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.
>> 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.
- 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.
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.
- 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.