kind of what I've been shooting for and hoping for for many, many years, so welcome. - Thank you. - Great, are we still in recess? - Give me those. - Do what? - Do we have a time for the recess, did you get the time? - You have to call. - I don't know if we called it. - I don't think we did. - Oh, okay, but we are officially in recess, this is now 5.55, so we will recess until 6.05. - Yes, Scott said he's five minutes away, so he should be here. - Okay. - Madison, can you say a little bit? Madison is our advisor and she is the auditor for the city. - I'm the city auditor. (audience laughing) - I just gathered. - I was in 2020, I report directly to the city council. I do performance auditing for the city, so that's my real job, but I am happy to help out here. - Have you won a national award for plus two? - I think it was a couple years ago. - A couple years ago, yeah. - We won a couple awards, so. - Nice, yeah. How long have you been in city politics for? - This city, I moved here in 2019, and I was at a college station before that, I'm part of the city now. - Okay, nice. - What about Joey, who are you? - All right, I'm the financial administrative assistant. I work with Madison, and I also work with marketing communications, budget, payroll, a lot of hats. But I'm the one, I guess, trying to set everything up. - The one who gets things done, yeah. - Try, try. - Okay, we will continue with our recess. - I don't think, I think we can, I don't know. - Okay, we can call ourselves, I'm calling an end to the recess. - No, you should wait until 6 o' five, because someone has left, expecting until-- - Oh, okay, that's good, okay. - I'm sorry, I'm late, I worked here for three years, I never had that happen, where my calendar just didn't have a meeting on it, so. - Oh man. - I forgot to check the public notices, so. - Thank you for giving, you're pretty important to us. So why don't you introduce yourself, we've all. - Oh, I'm Scott, I'm the deputy city attorney, I'm a parliamentarian for this board. So I try to help with, I help with the parliamentary procedure, Robert's Rules, stuff like that. I don't, I try not to get too deep into giving advice, because my office is covered by, well not, maybe not me specifically, but my boss is covered by the ethics ordinance, so I try to let y'all make those recommendations to city council without interfering too much. But I just try to make sure we're all complying with the means act and Robert's Rules, yeah. - Are you an RP or a PRP, the registered parliamentarian? - Yes, I am a registered parliamentarian. - Nice, I wanted to talk with you about that, and wanting to, you know, there's not a course for that. You would think it would be like a Barbary-style, here's how you, let's prep you for the RP test, but. - No, but they're, the test's pretty easy. And there's a. - Don't even say that. - There's a really short book that's just, like Robert's Rules Made Easy or something like that. So as long as you, all the answers to the test are in there, pretty much work for work. So just read that through and then you're good for the. The first step, now getting the advanced, sort of like, whatever it's called, the thing I don't have, that's a more complicated test, where you really have to know all the minutiae. It takes a lot of time, a lot of effort, but. I really wish more people knew about Robert's Rules of Order, 'cause it really can streamline a meeting. But when most people don't understand it, it's tough, so. - Then you end up with your stereotypical HOA meeting, everybody's yelling and speaking out of order and all that. - Oh, yeah. - No. - Robert's Rules. - No, it still works, so. I was a student body officer in college and we were debating something really tough and the vice president wanted to participate in the discussion, so he handed the gavel to me in my first week as the elected secretary of the student body and it was an epic fail. - Can I ask you a question? Let's see how long. - You're out of order. - Oh, I thought you were in recess. - We were, actually, sorry, should we get back into it? - Yeah. - I know. - Yeah. - Sorry. - Sorry, we are out of recess now, yeah. Okay, so we're going to agenda item C, BOE 24-050, receive a report, hold a discussion, and give staff direction regarding the processing of anonymous hotline reports related to alleged violations of the City of Denton Code of Ordinances, chapter two, article 11, ethics. - Yeah, so this is an issue, I'm sorry, that recently came up for the first time, we got to, the anonymous hotline is really intended for fraud, waste, and abuse complaints. It's managed by my office, so we received, and Scott's also one that can lead the process of those, but, and so is the HR director, but we received two anonymous hotline reports that appeared to be related to the ethics appointments, so I'm making you aware of those. We handled them by just notifying them that they had not submitted an administratively complete complaint, which is required, you have to be required to use the form, but we wanted to bring that up to y'all because it's kind of a gray area, an ordinance, exactly what should happen. In the mandate section, it says that there's a duty to report, but it says that you can basically absolve that duty by using the anonymous hotline, but it also says that I have no duty to actually investigate anything submitted that way, so it's a little unclear what should happen, so I brought a couple of potential options, but I wanted to get direction on future complaints from y'all if we receive any that way, what you would like to occur, if that makes sense. - So what is your pleasure, looking at these three options? - For clarification, you were able to retrieve a phone number and-- - No, so the system-- - Because it is an in, okay. - It's anonymous, so the system is essentially a case management system, so it allows you to respond within the system, but it required for the person to get that information, they have to log back in as a whole process for that, but I don't necessarily know if they have logged back in or not. - Okay, so you don't know if your direction was received by the person or not. - That's correct. - There's, okay. - So what's your pleasure, guys? - So are these still active, or have they expired? - They, at this point, they have been, they're considered abandoned, there's been 10 business days with no resubmission on the correct form. - Well this was, like I said, this is kind of new territory for all of us, so I just had some questions here. If there, were the, you said two complaints, was it two complaints from the same person or two different people on the same topic? - I do not know, they're anonymous. - You do not, okay. Were they on the same topic? - They were not on the same, they were not the same complaint. That makes sense. - So from what you have now, you're not really sure whether they were just alleged or actual violations. - Correct, only one of them's, I mean, I don't wanna get too into the actual complaints because-- - I'm not asking you to, I'm just, for future, your future word there, yeah. - Okay, yeah, they both referenced that ethics ordinance, one of them was a little more specific. - Well in the future, I think this is something that we maybe need to talk more about at some point. Because I would hate to see two separate pathways for staff members and citizens here. So either we put them together, you know, just-- - Well everybody can submit a complaint. The anonymous hotline is open to anybody. Staff members, city staff, and members of the public. Does that make sense? - Yeah, so members of the public are now able to submit anonymous? - Yes. - Always have been. - They always have been, yeah. - But then how do they, well-- - I just wanna say, I've always had a hard time with the anonymous part because it does not feel like due process. And I feel like if you're gonna make a complaint, you should say who you are. Is it possible, I don't think it's possible for a complaint to be administratively complete if it is anonymous, right? - That's correct, because the ordinance requires certain contents basically of the complaint, which I think includes their name and address, things like that. - So I think the only way, unless we change the requirements for an administratively complete complaint, then it has, we can't use the anonymous hotline. So I think the question is more of do we, should we allow for an anonymous ethics complaint to be submitted, and if that's the path we go, then we have to rewrite a huge part of the code and the rules and procedure or whatever the document is. - So maybe number three, recommend that city council remove the language about anonymity. Is that, that was-- - So to me, as far as what is the easiest path forward to make this work, that's the easiest path. And I don't think that there should be, I think that there is reason for having a requirement to have the complainant involved in the process. - Called to process, I think, yeah. - Right, and it's not, I mean, I think combining number one and number three there would be probably the best path, because there may be people that are submitting an ethics complaint in good faith and using that tool to do it and they just don't know. So if you have a canned response that says, this, thank you for your complaint, here is the correct method and forms to do that, I feel like we're kinda closing the loop on the complaint if that person is interested in that becoming, going into the actual ethics complaint process, I don't see any reason to ask you to forward any kind of report or complaint to us that's anonymous because we can't do anything with it. So I would rather not. - I think if the city council would just take the language out, that would solve the problem. - But where does that language appear? - It's in section-- - Yeah, that's gonna go straight to our amendment to our current code then. - That would be part of the run language. - It's in section 2-272A, duty to report under mandates. And it's like the last line that it says, it's essentially just saying if you know about a violation, you can report it anonymously and that fulfills your duty under the ordinance, but I don't know how, you guys could just say that you did that, but. - So could we, if we have a motion to add that, just striking that last line at that one section as part of our red line thing? - Drew, if you would like to give direction to move forward with the order to do a motion. - Do I hear a motion? - Well, while I am making things easier 100%, do we risk the protection, the anonymity, and this complaint process provides to maybe the more vulnerable public and-- - Great question, yeah. - It's a fine. - Yeah, that's an absolutely great question. It's something we're debating on and then a part of the-- - Right, that is a huge part of the conversation that we've had over the past year, is making it more accessible and available to all citizens. My concern is if we are having anonymous complaints, then the whole frivolousness of potential complaints becomes a whole different story, because then there is absolutely, you know, then there's-- - Could you skew it in the other direction? I think a better fix would be to look at this, removing the, there's one thing that we're, hopefully we'll talk about tonight, that I think would fix it, but-- - It seems like this language and the ordinance is to, is to kind of protect someone who is aware of a complaint and has a duty to enforce-- - And fears some kind of retribution. - Or more so than it is to allow for anonymous complaints by the public, because the, I mean, the code is written sets that we can't do anything with an anonymous complaint. I mean, there's not a pathway for that to ever get to a three member panel to review it. - Well, I think it would depend on the complaint. I think there are some complaints that could be acted upon even though it was anonymous, can't give you an example. - We don't have a, that's not allowed by the code. I mean, it's not so much that like whether or not the complaint is, should be actionable or if it's frivolous or whatever it is, we would never, the board members would never see or hear the complaint because the process requires Madison to review the complaint for administrative completeness, which would require the complainants to be named and all the, I mean that, unless we could, we could look at changing that process so that there is some pathway for an anonymous complaint that comes in through the hotline to be considered or to be exempt from that naming of the complainant, which is fine with me, but we would have to change the words. - I agree with that completely because what could happen theoretically is a staff member could be aware of something and file an anonymous complaint, really not hoping that it ever goes anywhere, but I'm off the hook, you know, because I'm with the West. - Right. - And so I think that could be a very harmful tool if we let that go without, you know, very completely. - When we drafted this policy or this ordinance, why didn't we include a conflicting provision that doesn't allow anonymous complaints but allows anonymous complaints? - That's a really great question. (laughing) - Welcome to the-- - So glad you're here. - One you can answer. - Yeah, we can't answer that, yeah. Nobody gets the answer to that. So do I hear a motion about how-- - This is a, we're not posted for action, so let's give staff directions of the motion. - So what recommendation? - I'm the Dustin, I like a combination of one and three, and I think that we should consider adding the complaint process back onto the agenda. - I like the idea, is there a way we could recommend an amendment to maybe a confidential complaint? - Yes. - So that, you know, you can make this confidentially, you know, it's not anonymous, we have to know who you are so we can look into it, but it is confidential. - Right. Because at the end of the day, none of us, it matters to none of us who that complainant is. - No, not at all. - It just, as long as it is administratively completed. - And I think that if it's confidential, the person should be able to state why they need the confidentiality. - So, complaints are considered confidential until they are posted on an agenda. - Right. - Don't know, I guess the complaint itself, you could redact from there, I don't know Scott, we'd have to look a couple of times. - Well, I would just want to look into Public Information Act, 'cause we can say, you know, call something confidential, but it might not actually be confidential under open records laws, and it could be a request by the respondent. - Maybe we should revisit this issue again at the next meeting, and give you some time to make some. - We can do, that's the direction, do research into confidentiality under the Open Records Act for these types of complaints. And then in the meantime, it sounds like we're, if we get another one, we'll go with step, or option one, right, in time, basically. - Mm-hmm. - What, on the general direction, or? - Yes, question. I was kind of on the fence between a couple of these, but one of the things I always wonder is where we are with other cities. I mean, any time we hit a new issue, I'm always wondering about other cities. Is this fraud, waste, and abuse hotline elsewhere in Madison, or is there anything similar that we can learn from our neighbors on this? - I know that most cities that have city auditors, or inspector generals, have a fraud, waste, and abuse hotline, but not all cities have city auditors. If that helps, so I can look into the ones, our general benchmark cities, if they have city auditors, if they have a fraud, waste, and abuse hotline, and if it's referenced at all in there. I mean, in most of the cities that we look at, the city auditor isn't involved in the process at all. It's usually the city secretary, or some other. - I think it probably has to do with the size of the city, too, because the bigger the cities, the more auditors and hotlines. - Yeah, usually larger cities. I could easily be convinced to just do away with fraud, waste, and abuse hotline all together, but I'd like to know more about what other cities have going on, or what they have. - That's not on the agenda. - Oh, yeah. - Yeah. - I mean-- - It's not today, though. - The fraud, waste, and abuse hotline is not under the discretion of the Board of Ethics. - Yeah. - If it's in the ordinance, you can make a recommendation about it. - Well, I made a recommendation. I know we don't have the authority to line it up. - I would like to hear what Scott can come up with in terms of investigating it, 'cause I know he has so little to do. - Can I add something? - Yes. - I think that we spend a bunch of time trying to pull the responsibilities, like all the burden-approved stuff out, with the intention of making it easier for a citizen to go through the process of making a complaint and having it heard. - We need something that bridges. - Right, and those recommendations were rejected by Council, so I don't know what that did to me. Knowing that, I would expect them to support removing that language from the ordinance. One, it doesn't allow for a complaint to be processed through that hotline, and two, because we can't do anything with it, so anyway, I don't know if that matters or not. - I like the third option for those reasons, and one of the main purposes of the Board of Ethics is transparency, and I think it is important that the person filing the complaint be known. There's so many ways it could be abused. - So can we put this on the agenda for next time to delve into it a little bit more? - You say, you mean come back with potentially some research on open ethics ability, or? - I mean, I think it's really important to, I mean, we can't do anything with the way it stands now, but at the same time, I think it is a way to protect vulnerable citizens who are just trying to do the right thing, so something that would bridge that gap would be good, and maybe a recommendation to put into the code. - I'm personally not even all that concerned necessarily about vulnerable citizens, but what about city employees that are actually, that might be privy to ethic complaints, but are then concerned about it? - They have their own code, which I think is a very good one, actually. - They have their own policy? - Yes, I would say that, but I think you're speaking about employees who are trying to take a complaint about city officials, right? - Could you look into, I think what I'd really like to look into, how could we have something that's confidential and still not violate the Open Records Act, if that's even a possible path? - But in general, I'd like to lean toward three. Does that make sense? - Yep. - Okay. So, are we ready to move on to the next item? - I believe we have direction. - Yes, okay. Okay, item D, BOE 24-051, receiver report, hold a discussion and give staff direction regarding ethical changes in the code of ordinances, Chapter 2, Article 11, Ethics, Section 2-269, Definitions, Section 2-272, Mandates, Section 2-273, Prohibition, Section 2-277, Board of Ethics, and Section 2-281, here it is. - So these were the changes that you presented last time. I attempted to incorporate them into the ordinance based on what was in that, so we can talk through them or? - Sure. So basically, there were just, there were four things that the citizens voted on in 2017 that were supposed to be in the ethical code. In studying it, when this came out to Charter Review recently, I realized most of the things that the citizens overwhelmingly voted for were not in our Code of Ethics. So this is an attempt to fix it. So, I was hoping we could use the city employee code 'cause I really like the way it's written, but in studying it more, I realized it has a lot of things that are specific to a place, and we can't just have a sign of that. So we're gonna have to go find my item. So, this first one would be... I'm sorry, I can't read it. Okay, read it now. So, definition of conflict of interest is a very narrow definition, and the wording, the, is that where the pending matter thing is? - This is straight from the employee ethics files. - Okay, okay. So, their code is much more broad, and it is written in a very great way because it explains some of these concepts, like what is conflict of interest? Our code does not, and the definitions are very narrow. There's some loopholes. So, I was hoping we could just take the part of the city employee thing that I like so much and put it in place of what is there. - Easier if I pulled up the employee ethics policy? Would that be easier? And it's basically this language. - Yeah, it's this language. So, what is problematic with the city code that we've had for a long time is it has pending matter in it, and then if you go back to the glossary, the definition in the glossary is even more narrow than how people generally frame it in law. And I'm not a lawyer, but I want something more broad. So, I like this language, if you'll take a look at it. So, this first part defines conflict of interest more broadly. The code that we have makes it just about business and what percentage of the business you own. Do you love before? - And for whatever it's for, this is kind of a mirror image of the model code itself. I mean, this is taking it all the way back to the Wexler model. So, this is a goal in my mind. - So, questions? - Under our definition of conflict, it says a conflict of interest is a situation in which personal and/or financial considerations actually have or may have the potential to influence, and then under two, the general rules, we say city officials shall have proactivity and transparent, or shall be proactive and transparent within a relationship that creates an actual potential conflict. But we don't define, because conflict of interest is defined as any potential, I don't think we need potential in there. - Oh, okay. - Leads to vagueness, in my opinion. - One of the essential differences in this and what we have now is that this is not only current, but this has a future aspect to it. It has now or in the future. Our current code is pending matter only. So, if it hasn't happened yet, so this is more futuristic and all-encompassing, encompassing than what our current code is. So, not only if-- - So, what would you think about taking potential out? Would that be okay? - Just out of numbers. - No, potential is-- - That's what I was-- - Well, so-- - You're talking about just removing this. - No, potential is a key word. - Well, potential is, a conflict of interest is already defined as having the potential to do this. So, there can't be a potential, potential. So, we're saying there's a potential to have a potential to have a conflict of interest. - I get that. - So, we're just removing a potential to cite it. 'Cause the definition already covers potential. So, it-- - But our current code does not. - No, no, no. - Yeah, our current code, I see. - No, no, I'm saying I'm agreeing with you. - So, just take it out, I agree. - No, I just-- - I said less words, I said that. - Yeah. This is all about pending matter versus future. - Yeah. Okay, so, do we need to take a vote on that or are we? - No. - No, because we're still just editing, right? - Okay. This second part is that B is where we get into consanguinity, which I don't care to have in the code because it's something that I think most people wouldn't understand. So, we are spelling out domestic partner, child, parent, member of the household. Rather than saying, what, three levels of consanguinity? Which, I understand that now because I've been adjudicated, but I don't think it's something that most people wouldn't understand, and I feel like citizens and council members and board members who are not lawyers should be able to read this, not have to. - So, you like B like this, not that word that you just said. - That's the way it is in the ARHP code. We did that, yeah. So, are there any things in this section that you see? - I just wanted to double check that member of household is defined, right, in the correct, yeah, I saw it. I just wanted to double check that. - Yeah, okay. - And then I believe domestic partners defined as well. - Okay. Any concerns with that section? Okay, we move on. - I think two looks good. I do have a question about three. And forgive me for not knowing what our disclosure form looks like yet. - This is my biggest concern about it. This is from the employee ethics policy. It doesn't necessarily make sense when you've just replaced any official because it's intended for employees. So, I think the disclosure, and we have, the current code has a disclosure and recusal process, which is the pending matter. It's basically, I'll see. This deliberation prohibited section that's crossed out, and that's where it talks about pending matter. But basically it's requiring, if there's a pending matter, you have to disclose and refuse. This is, that's what the pending matter is within our current process. But it does have a more specific definition of conflict of interest, which you discussed about these different percentages and things. And I can pull up what our abstention of, affidavit of abstention form looks like if you would like to. - Please, yeah, that's, there's an interesting topic that me and Scott fall under, and you, soon, very soon. And that is whenever there's potential conflict with something that our client may have, relative, I have a conflict of interest (mumbles) Okay, that seems okay on the other, right? So if I have a client that has an adverse position to something that we discussed on the board, I have to abstain from it, I can't. And then I can't also disclose that, 'cause it's attorney-client relationship, so as long as I can mark the other. And I know we have, what, two attorneys, I think, on our city council, so we've got attorneys throughout our city governance that are affected by this disclosure requirement. - So this is our current form. I think if we updated the conflict of interest section, this would need to be updated in some extent as well. - Okay. Okay, can we, so are we okay with that section, and ready to move on? - I'm sorry, I'm just pushing it, but I'm not trying to-- - I mean, there's parts of this-- - It still says employee-- - It needs to be cleaned up. Just clean it up to-- - Where it says, if a conflict is identified, the employee will be refused from any decision-making. Doesn't need to be city official. - Right, yeah. - Some of this, I agree, doesn't make a whole lot of sense if it's targeting about purchasing. - Well, both of those last, those two sentences refer to employment, right? - Would this be something we could refer to a committee, and then, you know, the three of us, or whatever, just go through and clean it, make it nice and pretty, so that we can actually take an affirmative vote on it? - I would love to do that. - That's a parliamentarian question. - I'll look into it, 'cause I don't know if y'all have the power to create a committee, the council might be able to create a committee for you, but I don't-- - Would it be too much to ask the staff to make a recommendation on how to clean that up? - I mean, my recommendation wouldn't be to use the current disclosure process. - Okay. - Which includes the pending matter definition, which can be updated, but the pending matter is essentially replacing this section right here, because, well, this would normally, in the employee policy, this is employees, right, so employees involved in purchase of goods are required to submit a disclosure. Basically, you're taking purchase of goods and making it pending matter, and then that's what our current section does, that's the disclosure requirement. It's this right here. You have a conflicting interest in a pending matter, you have to disclose it and recuse yourself. That's up here somewhere. Delivery is prohibited. So this, delivery is prohibited, disclosure required, those two sections are doing the same thing that this is doing. It's just one is for city officials currently. - My problem with pending matter is in very narrow ways defined in our glossary. But that language-- - We could change the definition. - That language doesn't appear in any other code nowhere. - No. - I mean, what's written there in the deliberation program in the section that's struck out would be perfect for this if we can either remove or replace pending matter, 'cause I think that's what you're most concerned with since it is right now, there is a pending matter before a council or whatever that I think where you're concerned with it. - So keep it that way, but just take out pending matter? - Yeah, I don't know if it needs to be taken out or replaced with something else. We're redefining the conflict of interest. - Pending matter, if a person has a current conflicting interest without any pending matter, must recuse themselves. Just take it out. - 'Cause it's almost like saying the same thing twice. - Well, pending matter narrows it so badly that you could abstain from a vote and the very next day you could do whatever's unethical, just the way it is defined in our code. And this has been pointed out to me by citizens, by voters not, so it's a pending matter language. - Adding this part, would make doing that what you're discussing a violation still? Is that it? - Okay. - If we have that definition of conflict of interest, take the language that's already in our ethics code for deliberations prohibited and replace conflicting interest in a pending matter with conflict of interest that we just redefined, it cleans that up and makes it so the language in this is correct for a city official and not for an employee. That's where that new section for disclosure and recusal, not following some of that, some of it doesn't apply. Some of it doesn't make sense, so it almost would make more sense to use that language and just replace conflicting interest in a pending matter with conflict of interest. - A conflict of interest. - Because that's defined. There's a new definition for that that I think is, like that's what we're trying to get to. Does that make sense? - I believe so. And I can bring that back to make it a little clearer. - That sounds good. - That would be awesome. - So Dustin, what you are proposing is to take the words pending matter out? - In a pending matter. - Yeah, I'm saying. - If you just take that out, it just, it's coming out of interest, yeah. - So you would take out? - I would take out regarding a pending matter. - Move that and then add a conflict of interest which is then redefined. - Yes. - Yes. - Okay. - I think that makes more sense and is the purpose of these modifications is to be able to apply that definition rather than the weird pending matter. - It would broaden the interest of the more clear. - Pending matter to expand on our list. - This would correct that. But the language and the deliberation prohibited, other than that conflicting interest in a pending matter part makes more sense for this, for city officials. - Take out four little words and I think it's fine. - Yeah, I think it's in there twice in those two sentences. But I think if we do that, then we get to what we're trying to get to, which is making this not a, like a moment in time. - The pending matter in that pending matter, it's fine. It broadens it. - I believe I, so update this section. So this would stay in, but we would update it to sort of have an pending matter in a conflicting interest. It would just be a conflict of interest. - Right. - I would say that the next paragraph for disclosure requires the same thing there. 'Cause it's the, I mean, it's the language we want in there, we just need to fix the conflicting interest in the pending matter thing. So it's not a-- - Yeah, there's nothing wrong with it otherwise. - Yeah. - So. - I have a question, just for clarity. So when we're drafting, so pending matter right now, it's telling, saying that you're accusing yourself from a situation, city officials are accusing themselves from a situation where they have decision-making authority. That's what pending matter is trying to cover. If we remove that and we replace it with this definition of conflict of interest, which says a situation in which personal or financial considerations actually have or may have the potential to influence, is there a specific type of, 'cause we're saying the city official has to recuse themselves in a conflict of interest, and conflict of interest is defined as a situation. (overlapping chatter) What situations are y'all thinking you want to be roped into that, 'cause I think it's kind of tough to imagine, there are lots of situations where someone might not be using their city official power, but might still fall under this definition. - But if they're not using their city official power, then it would be a conflict of interest. - Well, that's what I'm asking, is y'all are defining conflict of interest. I think that would broaden it enough that if somebody's doing something behind the scenes, that would be covered, and it should be. If you think about conflict of interest as advancing something that's gonna benefit you and not everybody else, then that's-- - Maybe I might be misunderstanding. I think maybe Scott is talking about people do things that could be considered a conflict of interest under the definition of benefiting yourself all the time. It's just in the, we're specifically trying to regulate in the context of using your official city board, is my understanding, so maybe we can add language around that, because I mean, like going and doing a business deal is something, but if it has nothing to do with city business, then we're not trying to regulate that. - Oh, no, absolutely not. - Is that what you're talking about, Scott? - Yeah. - Yeah. - You say conflict of interest is official city business? Instead of, you could maybe have instead of situation. - I guess I'm trying to suggest rewriting this, asking if that's, if that actually covers the things y'all are thinking, y'all are talking about, because this is pulled from the rules that govern us as employees, this employee ethics policy is really broad because we have a lot of rules about what we're allowed to do, both at and away from work. We can't have certain things like we have to have our secondary employment approved by, everyone on city council has a different job, and nobody who works, very few people who work for the city have a different job. The little things like that where it covers situations that might be challenging for a city council member or a board of ethics member. But I just, so, but again, if y'all are okay with it, then I understand, but I just, I think that y'all are here in taking away the specificity of any matter. - It sounds like if we added something to the end of that first sentence, so compromised professional judgment or actions in there, when acting in their capacity as a city official. - And deliberating city business, or? - And deliberating city business, I like that. - Something along those lines, just so that it's, so that our city code of ethics applied to city officials is applied to their actions when acting as a city official. - So Scott, your interpretation of pending matter means that it is a matter that is actually city business. - Believe it, it's a matter that's pending before the board that person's on. - And I think that our concern is the pending part, because we would like to cover, we would like to cover things that are not just immediately pending right now, but be broader in that sense. But I think, I would agree, we need to make sure that the language that we are including only is applicable to city business, rather than. - Yeah, I like what Dustin said about adding that, that at the end of the sentence to where it would be, so the conflict of interest arises when a person, when a personal and/or financial consideration actually influences, or have the potential to influence the judgment or action of an individual in their official capacity as a city official. - Or their deliberations. - Or their deliberations, yeah. - I like that too. Yeah, that would cover it. - Yeah. - But then it's really clear, it's not. - That's a good catch, Scott. That one little word there. - Yeah. - Update that, I'll go back and look at the tape. (laughing) I didn't catch all that, but. - Yeah. - So that seems like everybody's generally-- - Yeah, I think we're in agreement about that. - I think we're all gonna catch everybody. So, okay. So, move on. - So the proposal also included in adding this private interest section. Based on my review of comparing that to what's already in the ordinance, a lot of it is already covered, to some extent. - Awesome, maybe just take it out. - So I don't know, I think it depends on if you want it here or if you want to just keep what we've been using. Like representation of others, I think, is a little more specific to city officials versus. - You know, as long as we take pending matter out with being clear on the other stuff we talked about, I don't think some of the other stuff has to be changed. - I'm just gonna try it again, I don't think one-- - As long as we are clear about the conflict and the pending matter being gone and adding the deliberation and the acting in official capacity, I think the other stuff's fine. What I did not like was all the numbers and-- - Yeah, I think, well, from what I can tell, a lot of this is already covered in the ordinance. - Okay, so I would recommend not putting it, just take it out, okay? - You're talking about this-- - All those percentage things. - Yeah. - What are you talking about? Are you talking about this paragraph? - This four, private section. - Yeah, I don't recall I ever have any discussion about these sections that are already in the ordinance that cover most of that. I don't think there's ever been any real concerns about most of it. - Okay, so everybody in agreement? - Yes. - So strike. - Okay. Let's see what you think. And then, so a lot of the rest is what? This is the whole part. There was a question about if peace are still relevant. There's not, there wasn't a replacement, so I believe this is still relevant. - Yep. - This is only relevant to the four appointed employees, so I don't recommend anything like that either. Again, this is not something we've ever had an issue with, I don't believe. Some of this was, again, covered in the private interest, but it's already in here, basically. Okay, yeah, and then I think, so that covers these first three members. Okay, then there's the burden of proof discussion. There was a suggestion to remove the duty to report. And then this process with board members to potentially select the ethics board members, new ethics board members, so that's what this is doing. I don't know how legal that is, honestly, because of the way that the charter imbues power to the city council. - I was dreaming at that point. I had to let it go, yeah. - I thought I read somewhere that a person could apply to be a member of a board without being asked to. - You can't. - You can apply, but you would still need to be approved by the city council, correct. - You still have to be, you can apply, you can generally apply to be on any board, but you still have to be appointed by a council member. So I was not asked to apply. I applied and went on to the board, and then was nominated by-- - Let that go, are you guys okay with that? - Yes. - Before we get to the burden of proof, do we want to talk about the duty to report section? I mean, the suggestion was just to remove it, I think. So that's the discussion. I would not recommend that, but that's the discussion for you all right now. - Yeah, I don't think we should remove, I think the whole thing was revolved around that last sentence of the anonymous. - Let that go, aren't you guys okay with that? - Yeah, I think it should be just the last sentence. - Yeah, and we'll come back with research on that. - Yeah. - How it can confidential complaints line up with the open records act. - So now we're on to the burden of proof, I believe that's the last-- - The burden of proof, yeah. (paper rustling) - I will just say burden of proof is not placed on the complainant anywhere in any code I've ever written, either in the state or nationally. We do have an evidentiary hearing and the complaint has to be there. So don't know why we have to say it. I think it's just one more thing that has a chilling effect for people who might want to file a complaint or might have grounds to file a complaint. So I wanna hear what the rest of you think. - I agree that it's not necessary since evidentiary hearing implies they're gonna provide evidence and if they don't provide evidence then it would be baseless or frivolous. - So who has to establish the complaint? Or is it on the person complained of to establish their defense? - It would be on both sides actually. - The way it is right now, the complainant has to fill out a form and provide evidence and once that is administratively complete that means there is evidence that's clearly, whatever the violation is of our ordinance is called out in the complaint and there is some evidence that that did occur then that goes to a, once that is established it's complete. Then it goes to a three member panel and those three members look at that complaint and say, all right, well if this did occur this is potentially a violation of-- - If they determine it's actionable then the complainant has to show up. - Yeah, and the way-- - So it's implied but-- - The way it is set up right now is that at, once it gets past that point it goes to the entire board. The complainant and the respondent have to be there and because of this burden approved section it is almost like up to the complainant to act as a prosecutor. And our, in the past, since I've been on the board that has been a huge concern by every board member that, I mean if I'm, I'm not gonna submit a complaint if I'm just a citizen of Denton and I'm concerned about something because I'm not a lawyer and I don't wanna get in front of a panel of ethics members, a council member or a board member that I'm making a complaint about just because I think they violated the ethics ordinance like it's not my role to try them or to prosecute them. I've provided evidence and I've completed the process. It should now be up to the board to review that and then make a determination and it should be up to the respondent to say either I did not do this, here's evidence that I did not do this or explain to the board members why this is not a violation of ethics ordinance. So I think our intention has been we want to make it so that if as a private citizen who is not in politics or not an employee of the city or something like that, we wanna make it so that if they feel there is a violation, they can make a complaint and then as long as they've done their part of going through the process of making the complaint correctly and completely, they are no longer required to act as a prosecutor. That's, I mean, to me this has been like one of the things since I've been on the board that I've just been like this, this doesn't feel like this is a good way to-- - Shifts the focus to the complainants. - Yeah, and there will be times where we-- - I know David's been trying to say something. - No, that's what I don't wanna-- - I will throw out that we have worked on putting in a, putting in a section to the ordinance to address frivolous complaints because that, I think that some of this was to combat a bunch of frivolous complaints and we worked on some language so that now we can, we can deal with that a little bit differently than we have in the past where it's kinda like there's no team to that. - I think that that's a cheat. - Yeah, sorry. - No, no, no, no, I'm fine, I'm listening. No, we have discussed this at length more than once and this burden of proof, placing this on a citizen complaint. They don't have, we've discussed all the drawbacks here. They don't have the investigatory tools that they need to gather the evidence and present it and this is one of the greatest drawbacks to this ethics code. This is in my 15% toxic category that needs to be set aside and turn the entire investigation process back to the Board of Ethics and make that their responsibility to gather evidence and present it to the rest of the board but once the citizen has filed a complaint, done it properly, now, in some cities, they're not even required to attend the hearing. I'm okay with, you know, if you wanna require the complainant to attend the hearing, that's okay but that should end their responsibility once they have filed an adequate complaint, so. - And it's just the fact that it's silent and I've never read this anywhere else. - Well, except for good reason. - And I'm an ethics code nerd. - For good reason. I don't know who will. - I agree, for the most part. And again, I'm still just thinking like a lawyer here. - Well, it kinda makes it so that the citizen might feel like they have to file, they have to hire legal counsel to file a complaint and I think that's a lot to ask. - I agree that a citizen should not be required because they don't have the-- - Resources. - The resources, the knowledge, the expertise to establish a case. - Thank you. - But we also can't then shift the burden to the defendant or the person responding, so we cannot do that, I don't think. That seems-- - Well, they can be represented by counsel. - I think that's why the evidentiary hearing is so important, the evidentiary hearing kinda shifts the burden of proof onto the board, in a sense. - I say, I like that. - Yeah, so if we didn't have that evidentiary hearing, then I would be, I wouldn't wanna take this out, but I do wanna take it out, because at that point, the board kinda takes on that thing and we do have an attorney present while we're making that decision, so we're. - Could we shift the burden to us? I don't know that we could do that. - Well, I think it's better to-- - 'Cause then we become the prosecutor, right? That's not good. - Yeah, we're not the prosecutors. We're just waiting-- - People hearing, yeah. - Is that still following the quasi-judicial setting? - Yeah, when y'all are doing these hearings, that's when you're serving your quasi-judicial role, but y'all are, y'all are the adjudicators of being the, you can't bear the burden of proof, because you're having to assess the way that the burden of proof is met. - Yeah, I think-- - Somebody's gotta bear the burden of proof. - See, I've been wanting to shift that onto Madison. (audience laughs) - Or Joey. - I don't recommend that. (audience laughs) - No, but with all-- - I am also subject to the ethics one. - With all due respect, though, I always thought that there should be a neutral third party assessing the evidence and gathering the evidence. That has always been my, so. - I would say I am not a neutral third party, because I report to the city. - Yes, and that's-- - Yes. (audience laughs) - Mike. - Could we get rid of the last two sentences in there? That's soft, and that whole is required to appear. That's excessive, a complaint is a failure to testify, that is automatically your complaint's done. That's excessive, you know, like David's saying, once they establish it, however they establish it, whether it's through testimony or evidence or whatever, and it makes it through the evidentiary committee, then, yeah, it seems like their burden is good, and they meet that first sentence at that point, but those second two sentences-- - That is another area we have talked about. - Most ethics committees have the ability to compel testimony. If you're just a complainant, you have no power whatsoever putting together the facts. Your powers, other than getting documents or whatever. - And you're even limited there. You can't subpoena the document, you're so limited. - And the board has limited subpoena ability, right? - Yeah, you can always subpoena. - Does that come into play during the evidentiary? - Yes, it would be during the formal hearing, not during the preliminary hearing, but during the complaint. - It's a hard one, I don't know. - It is a hard one. - The way it is now, it's just totally chilling, in fact, on the complainants. - Are we, I guess we're not voting on all of this tonight, are we? I don't think we're voting on this. - We're not voting. - We're not voting. - So what we're doing is making recommendations that come into play. - Yeah, so ultimately, the process, the board has the authority to propose recommended amendments and the ordinance to the city council, and they make the ultimate decision on whether to accept those, adopt those amendments to be in the ordinance. - Yeah, I would, I would move just to move the, to remove the last two sentences, would be my, I don't think we can do away with the entire burden proof, 'cause then we end up with no evidence. - So, tell me, I'm just curious, how do you answer that it's not in any other code, anywhere, 'cause I've looked all over for it. I think David and I both have. If it's not a common thing, what does Weschler say about burden? I know you've read up on what burden of proof. - Well, it's up to the board of ethics. No, not the complainant. I mean, the burden of proof rests totally with the board, as they, you know, discuss or propose a hearing. If nothing else, they have, you know, the legal requirements to gather bad evidence cannot rest on the complainant alone. - So, technically, we could say, we don't have enough information to make this decision, and that. - What about removing the burden of proof and putting a duty to investigate? - Getting rid of the burden of proof and doing a duty to investigate onto the board. - Rather than investigate, I'd rather see the way the evidence presented. - Well, then, but who has the burden to present evidence? - That's implied in the language that would they fill out. - The burden to present evidence is on the complainant in the complaint submission. So, they have to provide evidence that there wasn't. - Provide the evidence of where they're coming from with their complaint. It's just a matter of doing slightly different words to make it less. - And most of the time, most of the time when we've had hearings, there hasn't been enough evidence. - Yeah, there's not enough evidence. - And that comes out in the evidence jury hearing. A lot of these complaints are filed when people are in a pretty emotional state and they're mad, and so they fire off something. I mean, what I've noticed, and then we have to have a hearing, and it's pretty obvious within just a few minutes that there's really nothing to it. - So, but if we remove this, there's now not that little voice in your head that says, "Hey, before you submit this, "are you gonna be able to prove it?" Now that it is a chilling effect, but is it a rightful chilling effect to say-- - But there's wording of evidence that you have to provide evidence. - The complainant has to show what part of the code it violates, 'cause-- - I'm glad they believe there's been an ethical violation. - I've had people call me and I'm like, that's not a violation of our code. Don't file it, don't file a complaint. - This is the form. - Provide a statement of facts constituting the violation, that would be the-- - But we're not saying much softer language. - Just softening the language. - Yeah. - Well, and that's because this is going to the public as to where our ordinance is us, right? It's telling us who has the burden. It's telling us what to do, not telling the public what to do. It's telling them what our requirements and obligations are, so they're going to know what to expect when they come in. But this is to us, so that that way we can't just say, ah, you know what, today the burden is on you, defendant. You have to prove your innocence. You know, it mandates, it prevents us from acting arbitrarily. - Well, sure, we don't want to do that. - Just replace brutal proof with provide evidence. Why you leave an ethical, epic code that's been violated. - Yeah, we could rewrite, write it like that, and it just says, you know, the complaint must, you know, provide sufficient facts and evidence to establish the violation, and we can do that. - We don't even have to go to evidence, we just have to. - Evidence is an aggressive word. - Right, we all, as long as we're factual statements. And I think the complainant needs to say, how does it violate the code? - Yeah. - You know, what section are we looking at? What's the wording? I think that's fair, because, otherwise you're gonna get these really emotional complaints, and that being, I mean, there was one we had that was really embarrassing, and I felt badly for the person who got complained against, and, you know, just, you know, you have to take a little, you have to take a step back and breathe, and, you know, how's it violate the code? - So, amend to just say, you know, it's on the complainant to provide facts showing the violation. - Yeah, that's rich, that's epic. So, you got it. - I know this is, the complainant has the obligation to provide facts. - Do we have to call it burdened or approved? - No. - I was just thinking, what could do, establishment of, no, establishing the violation? I mean, yeah, well, I don't know, softened language, but. - Definitely softer language would be fine. I would really appreciate that. David? - Question for the Chair, or Madison. My memory, I apologize. Have we not already agreed, six months or a year ago, that this burden of proof should be on the delete list for our code? - Yes, that is why we have a red line, but at the same time, we're also trying to make this more powerful for the city council. - Okay, so we're not debating whether or not it's-- - No. - Okay. - This red line was presented to the city council and they rejected it. - Yeah, right. - This, exactly. So, along with trying to update it and make it more powerful. - Along with pretty much everything else. - Well, I don't know when the time is on our current agenda tonight then, but I'm curious what the next, I don't wanna get political here, but will this be on a city agenda before the next election? That issue right there. - That was one reason I pushed so hard to have a meeting tonight. - Well, I hate, I mean, I don't wanna bring this up unless it's at the appropriate time, but I'd like to know when the city council is gonna see this. - I don't have it, you don't have a proposal yet, so I don't have it on an agenda. If you would like me to try to get it on a work session agenda, I can do so before the next election. - We were told at the last meeting when it kind of blew up, basically, that bring in something better. And this is hard to hear. - Well, do we need to make a motion then to get this on the agenda sometime soon? Or at least before the next election? Because this council's gonna flip today, and this may not survive, so, I mean, I'm sorry. - Well, the part that I am really unhappy about is that we had to wait five months. And I think that was a personal decision. You know, I do not wanna wait five months again. - So can we just a minute to say responsibility to establish facts. - Or present facts. - Or present facts. Let's do established. Present insinuates that they're gonna be required to come to the hearing. - They are required to come. - Are we, you don't wanna leave that in there? - Yeah, we have to. We've discussed that a lot. - So requirement to establish or to present facts. - That are tied to the code. - And then that would be the title. - Colon, it's on the complaint to provide facts, sufficient facts, showing a violation of the code. That seems-- - I like that. - Soft enough to-- - Yeah. - Not chill. - Yeah, yeah, I like that. - But still strong enough that, you know, in the future, nobody's gonna be able to-- - They can't just make up any old thing, they have to show some facts. - Thinking about it, I just... - So let's put something like that in, and we'll talk about it at the next meeting, and at that point, I guess what we can do. - Yeah, I'll just leave it. - Okay. This is the last item, right? - No. (laughing) - I think we didn't just have a future agenda meeting. - You wrote down what-- - Yeah. - I did, and it's recorded. - So, so-- - For my own, can you-- - I believe it would be like, responsibility to present facts, Homeland, it is the responsibility of the complainant to present sufficient facts to establish a violation of the ordinance, something like that, and then we would still have this language, is what I believe-- - Right. - The direction it was? To require them to still testify at the hearing, and then do you still want it to be an automatic dismissal if they do not testify? - Yeah, I guess it's not really a requirement if it's not. - Well, that's another whole issue, honestly. - I don't think it should be, but-- - I don't think it should be either, but-- - It may get struck down by-- - I don't think it'll fly. But I do think that softer language might fly, and that would be... Yeah. So I like what we've talked about tonight. I think this concludes this part of the discussion. So can we move on? Are you guys okay moving on? - Yes. - Yeah. - I do have one point of inquiry. I'm guessing this is gonna be directed to Scott, but is there a motion or something we can file to put this on the city council's docket, I don't know. - No, he'll have the power to put something on the agenda, but there's also no language yet. So I think the idea is, the way it's been done, is y'all have made recommendations. Madison will draft language that hopefully accomplishes everything y'all have talked about. We'll bring it back. I'll help advise a little bit to make sure it's legally sound. It'll come back, and then you'll approve that language, or maybe you might have minor, just wordsmithing changes that you wanna make, but at that point, you'll have something you can actually send to council. - My hope is that we can have this mostly firmed up at our January meeting, and then say, okay, we're ready to. - I think we can maybe shoot for April. - So timeline-wise, the way it usually works, we have a bunch of sessions like this. We make changes to the code. And then we make one big motion. We go through them all again. We wanna make one big motion so that Madison can get us on the-- - Okay. - On the-- - And we go through, basically, this is how they will be presented to the city council. I don't know if you're familiar with the charter process, but it's kind of similar, a little bit, in where we were like, this is the proposal, this is the next proposal, so that they can consider them separately. - Okay. - Perfect. - So I know that council members do have the ability to fast-track something. - I'm not a council member, but-- (laughs) - I know they do. We will have to chat some more. Okay, so we're on to the last item. EBOE24-052, Receiver of a Portable Discussion that Gives Stat Direction Regarding Future Meeting Topics. - So one of the things, yeah, so one of the things that you've already talked about as the language for, or that we talked about newly tonight was the Open Meetings Act and on this confidential complaint process. You brought that up tonight. - Yes. - And then these are other things that we have discussed before. Council did give direction to the board to try to provide guidance on interactions with petitioners. I was brought up and there was not necessarily a clear timeline on that that they gave direction on. - I would just like to ask that we put these proposed changes at the top of the agenda. - In case we run out of time. - Yeah, and I don't care what follows after that, but I want to get this done as quickly as we can because I know how they delay things. - What is the, what is the bullet you want under a new item? What is council asking? - I don't have a lot of more clear direction on it than this. So the city council has a process, the two minute pitch process where they can propose items to each other basically one of the council members proposed basically asking the board of ethics to provide guidance on how they should interact with other, it's like petitioners, applicants, developers. And I can bring back the exact language in that proposal that they gave direction to go forward with but that is about the extent of the direction included. - So maybe we could make that our next item to look at. - Sounds like that. That should probably be a question in an advisory opinion. If they can request an advisory opinion. I don't know how we're going to provide, can't just provide guidance to them on how they can act. I mean, that's my, that would be my response to that. If they have a specific request-- - Tell us more, please. - We can ask for an advisory opinion because there's no mechanism for us to give them guidance on anything. We can provide recommendations for changing the ordinance that they get to vote on and approve but other than our advisory opinions, there's not a way for us to give them guidance. - I would agree. It seems like it's outside of our scope. - And then the proposed changes from the, we just discussed it today and said that's gone, so. I would say just start working down the list but I feel fairly confident that in the next meeting, we're going to spend the whole time talking about these changes that we've gone over tonight and to me, that's enough. - Oh, we had discussed some of the advisory opinion. That was on the research. So we had a question about how other cities, what requirements they have around the advisory opinion process but we haven't done that research yet but that was the request to look into that and present it to the board. - All of these are things I want to discuss but I think this bigger package is the thing that we need to get taken care of and then we'll get on to other things. - So where this, for next time we'll do, we'll have the conflict of interest and burden of food proposal which will be different. It won't be burden of food anymore but I'll bring back language we all will discuss and try to break them up into different proposals if necessary and then maybe in February, we can hopefully have, this is the packet that we're going to send to them and then either March or a guy can ask if we can get out on the work session in March or April. - March. - Please. - Question for Madison. Are we at the point where anything that we ultimately recommend can go to the agenda or is it going to end up in one of their work sessions again? - Process that we historically followed is it goes to work session first so that they can provide direction on adoption or not. - So even the burden of proof, we'll go back to a work session? - Yes. - So our next meeting is Monday, January 6th. - At that meeting, we'll also discuss the schedule for the rest of the calendar year and then we'll have elections as well. - Okay, that should be an inch at night. - Yes, it's on there. - All right. - All right. - Okay, so it is now 7.23 p.m. I thank all of you for being here tonight so close to the holidays and we are adjourned. - Thank you. - Thank you.