Today is Monday January 6, 2025. It is 6 p.m. This is the Board of Ethics meeting
and we are going to look at item one on the agenda presentation from members of
the public and we have one presentation from Charles Lee.
So I believe you have three minutes so if you will state your name and address.
Good evening. My name is Charles Lee. I live on Elm Street. I just want to say
the last time I was here I heard a lot of disturbing things about
process and I just want to understand that even though this might be just a
judicial board and I think Board of Ethics, the Constitution is still full
force of effect. I had a little discussion with you people before that
you all took up to the Constitution and I heard statements about and I think you
have a fundamental misunderstanding of the Constitution. This system is a
supremacy clause. It's the law of the land so anywhere you go in this country
you see the flag outside it's you know the Constitution is in effect and when
you have these own complaintants following these complaints and then you
have the accused, the defendant. I just want to say that the defendant has the
presumption of innocence. That person is innocent until the complaintant actually
has actual evidence that they have the burden to prove to prove their case. They
have to prove that whoever they're accusing actually is guilty and there is
a, I'm not an entity, I understand that, but eventually at a certain point they
have to come up in front of everybody in the public. They've got to look the
accused or the defendant or whoever they're accusing did any kind of wrongdoing.
They've got to look them in the eye and tell them they did it publicly and that's our
constitutional system. It hasn't changed and if you start deviating that process
you're just setting up the town for lawsuits and as a taxpayer I'm tired of
paying the town's lawsuits. If you go to court that's the way it's going to be and it hasn't
changed and I highly suggest that people start looking into their fourth, fifth, and
sixth amendments because they haven't changed. It's been going off for this
country that way for over 200 years now and I would like to keep it going and
that's all I have to say. Have a nice night. Thank you very much Mr. Booth.
Okay, item two, items for consideration. Item A, BOE 25-002. Receive
nominations and hold an election of a chair and vice chair.
Can you be re-elected? Is that something that you can be re-elected? Yes. Okay well
I'm new to this committee. I don't know the job you've done but I do believe in
experience and so I would recommend that you be chairing it.
I'll second that. Do I hear any other nominations? Make sure we're being fair.
I do want to do it. So all in favor raise your hand. So it's unanimous. Okay now
nominations for vice chair. I'd like to nominate Dustin for vice chair. I would
second that. Okay any other nominations for Dustin?
Not for Dustin. For vice chair. For vice. Okay so, and you're okay with doing it?
No. Okay. So all in favor raise your hands. Okay so I will continue as chair. Does
someone need a vice chair? Yes. Yeah I abstain from the vice chair. Okay we have
one abstention. Sorry. So I want to make sure I got it correct. Okay item B, BOE 25-003. Hold the
discussion and consider an adoption of the 2025 meeting schedule. May I first
just ask last week Diane was not able to be here and I would like to have her
introduce herself and maybe have each of you. Well I'll try to keep it short. It's been a
long career but I was a college coach. I was also the assistant athletic
director for 17 years for Stephen F. Austin and I'm an author. I am in five Hall of
Thames because I think they thought I was going to die so they all put me in it.
And I currently am the national promotions director for three and two
which is a clothing line and in baseball and softball and I was the national
promotions director for the Shutt Sports if you like football. Most of the
football helmets were made by Shutt Sports and I was also in the baseball
softball. During my time which is the most important thing for me to tell you
during my time with my organization I was the author of the ethics code that
has 9,000 members. I loved ethics. I wanted to be on this committee for a
long time. It's very important for me that the standards are upheld and that
we do the right thing the best we can. So I'm really happy to be here. I'm sorry I
missed last week but I I've watched you and I'm going to be different because
I'm more, I'm not a lawyer, I'm not a council person. I had I've come from a
different area and when I speak it's from my heart and what I believe in and I
won't bear from that. So I just want to thank you for allowing me to be on this
committee. We're glad to have you back. Welcome. Thank you. I guess you heard the introductions we all made to each other. Ma'am? You heard the
introductions that we made to each other. Oh yeah, yeah, yeah, yeah, yeah. Good. Yeah.
Perfect. So. Okay. Thank you. If you have any questions for me I'd be more happy to. Yeah.
You have an impressive background. Thank you. Thank you.
So we'll move on to item B-BOE25-03, hold a discussion and consider
adoption of the 2025 meeting schedule. So there's two possibilities. Yeah, so
historically we met on the first Monday of each month. Some members have raised
concerns that that doesn't, that could be easier if we just change to the second
Monday. So I presented both the options. That would also allow us to meet during
months that we've previously not been able to meet, if we would like to. So on the
right side of the screen is the second Monday of every month. On the left side
is the first Monday. What this is going to look like. I staff recommends continuing to meet at
530 if possible. That still works for everybody, but it's really up to y'all.
So what's your pleasure? I do know, I hate to be new. I want to be at the
meetings. It's very important to me. On March the 2nd through the 17th, I am in
charge of an event going on in Florida. And I'm willing to work, go earlier or
later, but that's the only day that's conflicting with me. Rest of the year
should be a piece of cake, but I do have that conflict and I don't want to miss
the meetings if you can agree that. So if you have to miss a meeting, you
have to fill out a form to say that you're going to miss a meeting. And I
think you're allowed to miss it during your term, is that? I do not remember. It's
two during your term or two a year. I think it's a year. And I think for work or
something is excused and that doesn't count towards that. Yeah, vacation does
not, but that's clearly work. So I kind of like the second, the second week that
would be my preference because I hated it last summer when we weren't able to
meet. We had stuff that we felt like we needed to be doing. So. I'm one of, I'm
one of the ones that asked to move it to the SEC just because I have, I have other
responsibilities that are on the first Monday that I have no, I have absolutely
no control over when those meetings are happening. So it would make it a little
bit easier for me to be here. And I do like, I do like the fact, just like you
said, that if we move to the second, the second Monday, then we'll have, we're not
going to run into all of those holidays that have prevented us from meeting. So if
there are things to be discussed, we can. So is there anybody really wanting the
first Monday of the month? Okay. So you want, do we need to make a motion for that?
Well, I think we have to adopt it technically. So we do need a motion. Okay. And I mean to
remember, Baker's plan, if we wanted to change the March date, we could do that
easily right now so that she, you know, she knows she could attend. But that's up to
y'all as well. Well, one was for my family and I know that's not excused. The other
one is business. And I know that's not excused. But I don't want to get to a
situation, I'm just starting and I'm getting kicked off. So. Yeah, we're not going to get kicked off here. Yeah. So. But I think
we've all run into that issue, right? Where. I think that's unlikely to happen. Yeah. And it's the same
thing. It's like I know that I will not be here on July 14th if we choose to meet
in July. So. But. But it's a work thing. Yeah. I think. I'd say just go with that
schedule as is. And the 530 is not a better option. Right. So do I hear a motion? You're going with
the second one? Yes. I move. Second option. Okay. Second. I second that. Andrea seconded. So all in favor?
Aye. It's unanimous. Okay. So. Item C. BOE 25-004. Consider approval of minutes for December 16th, 2024. Does anybody see any
changes that need to occur? There was no voting, but I can see any subject during those minutes. Is that correct? No, we're just considering all those
options. Okay. There was a vote on the minutes, but that was the online. Right. Well, on the last meeting. Okay. I'll move to adopt. Andrea moved to adopt the minutes from
December 16th. I'll second. Public seconded. So all in favor? Aye. It's unanimous. Okay. Item D. BOE 25-006. Receive a report, hold a
discussion, and give staff direction regarding potential changes to the City of Denton Code of Ordinances, Chapter 2, Article 11, Section 2-269,
definition Section 2-277, Board of Ethics in Section 2-281, Hearings. So. Yes. Based on the discussion last time, I revised some of the
language that we had presented, and then I got some feedback from the city attorney's office on that. So I can pull up the red lines. That kind of shows
everything. But based on discussion with the city attorney's office, we recommend keeping the thresholds in there and maybe combining that a little bit so that
there's clear guidelines, and then cleaning up some of the two sections a little bit after this. So we can discuss that a little further. So one of the things that this would do, it
removes the definition of pending matter, it redefines relative, and then removes the definition of conflicting interest, and creates a definition of conflict of
interest. So this is kind of the language that came up with and then gave to Scott and then got comments back on that, but we didn't quite make it in time to
readjust that. So essentially, this is what you saw last time, except a couple of changes. I think after discussing with the city attorney's office, we might combine these two
paragraphs since they're very similar, and a little just because it's just kind of, it's not necessary. But then we do recommend keeping these thresholds so that there is some
clear guidance on what absolutely is a conflict of interest, as well as this additional general guidance. Does that make sense? It's kind of like what's going on in the gifts
section where we have this general violation, but then the specific information as well. So is everybody following? Any questions? Any discussion? Can your, the section that you said
would get added back in with the thresholds? It's that section. Right, so it wouldn't necessarily have this definition piece, but we incorporate these specific
thresholds back in so that there are clear definitions of absolutely it's a violation if you are voting on something or deliberating on something where it fits your
employers, right? So creating kind of those very clear guidelines, as well as having, giving a little more wiggle room for the board to interpret these general rules about
financial or personal interests that might be impacted different than a substantial segment of the city's population. Does that make more sense? And then this is how we would redefine relative as
well, which is up here. So, discussion? I think we kind of went over it. Right, it's very similar. The only big kind of thing that didn't get changed in this version that we would
change in the next version that we present to you in February is that those specific thresholds would be reincorporated. There are any ordinance currently, so we just keep some of that information.
Okay. Because we want to make sure that we're giving clear guidelines so that there's no issues with due process. Just a general thought. This change right here really pretty much aligns us with the other cities
that have a code based on the model code and really fixes a lot of the problems that we've had in my opinion. This is one of the two things I think is really important. Yeah, so I'm, you know, there might be a word or two, and we've kind of gotten
down that word tweaking trail. But these are concepts, again. This is something that we need to kind of model ourselves after understanding that the model code has years and many, many, many people smarter than us that have gone through all of this exactly.
So I'm very much in favor, again, there might be a word or two here and there, but I think that's the general thrust of where we're heading, and I'm very much in favor of where we're at with the conflict change.
It would broaden the definition. The one we have had is very narrow. You would have to thread the needle so tightly that you probably, I can't see that anything would ever be. Yeah. And the other part that I don't like about the old one was that there's a go around, and that you can, as long as you vote on whatever you're going to do first, you can do whatever you want to.
Afterwards, and this, you know, basically a conflict of interest is something that benefits you and doesn't benefit everybody else on the council, or everybody else in the city, actually. So I like this broader definition, because if it's only benefiting you, that's good.
And not only that, this fixes one of the problems that we had with the original, in my opinion, where it adds or may have the potential. This is kind of future-oriented as well. So it's not just the pending matters that are before, but this opens the door to the possibility that something may be slipping through into the future that would be missed with that older language.
So this is broader, more encompassing of a general ethics code. So this future, or may have the potential, to me is a key to this improvement.
What is a household member? Any partner, a spouse, a child, a parent? So it's not somebody in your house that runs your room?
The definition is anyone whose primary residence is the city official's home, including non-relatives who are not renters. So not a renter.
Can I ask a question regarding, because we have, the way it's redlined right now, the way we're talking about the specific thresholds, right?
There, because we have a definition of conflict of interest. So do you envision making these specific thresholds that we had deliberated a very long time ago to be more in the section of disclosure requirements?
Like right above it? Or how will we, because I like the idea of having, like you explained, that it would keep some of those very specifics that council members have kind of asked for.
To keep them in, I think what we should look at is how we want to incorporate them, because I think it would be very confusing if we have a definition of conflict of interest
that is a broad definition above, under section one, and then we'll have the same kind of definition of conflict of interest.
So I personally, to me it would make sense to incorporate those specific thresholds under those disclosure requirements, because then it is very straightforward to say,
if you are, if you're a council member and you have ownership of 5%, then you need to reduce yourself from that deliberation.
Okay. Yeah, I'm obviously all working with the City of China's office on trying to make the language fit while keeping those in there.
Okay. Do we, being nit-picky again here, under A1, so we're definition of conflict of interest, I like the future language as well.
Do we need to add in there that something is known that it could have a future impact, right, so may have an impact.
What if I don't know about the potential impact, right, so I don't know, I feel like we need to narrow down that future a little bit to like,
it's not a conflict of interest if you don't know that this is going to happen or that this could benefit you in the future.
Okay, I like the word foreseeable. That may or may foreseeably have the potential to influence, yeah.
Potentially, yeah. Yeah, yeah, just something that...
Yeah, that's right, yeah, I mean something might be a conflict in a year, but you wouldn't know about it when you vote.
Makes sense.
Okay, I've noted that down.
Okay, do we need to vote on each of these items? Okay, okay, okay, so we're still...
Working through the language.
Hammering, okay.
And then, so any other on this conflict of interest part, because there's also the burden of proof section.
In the mandate section before that, paragraphs C under business disclosures, we still have pending matter in there.
Oh, okay.
So we may need to clean that up somehow, because it's not defined, and actually it's C and D, the business disclosures and disclosure process.
And then under the last sentence of the business disclosure paragraph, it says...
Basically says that you can still deliberate absent of conflicting interest, maybe just change that to conflict of interest as described below or something.
Yeah, yeah, I'm sorry, I'll make sure that gets updated to make it consistent through that section as well.
I think that's the only place I saw that's... I may have missed it somewhere else, but that's the only place that I saw that those are still in the body of the text, but we're striking that from the definition.
Thanks, Justin, that's the whole thing is you want to catch.
And it may make sense once you add back in those thresholds, but however we do that, it needs to be... I don't want it to look like...
I think we would be tying our hands a little bit if we make it so that it suggests that those are the conflicts of interest only. I think our intent is not that, but I could imagine someone saying, well, there's a list here and this doesn't fall under the list, and I'm sure we can make that work. I don't know how to do that.
That's why I suggested to put it under disclosure requirements, because these thresholds are very definite, right? So if you fall into that category, then you have to disclose.
Whereas conflict of interest is more... we are trying to go for more overarching and having... and prompting a discussion of whether that does make up a conflict of interest or not. I mean, that's... I think that is what we are looking for, right?
We need to change in three, deliberation prohibited. So we say it shall be a violation. So red line, participate in deliberations involving a current conflict of interest. I think we talked about this last time. The word "current" takes away the future. So since conflict of interest is already defined as a current or foreseeable future...
Yes, we can just take "current" out of the second sentence and third sentence. No, fourth. Second, fourth.
I kind of like your idea, because my conflict of interest might be different than your conflict of interest.
Although it will be. And so if it's spelled out that everybody knows what's going on, then there's no surprise at the end of what to have to disclose or not.
I think less words are less things to get hung up on, too.
I have a question, if I may. So the way this is, we have that A1 is definition of conflict of interest. A2, general rules. City officials shall avoid actions or conduct in their official capacity that they know or should know is likely to impact the personal or financial interests of the following.
That A2 doesn't reference conflict of interest at all currently. It just kind of creates a new list of connections that it asks about.
Three, deliberation prohibited. Four, disclosure required. Those are both mandates. And so, I guess a couple questions. One is, is 2 intended to be a different thing than a conflict of interest, or are we accidentally defining conflict of interest twice by having A1 and A2?
And then, is 2 a prohibition that would arguably have some kind of ramification under the ethics code, or is it aspirational? I think it behooves you to try to be as specific as possible in what, A, when does a conflict of interest arise, and B, when does that conflict of interest give rise to a penalty?
And I think it's just really important that y'all, it's very clear to anybody reading this, that their conduct, or that there is a conflict of interest when there is one. That there's no question to them, is there or is there not?
So vague definitions can be problematic in that. And then also, okay, I've identified that there's a conflict of interest. Did I do anything wrong, or should I refrain from some kind of conduct? That really needs to be clear as well. And so, I think that's the due process conversation we're having.
Yeah, I hear what you're saying, so what would you recommend to address that take out, or just be specific on this?
I mean, that's as far as I'm not y'all, I'm not writing this ordinance, but I just want to say that I know y'all want to have flexibility and just balancing. It's up to y'all to decide, I think, whether you balance that effectively, but just that that should be a major consideration in that decision.
I think where it's not real clear in the way it's written right now is that paragraph one with the definition of conflict of interest, it doesn't refer to paragraph two where the relationships are hard to describe.
So, the first sentence of the conflict of interest definition says personal and/or financial considerations, but that doesn't just include the city official, it includes all these relationships that are defined in paragraph two.
I know Madison said something about combining those two after talking to you, and I don't know if that is what you're getting at here, but I think we're saying that there is a conflict of interest based on these relationships where there is a financial interest involved, a personal or financial consideration for the city official where all these people are defined below.
I don't know how to rewrite that or combine those two, but I think that kind of cleans that up a little bit.
Would it help to make number two number one and number one number two to start out with the general rules and then go to definition of conflict of interest?
I think we need to put 2A through G under one, and we can almost move that second sentence of one to the start of number two.
Conflict of interest or challenging organizational concerns, blah, blah, blah, can go under general rules because we're generally saying, hey, these are, you know, they're challenging, okay? City officials shall avoid conflicts of interest as defined above in one, A through G.
Yeah, I like that, yeah. And that shortens the definition, that is the definition, and then the considerations are under number two.
Yeah, I like that too.
I also have a problem with the time period. The way I'm reading it, it's saying that if there's a conflict of interest and you have to report, you have all calendar year of last year up to your conflict.
So we're giving them 12 months, maybe 13 months, 14 months to report. I mean, are we kidding? I mean, why are we giving them that much? If there's a conflict of interest, they should have a certain period in which they have to report.
They're not stupid. And, you know, and we want to bite it in the butt because if they have a conflict of interest in, let's say, January 2nd, and they don't report until December 1st, they've had the whole year, they have all kinds of things going on.
I'm curious on why we're giving them that time limit.
Are you referring to Section D? Referring down here for, yeah, right there. I'm just wondering why we're giving them so much time to report this issue.
I mean, that could be fixed by saying, you know, easy, I'm making this up, but 90 days from the conflict of interest or, you know, 30 days from conflict of interest. I just think we're allowing too much time to go on before we're taking care of the problem.
I see your point.
Well, that's an easy fix, I mean, just put a time limit in there.
You could say 60 days from the time the conflict was, you know, or something like that.
90 days.
90 days, whatever.
My only concern is that some disclosures do not become immediately available, I mean apparent.
Stuff develops and people talk and, oh yeah, that should have been. So, I don't know about a year, but a really, really narrow period.
Yeah, you know, it could be, I'm okay with, you know, shortening it, or making a longer, I don't think we should give them a year and a half or a year and a half to figure out what we have to do.
Six months, would that be more of a, I don't really understand what this sentence is telling, is that what it's saying, Scott, do you have an opinion?
I read, well, I get what Ms. Baker's saying, but I don't think it addresses that.
I mean, this is saying that you need to disclose any conflict that happened during the previous year and up to the date of the deliberation.
What would happen if we just took that out, took that sentence out?
See, I read it as an expiration date, so your disclosure is good for one year after the date you disclosed it and it's come up to you.
That's kind of how I'm reading it.
That just needs to be said more clearly.
Because I would say what you're talking about, it doesn't have a time limit at all, it just says you have to do it, it doesn't say by when, because that's how I would read this sentence.
And then, yes, it seems, but I would agree with what you're saying, if you find that it's good for a year, basically.
I think a disclosure is good for one calendar year from the date of disclosure.
Yeah, that's nice.
But that doesn't answer the question.
Right.
They're being adaptive.
Well, I mean, I think it's a little clearer, but there's four people here who tried to figure out what it meant.
So it wasn't clear enough, so number one.
But I do like that, because once you've made that disclosure, why do you have to keep making it?
I mean, I think a year is a little long, but that's just me.
Six months, maybe?
It's not something that's going to be long.
But I'm just saying, I think it's too long.
I do know that sometimes in council, they revisit things.
I know some, especially we do a lot of business with UNT, some council members have been employed by UNT and have had to disclose that, have practiced, basically, it went so they were accused every time disclosing it.
Yeah.
That's a bit of practice, but this maybe reads that they only needed to do that once.
That's how I rate it. It's like, if you have a conflict of interest, you disclose it, then if it comes up again the next month, you don't have to disclose it again, because it's on the record that you...
And then you'd have to recuse.
Yeah, the previous paragraph would require them to recuse themselves from any deliberation.
So what about a paragraph that just reads, "Disclosures under this subsection must be made within 30 days of the conflict of interest arising and shall remain valid for the period covering one calendar year."
For one calendar year from the disclosure? From the date of disclosure or the date the conflict of interest is resolved, whichever occurs first.
That adds the deadline to disclose. You don't need six months to disclose. You need 30 minutes, but we'll give 30 days.
And then that disclosure will last you for a year, at which point you need to renew it if the conflict has not been resolved.
And then if it resolves three days after you make the disclosure, good, then the disclosure expires at that time.
And then the deadline to again disclose within 30 days, and it stays valid for 12 months?
You have 30 days to disclose that a conflict of interest has arisen, and it then remains valid for one calendar year or until the conflict is resolved, whichever comes first.
A calendar year is January to December.
Physical year, right? Physical year is date to date.
The city's fiscal year is October to September. If you want to say a year, say 12 months.
12 months, one year, one date.
Just to clarify, a calendar year is specifically...
So we go with the language of 12 months?
So everybody's in agreement about that?
Yes.
Good morning. At least we all know what it's saying.
That's a good thing.
Are we ready for the next thing?
And it's up to y'all.
I'm ready. Are you?
Yes.
Yes. You okay?
Do y'all want to...
That's okay.
Go... I rewrote that last, that definition of conflict of interest.
Do you want to put that on the record so that they're able to type it out?
Yeah.
Okay.
So how I have it written, I think, reads, "The conflict of interest arises when personal
or financial considerations influence or have the potential to influence the judgment
or actions of a city official in their official capacity, period.
City officials shall avoid actions or conduct in their official capacity that they know
or should know are likely to impact the personal or financial interests of any
of the following in a way that is not shared with a substantial segment
of the city's population, A through G."
And that basically is combining one and two?
That would be just one, and then you can leave two, because two is that general rule.
City officials shall be proactive and transparent, and then we can take out that second sentence
in paragraph one.
Remove this.
Yeah. You can throw that into two if we want it.
I think that should be taken out.
I think it should be taken out.
Yeah.
Just remove this.
This is still here.
Did that mess list go back up here?
Correct.
Second and third sentence in paragraph one.
Starting a conflict of interest or challenging organization.
I don't think anybody cares.
Number two restates that in a different way, so I think that the gist of that last sentence
is already in the general rules.
This sentence will be removed. These two sentences will be removed.
This will be reworded to what you just said.
This list will move up.
Move up under there.
And then this states?
It sounded like you removed that as well.
Which were the first sentence of two?
Based on what you said, which I didn't get it all down, I don't know that any of this
is still necessary if we just move this list up to be under what you said, but I'm not
looking at it.
I got it.
I think you moved part of paragraph two up to paragraph one under the definition.
Yes.
I don't know that those needed to be two separate paragraphs.
Yes, but I think that what we're trying to say, the city officials shall be proactive
and transparent.
I think that needs to be incorporated under number one.
Yeah, definitely believe in transparency.
That's a big ethical concept.
Have we thoroughly confused you?
I thought that could be the opening sentence though.
Couldn't that be the first sentence?
Officials shall be proactive and transparent.
Like this is the expectation and then get into the specifics.
I like that.
And I don't think you need based on perception.
That's opinion.
That is subjective opinion.
When you use that word, I don't think there's any place for code of ethics to have subjective
opinion.
It should be objective.
So that's just a waste of words in my opinion.
And a potential place for confusion.
I know what you're trying to do.
Remove all of this basically.
Yeah, definitely remove that.
I think that came out of the city staff code of ethics.
I don't think it needs to be.
Can you email whatever you want to?
Am I allowed to?
Yeah, you can email us.
That would be easier than coming back and trying to listen to the tape.
If possible.
Perfect.
Thank you very much, Charles.
Those are good suggestions.
Yeah, I think it makes it a lot more clear.
We don't want to put more confusion in there because that will be fodder for your complaints.
So we're ready to go on to the next thing?
So I wanted to discuss the burden of proof section.
The red lines, I changed them to how we discussed last time.
I did want to give just a quick overview of burden of proof.
So because the Board of Ethics is quasi judicial, means it's like a court because code of ethics is a local law.
The burden of proof is the duty or responsibility placed upon somebody to prove or dispute the facts.
Often that's the plaintiff in the United States because there's an assumption of innocence of whoever is being accused.
A very, very brief summary of what that looks like in civil and criminal courts.
And the burden of proof is the amount that has to be proven.
So in criminal, it's got a reasonable doubt.
In civil, it's generally imponderance, which means more likely than not.
Our current code doesn't actually say which burden of proof we're using.
It just says the plaintiff has to do it, which is typical.
So does that help set this conversation up a little better?
Well, it all goes, and I might be out of order, so please let me know if I am, but that goes to who is making the complaint.
Yes.
Okay, and I am very strong-willed about the fact that you should, the person making the complaint, based on what I heard last week,
they should say their name or we should not take it up.
We have a right as a human being to be innocent until proven guilty,
and if they're not strong enough to come up and give their name when they make that complaint,
we should not take it up.
We have no business taking it up, and I'm just really strong about that.
I've never been anywhere in any way that they took a complaint without the person's name being given.
Now, having said that, it's our responsibility as a board of ethics to make sure that we protect that name
until a time in which that name has to come forward.
But the reason I'm bringing this up now is because you're bringing this up, and they kind of come together,
and this was me listening to you last week, and I was like, I don't think we want what we're trying to say we want.
You know, I'm sorry, I understand you're trying to protect that person from coming up and speaking,
but they've got to be strong. I don't know if you've ever gone through that.
Did somebody blame you for something you didn't do?
It can ruin a person's life.
Or you didn't know who was making that complaint.
Ma'am?
Or you didn't know who was making that complaint.
I'm sorry?
You didn't know who was making that complaint.
Right, right. I mean, I think, but it goes with this because it's all kind of together.
Who's going to make that burden of proof?
And so I think there's a lot of cleaning up that this situation has to do,
but I just disagree with some of you in here and what you said last week about, you know,
we're protecting these people because we don't want them not to say what they think.
Well, they've got to be brave enough to say it.
It was me that said it.
Part of this got started is because part of this code was written where part of the staff manual
kind of snuck in the back door here where you could file a complaint and kind of leave your name aside.
Maybe that's okay from a staff standpoint,
but it's pretty clear to me that that should have never snuck its way into an ethics code.
So I agree completely that the name of the complainant should be protected up to a point
that there might be a hearing.
But a lot of this kind of crosses over into the legal side of this where, again,
I keep coming back to the fact that complainants have no legal resources.
They are not able to, you know, we're sitting here assuming that a complainant can --
they have all the resources to investigate and put all this together and present this.
This is why a lot of citizens don't want to mess with it.
They may have violent or vehement complaints,
but they're just not willing to step aside and file what's necessary.
So I'm not suggesting their name be protected in any way.
But we have to understand that a lot of times right now we're back and forth between,
you know, complainants on the staff side being protected from citizens.
And so I just really want to do what we can do to open this up and allow a complaint to be filed.
Bias isn't with the name.
The name should be a matter of record.
But we're holding them to standards.
They have no legal resources to investigate and do anything to present this to a board of ethics.
And that's why a lot of them just say, "What the heck with it.
I want nothing to do with this."
I think part of this came up because of the ability of people to anonymously file a complaint,
an ethics complaint, through the hotline thing.
I've been on this board for a long time.
I didn't even know that was an option to do.
It's a way for a city official to essentially relieve themselves of the duty to report.
They can use the anonymous hotline to report what they believe to have been a violation.
And then if somebody comes back and says, "Hey, you knew about that. You should have reported it."
They can then say, "Well, I did," through the anonymous hotline.
And then there's a record of that.
But when we received that, we processed it as though they hadn't completed the form,
that it wasn't administratively complete, because it wasn't.
They didn't submit their name. It wasn't notarized.
And so I brought that to the board to say, "Do we want to keep allowing this?
Is there some other method we want to do that?"
Because it never happened before.
And then we got direction on looking into if we can maybe keep a name confidential for longer, essentially,
but we're still looking into that still.
But this discussion about the burden of proof has been going on a lot longer than that.
We presented to the council last year, "Hey, we don't even think that they should have to present at the hearing."
So I put this together to try to give us a little more context for legally,
this is what burden of proof means and how it functions in civil court and criminal court.
We're not in either of those courts, because this is quasi judicial,
but when we're talking about burden of proof, this is what we're talking about.
And the ordinance actually doesn't even set a burden of proof standard, which is confusing.
But it does require the complainant to meet the burden of proof.
And that is generally how it works within the United States because of the presumption of innocence for the accused.
So I want to make that clear.
Well, how do you know who the complaint is if you don't ask for their name?
We do require their name.
Okay, so when they report a violation, they have to give their name at that point.
Correct.
And it's our job to protect them.
And to David's point, he's afraid on one side if we don't protect them, they won't come forward.
Is that correct?
Right.
If they feel like they're putting it all out there and they have no resources within the city to present their case,
that they have no ability, they have no subpoena power, they have no power to investigate,
their hands are tied in terms of trying to present this only as a complainant against all of the resources that the city might be able to put.
But that's not their job, is it David?
I mean, isn't that our job after they put the complaint in?
And that's exactly one of the points that, well, I mean, I don't know that I'm skipping ahead here.
But it says in the code that the burden rests on the complainant.
Well, there's a statement here to a red line on the establishing the facts, the responsibility to establish the facts.
This is the red line.
The complainant shall present sufficient facts to establish that a violation of this article has occurred.
And then it goes into the red line of burden approved.
No, it's the board of ethics that shall present the sufficient facts, not the complainant.
I agree with that.
But in these red lines, that is exactly what we're eliminating.
I mean, the burden of proof because the burden of showing is eliminated with those facts that you just read.
Responsibility to establish facts the complainant shall present.
That stays, but the burden of proof language is taken out.
That's what the red line shows.
I don't want to go all the way back to how this code got written in 2017,
but this just jumped out initially to the folks on the ethics committee.
No, wait a minute.
This is calling on citizens to take on the task of the board of ethics.
What's this all about?
The board has subpoena power, that's true.
But the board cannot be the prosecutor because you're essentially the jury.
Well, prosecute's a bad word right there.
It's a law.
If you're trying to investigate, you can't decide if you've read enough evidence.
That's not how the legal system works.
This is a law.
Yes.
That's true.
So we have to make sure that we're complying with the Constitution.
You are acting as the judge and the jury as part of this legal system.
So you cannot be the person who's prosecuting the respondent.
I'm totally fine with the complainant's name being part of the record.
I'm totally fine with that.
But I think we're asking way, way, way too much of the complainant as this process gets started.
Even in our code, who's responsible?
Let me ask you this though, are you objecting to the complainant shall present sufficient facts to establish that a violation of this article has occurred?
He presents those facts in writing to the board of ethics.
So you do not object to that language?
No, not at all.
In this red line, the burden of proof is eliminated.
I'm totally fine with the complainant stating everything they know in that complainant, but then turning the matter over to the board of ethics.
It's sort of like we did today.
We had a complaint, a person followed it, we took it up, we voted on it, we had to move forward, we would have moved forward.
That person gave it their name.
And so that's what you want, and that's kind of what we did.
So I don't think after the fact of the complaint, I'm agreeing with all of you that we should not put all that on the complaint.
I mean, you know, but I don't think in your writing you're doing that.
I mean, I think you've taken that out.
But the way this spells it out, yeah, I mean, I think that today they had to put down what they thought, blah, blah, blah, blah.
And, you know, and we voted on against it.
But I don't think the complaint has to go three steps up.
I mean, I think they have the right to say what they think and then move on.
I agree completely, but that was not -- I don't want to go all the way back to 2017.
But this code, this particular section of our code was written to weaponize it against anyone who dared to file a complaint.
But it's not that way now.
Well, yes, it is. That's the way it still reads.
It is that way now.
And I will say I've read many codes and I have never seen the burden of proof placed on the complaint.
I've only seen one city that mentioned burden of proof, and that's the city of Dallas, but they place it on the board.
I'm fine if they're mandated to.
I mean, even in similar cities and work organizations, they don't even have to appear.
If the complaint is completed and testified and signed off, sometimes they don't even have --
I have no problem at all requiring a dentin complainant to attend a hearing
and even answer a question if there's something that is unclear that needs to be substantiated or verified in the complaint.
But other than that --
So how do we fix this?
Well, it's redlined out, and I would like to see it stay out because I don't think the burden of proof should be --
You can fix this if you just replace the word "complaint" with "BOE" in this red line here.
The board --
Who would the board then be presenting the facts to? Themselves?
I'm sorry.
If you replace the complaint with the board, then the board shall present sufficient facts
to establish the violation of the article occurred to themselves?
Yes. Yeah. The board.
How is that -- that's not --
I just like to at least take it out. That's my -- yeah, that's the part.
But then there's no -- but then there's no burden.
So whenever the complainant or the person complained on -- we're going to call them the defendant --
when the defendant --
Respondent.
Respondent, there we go, is someone that maybe the board doesn't like.
Well, now the burden's on them.
But if it's somebody that the board likes, well, the burden is on this guy.
And so the burden has to be specified of who's going to bear this burden.
We're potentially taking somebody's livelihood away from them.
I think it needs to be a very high, clear and convincing -- not beyond a reasonable doubt --
but a very high burden on the complainant to -- however -- I don't care how they want to prove it.
If they just want to write an affidavit and not show up, that's fine.
Did you meet your burden in that affidavit?
Maybe. I've met my burden plenty of times in court with an affidavit.
So it's on them to establish that.
It has to be on them.
We can't place it on the respondent.
They did nothing to incur a burden, so it's definitely not on them.
We can't place it on ourselves because the judge and jury do not have to present any evidence.
We just listen to the evidence.
We're the finders of fact here.
And so that leaves only one person unless you've got rid of the burden.
I hear what you're saying, but why is it not mentioned in any other code?
I've never --
You have the responsibility of the Board of Ethics to investigate complaints,
not just sit back and say, "Okay, complainant, tell me what you know."
That's not what a Board of Ethics does.
So then we need to draft the Board of Ethics procedures and our mandate of --
if the complaint is actionable and has been brought to the board
and there's grounds to issue subpoena, then the board should issue the subpoena.
Then we help gather the facts, but it's not our burden.
But if we need to be mandated to issue the subpoenas for whatever it is, okay.
But we can't have the burden.
We're the fact finders.
We just listen.
So in some jurisdictions, there is a separate investigative function that is like an inspector general
or something that is separate from the board that is not the complainant
and basically receives complaints and says, "Okay, I'm going to look into this for you,"
and then presents it to the board.
We don't have that here because we don't have the resources for it.
And I'm going to -- just because we're not using the word prosecutor,
we're not using the word defendant, right.
We're not -- we are using a complainant and we're having a respondent.
So I also don't think that we should be using the word to investigate
because I don't think that it is accurate to say that we are --
that as a Board of Ethics that we are here to investigate.
We're establishing a code, right.
We are overseeing the code that is implemented
rather than going out and investigating if somebody did not act ethically.
Well, I'm just referring to the universal code.
The word investigate is in there from top to bottom.
This is what the boards do when they have a hearing.
So once we, as a board, or we find out that somebody has been a bad boy, bad girl,
do we then send that to the city council?
Is that what happens right now?
No, we just make it.
Okay.
And I guess I'm going to ask a stupid question.
But why don't we put the burden on the city council?
Because most of the complaints were against the city council.
Yeah, let's not do that one.
I guess I think --
We're trying to -- we're sort of trying to take the city council out of the equation
so that it doesn't become weaponized.
We're not sending anybody to prison.
The worst that can happen is a sanction and read the debt code.
It's the weakest penalty that you can find anywhere.
Some cities even attach financial broker.
I think I got a little lost on -- this section has been redlined and it's up there.
And when I read that and just don't read the part that has the strike through,
I'm not sure I understand where a lot of the concerns are
because we're saying the complainant shall present sufficient facts
to establish that a violation of this article has occurred.
That's nothing new. That is a requirement for the ethics complaint form.
For it to even get to a panel, their name has to be on the form.
Exactly.
If it's not on the form, then it's deemed incomplete by a city auditor
and then nothing happens through the panel.
So that they have to put their name on the form.
They have to have enough facts in there so that the panel, like what happened today,
whoever's on the panel makes a determination.
This says that there is a violation or if all this is correct,
it looks like there is a violation and this should go to a full Board of Ethics Committee review.
I like the way it's written there. I kind of think that's what I'm hearing.
Isn't that the way you decided this last time?
Well, I think this is the language that was discussed last time.
We heard discussion today about being able to face your accuser and that sort of thing.
That's what's written right here.
If the complainant does not show up at the hearing...
But the accuser in today's hearing didn't show up.
That wasn't the hearing. That was the panel.
Oh, the panel. So they don't have to show up for the panel.
Right. Hypothetically, if that complaint today went forward to...
Oh, then he would have to.
Ethics were hearing and that complainant did not show up, then there's no hearing.
A lot of people don't understand that we have it too hard.
I might have slept since last week. I think I did.
But I could have sworn that when I was listening to you, and this is why this came up,
I could have sworn last week, I mean last meeting that you guys were discussing,
taking the complaint without the name of the complainant being on that form.
And we did, and we did.
But that was directly related to the anonymous hotline.
Because we had an agenda item that said...
But that's gone away.
Because Madison was...
Right, essentially it was in the code and it occurred, but it had never occurred before.
So I just wanted to check with the board.
So what you're saying is really what we have and what we want.
What we have today, this would be what we're going to go to...
If we can approve all these red lines that are on this,
we're going to go to city council and say, "Hey, this is what we think you should do.
We think you should approve this, that we've spent hours and hours trying to rewrite."
And hopefully they'll actually approve our recommendations, which has not happened.
I do want to clarify that I'm not against this language, because this is exactly what we discussed last week.
You're saying that we can get rid of the word burden of proof.
I don't really...
We can get rid of the word burden of proof as long as we're not taking away the actual effect of it,
which is exactly what we discussed and came to.
I think this kind of softens it without changing the name.
And that is exactly what we discussed last time, right?
Yeah. And that word has been, that term has had a chilling effect for potential complainants.
I think for some background, like the concept of being anonymous on the complaint,
there's no mechanism right now for there to be ever any kind of panel
or like a panel, a three-person panel that meets for a hearing if their name is not on it.
The only, it's not really anonymity, it's just a confidentiality thing,
is that up until that panel hearing that happened today is scheduled,
then the complaint is considered confidential.
And in practice, I think, that is so that someone can't submit a complaint
knowing that it's going to be either baseless or it's frivolous,
and then go and promote the fact that there is an ethics complaint against someone.
In the past, that has happened during an election cycle.
During election.
And the person that submitted the complaint
immediately went to the dental record chronicle and said there is an ethics complaint against this candidate.
But I apologize, because that goes for what you said is what you said, but I got it now.
Yeah, I think we were surprised that, we didn't know what to do with it.
There was no way to address that kind of complaint because there's no,
like it just doesn't meet the requirements.
So, and I mean, when I read this, we're taking out the literal, like here is the burden of proof,
but we are requiring the complainant to present the facts,
which is nothing different than what happens now because they have to present the facts on the complaint form.
And they have to show up at the hearing.
Not the panel thing to just kind of review is this possibly a complaint,
but if there's actually a hearing where we're trying to decide that this person actually violated this code,
the complainant has to be there and they have to testify.
There's nothing in here that says they have to present evidence other than what they've already submitted.
They don't have to have an attorney, but I think they're allowed based on our own procedure.
But they don't have to show up as the prosecutor, which I think stating the burden of proof is on the complainant makes it sound like that very clearly.
The way it's written in this version is that they have to provide the facts that there was a potential violation.
That has to all be complete on the form.
And then as far as the due process part comes into play, if it gets to the point of a hearing, they have to show up,
they have to face the person they're accusing in person, and they have to agree to testify.
Which doesn't happen in some cities, but we're good with that part.
I just don't like, I want the language softer.
Yeah, the only caveat to that is the part about frivolity.
So like today, the complaint you guys reviewed in that panel, if you would deem that as a potentially frivolous complaint,
and then there is a full board hearing, then the respondent does not have to show up to that.
The complainant who, so in a frivolous complaint, the complainant has submitted something that the board is then deciding if it's frivolous,
if they just didn't have to show up and it got dismissed, because they're still the complainant in that sense.
Some of it isn't the wording stuff, so just trying to make clear that if who the board thinks maybe submitted a frivolous complaint doesn't show up,
that doesn't mean it just gets dismissed basically.
I think I said that wrong.
You said the respondent, so it's fine to clarify.
Thank you, Josh.
I'm going to say that all.
I think we're all on the same page.
I think we're all on the same page, so you get the way it's written up there with the words taken out.
I think the way it is read is very good at addressing this.
I mean, it worked really good for me.
I have a question about the complainant shall present sufficient facts as a mandate.
What happens if they don't?
Then they don't meet?
We all move forward.
Then the complaint gets dismissed?
Yeah.
You've got to have the facts to decide if something's been done.
Right.
And then my other question is present sufficient facts.
I'm just curious if you all agree on what presenting facts means,
because presenting facts could mean alleging facts.
It could mean putting forth evidence.
Those are different things.
I think we're getting too deep into logistics that we're trying to solve every little thing.
I understand when they say facts.
Today I mentioned facts because I didn't have facts in front of me to make a judgment,
but it was based on the complaint, what the complaint said to me that caused me to not have the facts.
So I think that the statement is going to give the facts in some sense.
I don't know the right word for that, but maybe a lawyer does.
Would just putting the word alleged facts solve that problem?
That would be clearer.
That's what you all mean.
That would be the opposite of what we want.
We don't want it to be conclusory allegations.
We want it to be actual facts.
Here is an email that I got.
Do facts need to be verified?
Vertifiable facts?
I think one question that we had at that hearing was,
the evidence was a video of a council meeting and it was not stated anywhere if that was invisible.
Oh, we had that issue prior and then we corrected the rules of procedure
or amended them to make that clear that it was invisible.
I guess let me rephrase.
Is the first sentence establishing the standard under which a complaint will be considered?
Or is it establishing the standard under which a final determination will be made?
Final determination is my understanding.
If you present sufficient, which now that you've pointed out is kind of vague, facts to establish the violation.
Okay, you've won the case. Violation has occurred.
But now, what is the definition of sufficient under the year?
I think we ought to take sufficient out.
Would that be, what do you think about that?
Sufficient facts to establish that it is highly probable or reasonably certain that a claim is true.
More likely than not.
More likely than not puts us on a preponderance of evidence rather than a clear convincing that it's a lower burden.
Yeah, I just don't know which one you'd go on.
I would prefer the higher burden.
Okay, I get what you're saying.
To establish beyond the reasonable doubt.
That's the highest burden.
Okay, okay.
Don't want the highest.
Okay, what would you say then?
That it's highly probable or reasonably certain that this is happening.
So it's like, it's more than 50%, right?
So you have a preponderance of evidence is the scales are equal and all I have to do is beep and it's established versus clear and convincing like this and beyond a reasonable doubt.
Okay.
The preponderance is used by Dallas.
It's up to y'all.
Yeah.
It would be great to get a clear direction on which one you would like.
I would prefer the higher clear and convincing if Dallas is using preponderance.
Dallas is in a whole different.
I'm trying to find another one.
There have been a lot of, there are people sitting in jail right now because of things they did in Dallas.
Well, let's bring it back to what we talked about with the anonymous complaints.
So we have a complaint filed and then someone uses just the mere complaint to thwart an election.
That election costs that candidate something pretty substantial in my opinion, right?
It's a substantial thing to lose.
So I think the burden needs to be higher to say, look, you could cost this person their livelihood.
Whatever it is, there are actual consequences to filing these complaints for the person you're filing against.
And so you need to be able to meet, you've got to present something to us that establishes that it is more,
that it is certain that this has happened.
It would be on a reasonable doubt, but that it's certain or reasonably certain that this has happened.
I think that's better than just saying, tip the scales in your favor and we'll ruin this person's life.
I was looking for another word for sufficient, adequate, adequate facts.
Sufficient is fine.
Maybe just add in reasonable after that, present sufficient facts to reasonably establish that a violation has occurred.
Okay, so sufficient facts to establish that it is reasonably certain that a violation occurred.
Would that be okay?
To reasonably establish that a violation has occurred.
My problem with the word reasonably is that it's subjective.
The word certain is not.
A likely violation?
I think Madison can work out the language of it if you all want to just...
Do you agree with Mr. Ferguson's recommendation of clear and convincing statements?
I do.
Is that a direct burden on Madison?
I think the language that you said won't make it work.
I just want to have a discussion about what actual burden of proof you want.
I think we have that.
Everybody agrees with clear and convincing.
So sufficient would become clear and convincing?
I think we could keep sufficient perhaps if we say that it's reasonably certain that there's a violation.
But we'll bring that back so that you can see actual language.
I definitely agree with you.
Sufficient, enough, adequate.
Basically I just want to know, do you want it to be 51% certain that a violation occurred or 75%?
Which would you rather have to be sure of?
I'd rather have 75%.
I just like the wording and I like where we're going with it.
We'll remove the actual words, burden of proof.
We'll know if there's responsibility to establish facts to be reasonably certain that a violation occurred.
And then the complainant will still be required to attend to testify because that's part of the evidence that they represent.
That is the burden of proof section, and then the last item is future.
Oh, okay.
Unless we all have more discussion about this.
No.
So we're finished with item D. We're moving to item E.
BOE 25-005, Receiver Report.
All the discussion in good staff direction regarding future meeting topics.
Yeah.
So next time we'll discuss the red lines of this.
We'll have a book and then in theory we'll be ready to go to the city council in March for discussion.
And that's all I have on the agenda for right now for next time.
But you can add something if you would like.
No, I think that's...
No, no.
Okay.
I don't mean to speak for everybody, but I think these are big things we're talking about.
I would say in the future I would like to start looking at some of the items in the glossary.
The definition section?
Yes, because some of them are really in need of review.
And obviously we'll talk about March and April next meeting, what we want to discuss.
That's fine.
Anything else, guys?
So it is now 7/24 and this meeting is adjourned.