>> All right.
Let's call this meeting to order.
It's 540.
There was a little bit of traffic and then we're setting
up the video for the first time so we're a little late today.
But we'll go ahead and get started.
The items for consideration, number ABOE19-047,
consider approval of the minutes for September 11, 2019 meeting.
I believe under absent it says Ronnie Mohair
and it doesn't have excuser, not unexcused.
Betsy, do we know?
>> It was excused.
So we'll change the minutes to show excused there.
Did anybody see anything else on the minutes that need to be changed?
Do I have a motion to accept these minutes?
>> So moved.
>> Moved by Annetta Ramsey and is there a second?
>> Second.
>> Second by Don Cartwright and all in favor say aye.
>> Aye.
>> So motion passes to accept with adding Ronnie Mohair is excused.
The next item on the agenda is B, BOE19-048.
Oh, and actually just a side note, the full board is here
and there are alternates here.
The alternates are Debra, Rob, and Bob and they can be here
but they can't deliberate or vote.
Debra is on the agenda so she can obviously speak
where she's on the agenda and we can converse then.
But just want to make that clear for the video.
I've already told the board that.
So after saying that, oh and then also do we need to go over who's here today
and who's excused, I guess everyone's here today?
>> Everyone's here.
>> Okay, so everyone's here today so we don't have to go over excused, absences.
Yeah, so we'll go to B, BOE19-048, hold a discussion on updates
to the current membership of the ethics board.
>> Mr. Hall, city auditor.
We have a new member, Larry Beck, that is joining us.
I am not sure whether we welcome Annette Ramsey
and she's also a new member joining us.
>> Okay, yeah, so Annette was at the last meeting.
It wasn't videoed and I don't think everybody was here.
So I guess anything more than that for that agenda item?
>> No.
>> Just welcome Larry.
>> Larry.
All right, so ready to move to item C or?
>> Quick question.
>> Go ahead.
>> I'm used to, if you had a question you would be recognized by the chair
if it didn't apply and you're doing it.
How do you work with it?
>> I mean, it's pretty, today it's pretty full.
Usually it's pretty relaxed.
I would say if there's a lot going on, just you know, maybe get my attention.
But sometimes we just kind of discuss without needing to do that.
>> All right, agenda item C, BOE 19-049, receive a report, hold a discussion,
and take necessary action regarding board attendance, record of absences,
ethics training deadlines, and meeting dates for November and December 29, 2019.
As far as the attendance and recording of absences, Betsy has mentioned to me
that if you're not going to be able to make a meeting,
to please let her know beforehand, as soon as possible, and make sure to give,
even if it's the day of, to give her some notice so that we can be on notice
when we kind of take attendance and take absences.
And there was also, we also talked about whether absences would,
whether vacations would be excused absences.
>> This actually, we have an old version.
>> All right, I have an old version of the agenda.
So, all right, so C is BOE 19-049, receive a report and hold a discussion
regarding board attendance and ethics training deadlines.
So attendance, was I on the right track that we were talking about?
You wanted us to speak about letting Betsy know about?
>> Sure. As you all know, city auditor's office provide administrative support.
Also city auditor's office is responsible for providing training to this board,
city council members, and several other board members
that require this training under the ethics ordinance.
Again, since we are tracking training for so many people,
tracking them separately becomes an administrative burden.
So we are planning to have a training in January,
and we may hire someone to provide that training.
And what will happen is, if you have taken the training 60 days before that January date,
January 1st, then you are excused from that training and you take training the next year.
And, but if you have not taken training 60 days before January, January 1st,
then you will have to take that training.
That training would be useful because we are going to be hiring someone to provide that.
So even if you have taken training within 60 days prior,
it may be a good idea to attend that training.
>> So if you take it prior to January, it's going to be the same one we've already taken?
>> As I said, we are going to be hiring someone to provide that training.
>> For those of us that have already taken a training, because we've been on the board for almost two years,
it would be the same training if we don't wait until January?
>> The same video.
>> The same video we've already watched?
>> If that is the choice that you want.
>> Oh, no, that's not the choice.
I'm just saying, like, there's not a new one until January.
So I feel like if we were to take one, it's probably a good idea to just wait until January.
>> Yeah.
>> Okay.
>> Laura, does that apply to alternates as well as members?
>> Yes, I believe so.
>> Okay.
>> It's all members and alternates.
You'll see on this board, many, most meetings, alternates do participate.
I think this is the first one we alternates, no alternates have participated.
>> Yeah, today is unprecedented.
>> No alternates have participated thus far?
>> Oh, no, no.
This is the first meeting where an alternate isn't participating.
Thus far, every meeting, we've had to have an alternate, so.
So is there anything else to discuss on that topic or?
>> Well, again, on the absences.
>> Okay.
>> We would like to know in advance whether the absences are excused or unexcused so
that we can record accordingly, and let the chair know.
And that helps us in keeping everything straight.
So we'll appreciate it if you let us know in advance.
>> What cause is an excuse?
>> I think we're actually going to go over that in agenda item B.
Let's just, on that note, we'll move up to agenda item D, BOE 19-053.
Hold the discussion and take necessary action regarding the classification of absences for
vacations and surrounding circumstances pursuant to Dent and Code of Ordinances 2-83C.
I know now, if you're sick or if it's work-related, it's excused.
Are there, and then I guess it's discretionary to the board as far as other reasons for excuses?
>> Yes.
That particular section allows the board to decide what is going to be the excused absences,
and this board needs to decide.
The issue has come up whether the vacations are excused absences, and this board needs
to decide.
So this particular item is to vote to consider and vote on that item.
>> I'll say my opinion is, you know, I can leave work for a vacation.
I feel like we should be excused for planned vacations on this board, too.
I don't know, I'm not seeing any heads shaking, so if there's any kind of motion, we can entertain
that.
>> I think maybe there ought to be a number of meetings that you could miss for a vacation,
not just a blank, because I am now retired, so I'm almost on vacation all the time.
>> Can we do that, you guys?
Sure.
>> I think so.
That is your rule.
>> Okay.
So, I mean, I'd be okay with that.
But how many days do you think, or how many times?
>> I think maybe three meetings, or two meetings, or I'd miss no more than that.
>> No more than that is an excuse.
>> For vacation.
>> And I was going to ask on the same lines, because, again, in the other organizations,
that you're limited to so many absences, too, either in a row or in a year.
Is that applicable here?
>> Again, that is your rule.
>> Oh, that's our rule.
Okay.
Well, okay.
So, absences for vacations and surrounding circumstances, I don't -- with that agenda,
I didn't include voting on the agenda item D. We can vote on vacations, but as far as
missing, like, consecutive meetings, can we vote on that under that agenda item or not?
>> Deputy City Attorney, it's set up to basically where, if you were going to talk about vacations,
you could put the circumstances surrounding that vacation like it's something planned,
or it's no more than two in a row, something like that.
Generally, I don't think the agenda caption would be for you all to just go into other
alternative methods of deciding what is and is -- would not be appropriate, generally
under attendance, because those would typically be handled by the boards and commission handbook.
>> Okay.
All right.
So, I think we're all in agreement that they -- you should be allowed two or three vacation
days.
Do we want to make any rules about consecutive meetings missed for vacation days?
>> If they're unexcused, if they don't call in or anything, if there's three in a row
like that, that probably should be -- or else, take a look at it.
>> And as Trey just mentioned, there -- the boards and commissions have rules as far as
-- and I think it's three -- that if you miss three unexcused, then you can be removed.
More than -- okay, more than three, you can be removed.
So that's already in place.
>> Okay.
>> What we just need to consider is what -- like, what we can decide that isn't in the board
and commission rules is that people can have excused absences for vacations.
And it says, "An excused absence shall include personal or family illness, death of a family
member, jury duty, service in the armed forces, testifying before legislature, attending a
seminar involving municipal matters of importance to the member's duties, absence necessaries
for the member's business or employment, any related emergencies or matters which the board,
commission or committee finds qualify as an excused absence."
So I think this would fall under other matters that we would qualify as an excused absence.
So we have a little bit of discretion there as far as vacations.
>> Just as a point of clarification, the alternates don't have to worry about absences?
>> I think --
>> Well --
>> If --
>> I can answer that.
>> Yes, please.
>> Alternates are required to attend in case the regular members are absent.
So --
>> But they don't --
>> They don't have a mandate to attend every meeting.
So if the membership is going to be -- I mean, there's going to be a full membership for
a meeting, then alternates may -- attendance is not even required.
So it doesn't count against them.
>> Wouldn't we want to make a rule that you can have -- and I guess it's per year that
these rules are?
Or is it for your --
>> I think that this is -- it doesn't say any time limit.
>> Less than a minute to say that.
>> Yeah, under our rule of procedure is that it's a calendar year.
So it's -- the board's and commission's handbook will control if you miss more than 50 percent
of the meetings within a regular -- within a year.
>> And is there -- so on this board, sometimes when there's a complaint, you don't get a
lot of notice as far as -- so that's not counted against people if they can't make it for a
short-call complaint meeting, or is it?
>> The way that the board's and commission's handbook is set up is it says regular meetings.
So I think those would be special-call meetings, which would provide an exception.
>> I guess I would ask the board for a motion for us to allow two absences due to vacation
per calendar year for board members.
>> I so move.
>> Okay.
Larry has moved.
Is there a second?
>> I second.
>> Second by Sharla.
Everyone in favor say aye.
>> Aye.
>> All right.
Motion passes.
And we'll have two excused absences for vacations per year.
Agenda item E --
>> I do have a question.
>> Oh, yes.
>> Is that right?
Go ahead.
>> Are we going to -- can we -- can we make it right for that?
>> I don't think so.
>> I'm sorry.
I guess you can take more vacations from here on out and be okay.
All right.
Item E, BOE 19-050, receive a report and hold a discussion regarding the October 22, 2019
city council work session presentation outlining the board of ethics recommended changes to
the ethics boards and rules of procedure.
I had a hearing at work, so I couldn't make it, so Umesh presented, so he'll present this
agenda item.
I presented -- I made two presentations to the city council.
One was on changes to the ethics ordinance, and the other one was changes to the rules
and procedure for the board.
So during the meeting, mayor stated that all the recommendations will be considered and
discussed in work session, but the ordinance will not be changed on a piecemeal basis.
So what they expect is they want all the changes at one time, and then they are going to consider
all the changes when you are done.
The revision to the ordinance will be comprehensive.
That's why they want to do that.
Councilmember Meltzer and the mayor also stated that city council can make recommendations
as well to change the ethics ordinance.
Mayor stated that, I mean, the ethics board should not be concerned about whether they
are going to accept or reject any of your recommendations.
The board should go ahead and make recommendations of whatever they deem fit.
I have a question.
Sure.
When I went up there, they had told me that they wanted us to bring recommendations as
they come.
So I guess that has changed.
That has changed.
Okay.
Well, you can bring the recommendations, but they are not going to change the ordinance
until it is comprehensive and then you are done.
Did they, I mean, did they give any definition of what they consider the comprehensive and
how many changes they want to get there?
No, they did not.
I mean, they said that any and all changes that the board wishes to make, we have to
take it to them and they will consider all the changes at one time.
Okay, so regarding whether we should use outside council or whether the city attorney is going
to provide us some assistance, and I had a couple of questions.
Miss Armenter requested that, she wanted to know how much we are spending on external
council, and she also asked what other cities do in similar circumstances, and the city
attorney answered that the other cities also hire outside council when the city attorney
has a conflict.
Other than that, I mean, there was no objection to using city attorney's help where he does
not have conflict, and the city attorney also agreed with that, so that's fine.
So with that saying, does that mean that when we do have an issue that we are not going
to get a push back to using outside attorneys?
No.
Okay.
Again, using the outside council, again, it's based on the board's need, and as long as
it doesn't conflict with the city attorney's duties.
I was there at the presentation, and my sense was any time a member of the city council
has been for a code violation, that the city attorney should sit down, because he sits
on that council.
Exactly.
And that's what we spoke about, and that's the change we wanted to make, and I think
we can go ahead with that even though it's not in the ordinance yet, because honestly,
the city council is going to conflict themselves out.
That's exactly what it is.
So during my presentation, I said that whenever the complaint is made by the city council
member, or the complaint is made against the city council member, the city attorney definitely
has a conflict, and he cannot rule on those issues.
Okay, if we do need a special council, how much lead time will we have to establish that?
Usually, maybe two or three days.
Okay.
Thank you.
If we do need the outside council, is it always going to be the government work with SCRM,
or could we have a panel of, say, three that we can select one or another?
Yeah, if we do not want to use Miss Corp versus SCRM, then we can always get another attorney.
There is no rule that we have to use that from.
And we actually, we talked about, I don't know if you're here, Ron, we talked about
Berkowitz's firm, and we talked about, what was the gentleman that came to a couple meetings?
Yes.
Prouty, Mr. Prouty.
Mr. Prouty, that we were going to, we were going to request to have somebody else sent
from Berkowitz.
Yeah, I remember that.
Okay.
On the issue of whether replacing the word accused with a respondent, there was general
agreement with the council.
There was no comment, no objections.
Same thing with the issue of availability of copy of complaint to the respondent, because
what happens, we have, as we have, this board has experienced, the complainant, I mean,
the complainant and everybody else, I mean, complainant knows about what the complaint
is.
The board knows about what the complaint is, but the respondent doesn't.
And by the time the complaint is heard, there is enough publicity, so that puts respondent
at a really bad situation.
So they agree that that needs to happen.
I mean, the complaint should be available to the respondent.
There was a lot of discussion on whistleblower's protection, and the whistleblower's protection
discussion revolved around that two things, that they wanted more, I mean, they wanted
that provision expanded a little bit, and because Mr. Hutzpah, council member Hutzpah
didn't think that that is specific enough, and he also said that there are no consequences
if you violate, I mean, it's not defined in the ordinance.
And I agree that it was not defined.
But I did say that the board is going to consider it as a part of the changes, because it wasn't
the presentation about the possible consequences.
So they get okay with that.
So they want us to bring it back.
Sorry.
The whistleblower, are the sanctions not the same as any violation under the ordinance?
That's up to you to say that.
Okay, and it's not in there?
It's not in there.
Okay.
Is there a clear definition in the ordinance of what the whistleblower is, going to councilman
Hutz was concerned?
Was that what he was trying to get as a definition of whistleblower?
So there's not.
That was actually, that's something that we worked on as the board previously.
And so we sent that, we want whistleblower, excuse me, in there.
There are like, government codes about whistleblowers, as far as like, the department heads employees.
But the whistleblower that we were talking about is, for instance, if a citizen accused
a council member, this council member kind of retaliating against like that citizen,
it was broader than just employee, employer, whistleblower protection.
Am I describing that correctly?
It's beyond that.
I mean, that it's not about employee, employer, but it was also, I mean, council member Hutz
felt like that the existing language that we proposed was broad, too broad.
But again, I mean, it's just an opportunity to revisit that.
And the mayor also felt that without the recommendation of what the consequences are, this provision
is not complete.
As far as providing reference to Texas government code for third degree of affinity and consensuality,
there was no objection.
I'm going to say that word one more time.
They also agreed with removing section 2-284(b) as it relates to department supervisors.
That was the nepotism?
Yeah, nepotism, yeah.
But that clearly did not belong in the ordinance.
Council member Arbender, Melzer and Melzer would like items on candidates for the public
office serving on the board be reconsidered.
Similarly, Ms. Arbender and Melzer expressed concern that right-of-way contractors were
excluded from the definition of vendor.
That what contractor?
Yeah.
What kind of contractor?
Right-of-way contractor.
Right-of-way.
And Council member Arbender and Melzer would like to remove universities from the definition
of business entity.
The mayor disagreed with this suggestion.
Would you like to say why he said that?
I'm sorry?
Would you mind saying why he disagreed?
Yes.
He said that university has got a very significant presence in Denton and we do quite a bit of
business with the universities and therefore removing university from business entity definition
would not be appropriate.
Okay, so that's it on ordinance and what about the procedure?
Okay, so on the rules and procedures basically there was no objection.
They accepted all the changes that we recommended.
And I guess do they want to change that after we would do the comprehensive ordinance changes
because some of those procedure changes depended on the ordinance changes being accepted or
being voted on.
Right.
Only thing that is going to be dependent on the accused versus responded but other changes
for example moving out amendments and alternate members subsections out of sections related
to hearing.
It's just reorganization.
So will they agree to vote on that before any ordinance changes just to clear up our
rules and procedure?
They did not say that.
Other changes we suggest, I mean the board suggested is fixed pagination or at sites
of the ordinance where it is missing and change table of contents to remove word legal out
of legal representation.
Because the body of the rules and procedure only address representation.
So those are the other changes but there was no objection.
All right, yes your honor.
I just wanted to ask you about the other changes that we have made in the ordinance changes.
The ordinance changes are not in the ordinance changes but in the ordinance changes.
They cannot serve on this board but does the handbook for boards and commissions over all
speak to that particular point?
Can candidates be on any board or commission or is there a restriction for them to run
for an office and serve on the board at the same time?
The only restriction that I'm aware of is the two offices of annulment restriction that
a candidate could not basically like if they're in a position where they're being paid for
their service now they would have to resign for that position to run for another position
that they would be paid for.
That's the only restriction I know of.
I don't know of a restriction that we have at the city currently that would prohibit
a candidate that is running for one of like the council seats from being a current board
member of one of the other boards.
I would say that we need to see that the board of ed. is not unique in that respect and we
need to be consistent.
If candidates can be on other boards and commissions then they should be able to be on this board.
When I presented to council several months ago there was, I don't remember how many,
at least a couple of members of council expressed that this board should be like any other board
and unless the board of commissions handbook says that you can't then you can't but we
shouldn't have a special rule for that so I'm in agreement with you.
It is still this board's discretion whether to consider or not consider that item.
As far as getting into the nitty-gritty of things we want to change that the council
talked about or new issues I think that's probably going to be left for a future meeting
but as far as questions about or discussion about the presentation do we have anything
else we want to talk about?
All right thank you thank you for presenting and my I was an emotional press hearing and
I appreciate your help.
Moving on to item F board of ed BoE 19-051 receive a report hold the discussion and take
necessary action confirming potential recommendations to the city council for amendments ethics
ordinance 18757 pursuant to Denton ethics ordinance division 3 section 2-277i including
presentation of possible changes by Deborah Cosmo and I have gone over all these materials
and I actually would like this the representative from the city attorney's office to speak to
whether Alan Berkowitz referred to the charter when the ordinance was written if you don't
mind.
Madam Chair just to your I guess commoner question when the ethics ordinance was crafted
the city brought in Alan Borquez as the outside legal counsel and consultant and crafting
the ethics ordinance as it related to the charter amendment so there were specific things
that were taken up by him as he worked with council through crafting the ordinance that
were specifically tied to the charter amendment is that what you're asking?
Yes and so when he was helping with the ordinance he was aware of the charter and worked with
the charter to put it in the ordinance is that the understanding?
Right right there were even specifically some things that they were taken up that he went
through saying that you know typically I don't know that we would go through all this at
just my recommendation but because it's part of the charter amendment we have to talk about
it and you have to put it in there to some extent.
And there was a consultant during the citizen charter committee was that was there a different
consultant during the city charter committee and then Alan came in later?
I think that's all I need.
I just wanted the board to be aware that Alan was aware of the charter when he wrote the
ordinance.
Okay.
Thank you.
So what we're passing around is the charter language and this is also I'm not quite sure
what the title is but it's information about the charter review committee and their recommendations.
Okay so I'm not an attorney I want to put that disclaimer out there I'm a research analyst
and so I did this comparison between the charter and the ethics ordinance as an analyst.
So on July 17, 2019 some of the city council members recommended that the board of ethics
review the charter recommendations as it examines the current ordinance and I guess I should
start with my name Deborah Cosimo I'm an alternate on the board of ethics.
So after some discussion with Umesh I decided I would review the charter and compare the
requirements, the "shows" quote unquote, to the current ordinance and so this is my
research and so in this presentation I will provide a brief overview of the ethics ordinance
requirements which has just gone around section 1404 of the charter.
I will present the findings, I will present recommendations and then I'll discuss the
background and the background analysis and the observations that I made, questions that
led to my findings and recommendation.
So this is the ethics ordinance requirement which you have in front of you as well and
you'll notice there are a number of "shall" the city council shall adopt the ethics ordinance.
Shall prohibits the use of public office for private gain.
Shall incorporate the conflict of interest standards that appear in local government
code chapter 171 and the council may have dropped more stringent standards than those
that appear in state law but the ethics ordinance shall at a minimum include the following components.
Definition of a prohibited improper economic interest and personal gain.
Definition of recusal and improper participation when there is a potential conflict of interest.
Avoidance of appearance of conflict of interest and administration and enforcement of the
ethics ordinance.
I'm going to talk about each one of them, it presented a nice checklist.
So my finding was that unless the charter requirements are included in the ordinance
but couched in completely different terms, the ordinance does not include all the requirements.
So I would be very interested to see how Mr. Berkowitz cross referenced his work on the
ordinance with the charter.
But barring that, before moving forward to amend the ordinance I think it would be helpful
to have an outside legal council, maybe not Mr. Berkowitz, review both the charter and
the ordinance to ensure that first that the current ordinance meets all the requirements
that are in the charter and second to cross reference the ordinance to the charter.
And I make the second recommendation because we wanted to be very, we've talked about being
very clear, common understanding so that citizens can look at this ordinance and understand
what's going on.
And so with my analyst brain looking at this I had some questions about what's going on.
So the first checkbox was to prohibit the use of public office for private gain.
There is no prohibition statement that appears in the ordinance.
However in the expectations, officials shall place the municipality's interest in the concerns
of those the city serves about private and personal interests.
However in the expectations these cannot be the basis for a complaint.
So it's an aspiration, it is not necessarily a requirement.
The only reference to personal private gain as the basis of the complaint applies to former
city officials in section 2-273, misuse of information and personal gain.
So on this one, the prohibitive public office for private gain, when I look at the ordinance
2-273 prohibitions, it has the conflict of interest and it has what defines conflict
of interest as far as when a council member owns part of a business or you know, we've
been over that.
And it has gifts, an improper influence, misuse of information, abuse of resources, I mean
it goes on and on.
I feel like 2-273 is prohibition for private gain.
But it only applies to former city officials.
I mean 2-273, the A, conflict of interest, that's what we've had in every complaint
we've had is about conflict of interest.
So I think while it doesn't say for private gain, the conflict of interest of voting on
something where you own part of the business entity or you receive $600 more gross income
from a business entity, that is a prohibition from being able to vote and then privately
gain from the business you own or the property you own or the business you work for.
So I mean that's how I see it, that I mean all of 2-273 are, I mean it's titled prohibitions,
the whole thing is prohibitions for public office for public gain.
Yes, when we're looking at the, I'll get there, okay.
I would like to know if the rest of the board look over this and have opinions on that?
I think it's implicit as you're indicating.
And it's four pages of things that they can't do, I mean how many more?
I think maybe it's just semantics, it doesn't say private gain, but as Ron said it's implicit
that it is private gain because it's about voting on things that you're an owner of or
you work for or you get gifts from or improper influence, misuse of information, everything
that's listed in the four pages of prohibitions.
Okay, I'm not necessarily agreeing with you, I'm just saying that as a person who is not
an attorney, an attorney, looking at this, this is what I see.
Let me ask you this, Deborah, in your position on this, are you thinking that maybe there's
some wiggle room for somebody to dance around what is there and that's why you wanted to
be more explicit?
I would like to know what actually is there and I think it would be a benefit to residents
of Denton to know exactly what is there and so that's why that cross-reference would be
very, very helpful.
Okay, if this is what it says in the charter, tell me where does it need it because I'm
not seeing it.
And maybe it does, maybe it does take a different kind of understanding, but I think it should
be clear.
Well, I mean, I'm sorry, but I mean the title is prohibitions and it goes on for four pages
of what, five pages of what counsel people can't do.
So I mean, I think it is clear that it's a prohibition for private gain.
It's not clear to me and I don't think it's clear to others, that I can't really speak
to others.
And if it is clear to you, then it would be helpful to have that cross-reference.
What would you recommend?
Using the same language would be very, very useful.
If the language is in, and I disagree that it's just semantics.
If the language is clear in the charter, this is what shall be done and the language is
clear in the ordinance, this is how we do it.
And using the same language, that would be very, very helpful.
Because when I look at it, it doesn't necessarily mean the same thing.
And when I did my analysis, I looked for all of these terms throughout the entire city
ordinance to see, is it talked about anywhere else?
Is there some way, somewhere else where it's defined, where it applies to this and maybe
I'm just missing it?
And I didn't find it.
To the next check box.
Incorporate the conflict of interest standards that appear in local government chapter 171.
So I'm not going necessarily with my questions, we have a copy of those in the memo, but I
just wanted to give you the information.
My observations.
So chapter 171 uses the term matter and describes when an official shall abstain from voting
in a matter.
For example, if a local public official has a substantial interest in a business entity
or a real property, the official shall abstain from further participation in the matter if,
first, the action on the matter will have a special economic effect on the business
entity that's distinguishable from the effect on the public, or secondly, it's reasonably
foreseeable that an action on the matter will have a special economic effect on the value
of the property distinguishable from its effect on the public.
Well, and I think 171, my understanding is that we want it stricter than 171, and when
I present it to council, they want it stricter.
They want it stricter.
We put our conflict into stricter.
For instance, in the last hearing we had with council members Arbitor and Meltzer, their
whole argument was that they didn't have a conflict, but because we want it stricter
than 171, they did under our code, because our code goes further than chapter 171.
Our code does if conflicting interest is the same as substantial interest, but as I looked
at it, I think pending matter actually restricts it even more.
By being restrictive and more narrow, it's not necessarily stronger.
So the ordinance uses pending matter, which is defined as an application seeking approval
of a permit, contract or arrangement of the city, or a case involving the city.
Prohibited, it should also include a definition of prohibited, improper economic interest
in personal gain, and prohibited, improper interest is not defined in the ordinance.
Economic interest is not defined in the ordinance.
Well, and I think what's prohibited is going against, for instance, conflict of interest.
Again, I think it's just a matter of semantics and the charter that's just half a page and
just lists these things versus our prohibitions are four pages long, and we go into detail
on what is conflict of interest, when are you prohibited from voting when you have a
vote.
So total board, and this is division three rules and procedures, this was incorrect in
your handouts of the slides, so what's in red is what's correct, the general rules.
The member shall be considered to have a personal interest in a matter.
Whenever a matter before the board could or does affect a member's financial interest.
The phrase financial interest when used here and shall have the same meaning as substantial
interest in a business entity, as that phrase is defined in code 171.002.
So within that check box, include a definition of recusal, etc.
According to section 2-273A1, recusal is required when an official has a conflicting matter
and conflicting interest in a pending matter.
So according to section 2-29, no member shall be excused from voting except for a lack of
information except on matters involving the consideration of his or her own official business
or where his or her personal interests are involved with Chapter 171, and in these instances
he or she shall abstain.
It says 2-273 is the ordinance, what's 2-29?
That's also an ordinance, but that's administration and conduct.
A separate city ordinance, not the ethics.
Yes, so we have matters in one city ordinance that refers to Chapter 171, and then we have
pending matters as it applies to our code of ethics.
I think that really puts city council members in a difficult position, and this is why.
I think Laura and Ron and Don, you three were on this, advisory opinion request on December
12, 2018.
So on the same day that, the city council held a work session and discussed the gateway
to-
Oh, well, before moving on, I wanted to say the 2-273 and the 2-29, I think under 2-273,
it's saying pending matter, you can't have a conflicting interest on a pending matter
under the provisions of 2-273, but on 2-29, it's when you have a lack of information.
I think it's just too separate, it says pending matters and matters because it's over two
separate things.
It's over violation of the ethics ordinance as far as having a conflict of interest, and
then it's about whether you recuse yourself because you have, well, I guess you have a
conflict under the text code 171.
City council people have to follow both, and that's why it's separate, so it is covering
separate things.
Yes, it is, but technically, it really isn't.
We have the proposed Oak Gateway small area plan for the city of Denton, and the question
for the advisory opinion was, "Was it considered a pending matter?"
So question, considered a pending matter, the board of ethics response was that the
SAP is not an application contract proposal or legal case, and the panel finds that the
SAP is not a pending matter.
Is a city official required to file an affidavit of conflict of interest and abstain if the
official owns a substantial interest in real property or business within the proposed boundaries
of the SAP?
And the board of ethics response was substantial interest is not used in the ethics ordinance.
The panel assumes the request refers to conflicting interests, and because the SAP is not a pending
matter, the city official is not required to file an affidavit of conflict before deliberating
or voting on the SAP.
And then the third question could be...
I think Don...
That's fine.
Can I please...
I believe the reason that we didn't find that it was a pending matter is because the area
was so large and included, and it wasn't something that was going to come up specifically before
the council.
I'm not questioning...I'm using it as an example.
Well, I think it's just somewhat of a misrepresentation of what we found on that panel.
Can you hold and let me go on, please?
I'm sorry.
No, I'm glad you're doing this, please.
Let me get to the end of this section, okay?
Is a city official required to file an affidavit of conflict of interest and abstain from deliberating
or voting on a pending matter pertaining to OEP, SAP, if four or more officials are on
real property?
And the board of ethics response was the same.
But this is what I find really intriguing, that there is a caveat on each finding in
its wisdom.
This opinion pertains only to the relevant sections of the city of Denton ethics ordinance,
it is not intended as legal advice, and does not involve any party obligations that may
exist under applicable law, which is chapter 171 and others.
So all parties are encouraged to consult competent legal counsel concerning their obligations
under the law.
And why we put that is because we are not, like I don't know if you remember, Don, you
were on the panel.
You can get a second opinion.
Yeah, and we are not the lawyers for the people that ask for the opinion.
So we wanted to make clear that, because we were all lawyers on the panel, we wanted to
make clear that we were not their attorneys under 171.
This was just before the Denton code of ethics.
We didn't want them to perceive that our opinion was our legal opinion to them as far as a
legal matter if they were, I don't know if it's criminal under 171, but for like any
kind of case under 171, they should not take our advice because that would put us in bad
positions as attorneys to be giving legal advice to someone who is not our attorney.
Am I right about that?
That's why we put that.
That's exactly my point, because it put the Board of Ethics, because of the discrepancy
in the language, it put the Board of Ethics in a difficult position when they were coming
to their determination.
And it also put City Council.
Which ones do they follow?
Well, they have to follow both.
Yes.
So let's be clear.
So we are talking about the different…
Yeah, the thing is, with our advisory opinion, and they do vote, and there's a problem
later, it gives them, if someone complains about it, it gives them, I won't say an
excuse, but it gives them a viable reason to say, well, the advisory committee said,
yes, you can do it, you know, the advisory opinion.
They can use that as a defense.
Right.
So I think it should be clear.
Avoidance of appearance of conflict is the next checkbox, and the ordinance does not
specifically state that officials shall avoid the avoidance of appearance of conflict of
interest.
And I think on this one, I would say that the whole code is about avoiding the appearance
of conflict of interest.
But going back to our last hearings on Councilmember Metzler and Councilmember Armator, the fact
that their whole defense was we didn't make any financial gain, I think that the ordinance
does cover appearance, and there it was an appearance because they worked for the business
entity that was being voted on.
So I think it might be an aspirations point, but I think that since our ordinance is pretty
broad in a lot of places, I think it does strive to avoid the appearance of conflict.
It's not clear.
And it can't.
If it's in the aspirations, if it's in the expectations, it cannot be the basis of a
complaint.
So the last one is administration and enforcement.
So according to Section 2-277, scope of authority, the issuance and enforcement of the ordinance
shall be only upon majority vote of the Board of Ethics in accordance with the rules of
procedure and enforcement shall be through any of the sanction options listed therein.
I could not find anything that talked about sanction options for someone who violates
a subpoena.
The issue in that is we have no enforcement power, and Alan Borkiewicz talked about this
and we talked about this in a previous meeting.
Me in a criminal case, I filed a subpoena for a hearing Monday.
If that witness doesn't show up, I send a cop to go arrest that witness.
We were given the power to subpoena.
We have no enforcement under the law.
We are not able to enforce a subpoena.
So I think that that is why we have talked about this before at previous meetings.
So there's nothing that can be done unless you ask the Texas Legislature to give citizen
committees the power to subpoena through law enforcement or something along those lines.
So that's the problem we have.
We were told we have to have a subpoena, but we don't have any way to enforce it.
So why do we have sanction options even listed in the Code?
I believe, and I spoke with Trey about this before the meeting, Alan Borkiewicz, when
he made the ordinance, he's like, "I have to put everything in the charter in the ordinance."
The charter says subpoena power, I have to put subpoena power in the ordinance.
Unfortunately, there's nothing you can really do as a citizen committee if they violate
a subpoena.
And I'm not sure, I mean, I don't know how you really correct that, but it's just, I
guess the way it is.
Well, it does say in the procedure manual that it could be considered.
I believe to respond to a subpoena could be considered a determination.
And I think when we made the rules of procedure, we discussed that that's the only sanction
we really have is that they didn't comply with our subpoena.
Yeah, but one of the things I found, the subpoenas sometimes give them the opportunity to show
it to their boss, their employer, it gives them an excuse to be able to come or to be
able to even get paid when they come.
But even as a criminal defense lawyer, it's impossible almost for us to enforce the subpoena.
So I know we had discussions on it, it is a challenging issue, but it is there in the
charter.
So how do we address it?
And according to the board of section 2-282, the board may impose the following sanctions.
Letter of application, letter of admission, letter of recommend may recommend to the city
the suspension of the official or the vendor may be deemed ineligible.
So are these strong and meaningful remedies?
I know we've had a lot of discussion about this as well.
So just to reiterate my finding and my conclusion, once the requirements are included in the
ordinance, they're couched in completely different terms.
And some of what you said Laura, perhaps they are there, but it needs to be clear.
The ordinance does not include all the requirements of the charter, and before moving forward
to make any additional recommendations to that amendment ordinance, I do think it would
be very, very helpful that we have an outside legal counsel to review both the charter and
the ordinance to ensure that the current ordinance meets all the requirements in the charter
and to provide a cross reference so that we know what we're referring to.
All right, thank you.
I'm not, I promise I'm not trying to beat up in you, and I'm not like a specific champion
of the ordinance as written, but I am a champion of not spending too much money, not wasting
time and not changing the ordinance to make it worse than it is currently.
I only want to prove it.
I don't want to add anything where we don't know what it covers or counsel.
So that's where my opinion is coming from.
My thoughts are, my understanding is that Alan Berkowitz worked with the charter and
then drafted the ordinance, and so we've already had a legal counsel do that, and my honest
thoughts about your presentation as I voiced during it is that I think all of this is covered
by the ordinance.
So I would think that this would not be the route to take and we shouldn't, I'm not saying
we shouldn't change anything.
We actually got some advice from counsel yesterday about other things that they want to change
or want us to look at, to change the ordinance, but I don't think that it would be necessary
to hire an outside counsel to look at the charter versus the ordinance.
But I would like to open it up to discussion and see what the rest of the board thinks.
First I want to say thank you because I know that she put a lot of time into that.
I also think that there's a step here that we're not talking about, charter review made
recommendations, Alan Berkowitz worked with it, and then it went to counsel.
Have you ever watched that tape on that January morning in 2017 when they made the final amendments
to the document?
Are you asking me?
No, I have not.
You should watch it.
Because they got in the weeds, they chopped things around, it changed a bit.
So, I have a hard time blaming Berkowitz for what ended up happening because they just
kind of went too, it changed a lot at that point.
So that's when it made changes.
And at that point, some of the definitions became, I think, too narrow to be enforced.
This pending matter deal, that's one of them.
So, that's what others have to say.
I'm curious about the enforcement power.
I don't want this to be a bully pulpit or anything like that, but-
I'm sorry, you don't want it to be a public-
A bully pulpit.
A pulpit.
I would say it's essentially shaming them, though, and that wouldn't affect a lot of
people.
I'd be curious to see what everybody else is thinking about, maybe, how far, how much
further should we go?
Should we attempt to have some enforcement power and then just shame them?
Yeah, and that's why I wonder if we can have that much power.
They are elected city officials, the majority of the city, or their precinct, elected them.
But in Spain, it's just to bring them in to talk to us, right?
Okay, so the subpoena is actually for, like, documents.
Yeah, so the subpoena power under the ordinance was for us to get, like, documents, for instance,
you know, tax records or bank records or things like that.
Okay.
And that's what we had talked about that-
So we're not talking about affecting anybody personally to come in who's refusing to justify-
No, well, actually, I'd have to read back over, honestly, to see if it would also cover
that, but the main thing is, whether it's documents or people, it's kind of more, it's
kind of a suggestion, really, because there's not a lot we can do to enforce it.
Right.
And then as far as the, like, the public shaming, the sanctions that we have when there's a
violation of the ordinance, so that's what you're asking for, asking if there's anything
else that could be done.
Yes.
And I'm-
I realize we don't have police power or anything like that.
Yeah.
We just have newspapers.
But do we dare go that extra mile and see if we can have that power?
That's all I mean, it's open to discussion.
Is that going to, Troy?
I'm sorry, Robert, you're an alternate.
I'm not sure-
Don't call him Robert.
Ron?
I'm not sure if- I think we're trying to solve a problem before it happens.
I think we need a little bit more experience with what happens when we do sustain a city
official or a city employee or records and be guided by the results of what happens and
what doesn't happen.
But right now, I think we're trying to craft this movement into something that's not really
a problem yet.
Also, on a different note, I think that when we put together all of the changes and are
ready to submit those changes to council, a different law firm other than the work with
firms to review it entirely before it goes to council.
Any other thoughts on this?
But if we make changes and it goes to council, is the same thing going to happen again?
They're going to put it on the chopping block and take things out and make it- that's really
where it went awry.
I think the answer is yes, because they're not going to all agree.
It's not something we can control, though.
I think we need to go on record.
And whatever they do is whatever they do.
Umesh had said that they wanted us- well, it sounds like they gave a little bit of different
advice or instruction when I went up there, but it sounds like they don't want a piece
of mail anymore.
They want it all at once.
And that they said just send everything we have.
So if we send everything we have, I can see they're going to agree with stuff.
They're not going to agree with stuff.
So if we send everything we have, then it's on record.
That's what we've suggested.
And then, I mean, they would take it from there.
They're the ones that will be voting.
I don't think the code is clear.
I just, having read it, I don't think it's clear.
I have a hard time understanding what it's saying.
I think some of the definitions are too narrow.
Some of them are missing.
I would like to see a model code.
And I know there are good ones out there.
I have a great- I brought an example of Westler's definition of conflict of interest.
I'm very interested in looking at it.
He has a whole- Robert Westler is a guy from- he spent his whole life working on city ethics,
which is a very specific kind of ethics.
And he had a project where they wrote a model code.
And so when you go through his code, he has the definitions.
And then, like, this one's conflict of interest and half the page is the definition.
And then the bottom part is all his comments about why he did and didn't do things.
So it's really wonderful to kind of step through and look at all the things that he thinks should be included.
I'd like to do something like that.
That would be my preference.
It wouldn't cost anything.
You don't have to bring anybody in.
If council wants to put it on the chopping block, that's what they do.
But we went on record saying that we think these things should be in there.
So those things are out there.
They're easy to find.
It's not difficult.
That would be my preference.
I'd love to see a copy of that.
Is there a way we could get-
Yeah, if you just enter into search engine Robert Westler and it's W-E-C-H-O.
I always spell it wrong and it has to come back and correct me.
And then you just look online and then he has a blog in the sidebar.
What I was thinking more of is if maybe Betsy could get that link from you and she could send an email out with it.
Is that-
Yeah, I'll send it to her.
Okay.
Is that-
Yeah.
Is that all right?
We can do that.
Okay.
I would like to kind of narrow what we're doing here tonight.
We're getting into almost seven here.
So we talked about some different things.
Conflict of interest was brought up, we talked about subpoena.
We talked about, well, actually waiting or not waiting on subpoena.
Deborah has presented this.
What are people's thoughts on hiring outside counsel to- and this is the voting members, not alternates,
because it's part of the liberation of what we're going to act on tonight.
As far as voting members, what are thoughts on hiring outside counsel to look at the charter versus the ordinance?
I think it's a waste of money, personally.
I think we agree on something.
I'm sorry, what did you say?
That it would be possibly a waste of money.
And Deborah, thank you very much.
You did a lot of work, but just differing opinions.
And so I think me and Annette are maybe on the same page.
Is there anybody else who thinks we should hire outside counsel to look at the charter versus the ordinance?
I'll just reiterate what I said before.
I think we need outside counsel to look at our final product before it goes to the council,
but not necessarily just for comparison to the charter versus the ordinance.
And I can see that. I think doing it now, like preemptively, I feel like that would just cost more money
versus if we decided after we have everything we want in the ordinance to hire an outside counsel.
I think that would kind of be more cost prohibitive and maybe more beneficial to have them overlook the whole ordinance, like you were saying.
So I don't -- unless there's anybody that hasn't spoken, it doesn't seem like we are going to vote on that tonight or there's going to be a motion for that tonight.
Am I correct?
So, I mean, she does bring up things that we have talked about a lot as far as things that we want to change.
Is there anything -- and let me look at the exact to make sure I'm not getting outside of the agenda item.
I think it's just generally recommendations for changes to the ordinance.
I know there's been talk about subpoena and Annetta has brought up conflict of interest.
Is there anything that we want to focus on next?
Because I think that's the best way we've come up with changes to the ordinance is if we kind of pick something and try to focus on it.
Conflict of interest we never came to an agreement on.
Did we want to try to pick that up more or do we want to try to move to subpoena or talk about pending matter or something other than that?
I know you want conflict of interest.
Can I just say, I'm going to copy some of this.
Would you like to pass them out?
Because it has a link at the top.
Yeah, sure.
And I really love the way they define families.
I would say that we probably might want to put close to the top of the agenda is that the pending matter scenario because that seems to be the basis of a lot of conflict.
It's based on what is and what's not and that definition of how it really affects things on what is.
I think it's defined but it's not defined.
I can see where those have chosen to use one aspect of it as their basis but others differ.
And I think because to me, there's doors open there that are not completely closed.
At any time somebody can use that even though we as a group have said certain things, I think there are those.
I think that needs to be more defined and close to where those loopholes, as you will, are not out there that they can simply use.
And I think using that, not just my opinion, would lead us into pending matters, would in some form lead us into the conflict.
I think all of those will tie in together in the end.
Some will take care of the other because there's some differences but they still will tie into each other at some point or something.
I think what we should remember in pending matter is we need to be able to give notice to city officials of what is a matter.
Pending matter, they came up with the definition and it's pretty specific.
If it was just changed to matter, we'd have to think of does it need to be defined in the definition and how do you define matter?
Matter could be really broad and so how do they have notice and then how do we determine that?
So I think that's something we should consider when we talk about changing pending matter.
Is there any more opinions on what we should maybe tackle next as far as recommendations?
Conflict of interest has been our biggest impediment to the lack of a term administering the ordinance, so it could be conflict of interest, I think.
We've had a couple meetings on conflict of interest and a lot of discussion about it.
I think it comes down to we all have to agree on something, and I kind of feel like a broken record,
that puts everyone on notice and that we know how that we can also be able to have a hearing about and determine.
So it can't be kind of too nebulous and I think that's where we kept on hitting, not being able to move forward in the previous meetings where we discussed this.
So I'm taking it that it's still conflict of interest is big and I think pending matter relates to conflict of interest.
I guess how do we want to, we've had, I don't know if Debra is going to want to present again.
I'm sorry. I don't take it personally.
I guess we need to, I have not looked over what Annette has given us as far as conflict of interest.
And I think we probably all haven't looked over it as far as preparation for tonight.
Is that something we want to look over?
Is there anyone that thinks they might have some concrete recommendations they want to try to bring to the board to start working on this?
Because I kind of feel like us just talking about it, we just get into the same circular arguments that we've gotten into the last two meetings.
So I think it's better when we're working off of something, whether we're agreeing on it or not.
And I see Rob is raising his hand. Are we deliberating right now or is he just...
I want a point of order.
Okay. So I think, I'm not trying to be mean, but I think under the rules, since you're an alternate, I don't think you can have a point of order.
Unless I'm wrong. I don't know, you might know the rules of rough procedure better than me.
I won't go against counsel, but I would address a point of order for anyone that's permitted here.
Being an alternate, but appointed by the counsel, point of order could be accepted, but I'll yield to counsel.
If not, then I'll wait till afterwards.
I guess we'll just, I think we're going to call counsel. That's okay.
I didn't hear him say anything.
Oh, oh. Can you do a point of order or?
What was the thing with that counsel we needed to refer to?
It was the counsel retreat in January of 2017, I believe, before the ethics ordinance got enacted.
And they had the final document. I don't know who wrote it. It's very interesting if you watch it.
They get into the weeds within about 10 minutes.
And it's just...
Jumps like garbage.
No, I mean, they were, yeah, it was, it's hard to watch actually, but you can see how they start chopping things and cutting people off.
Yeah, you need to watch it. It's interesting because that was how we got our ordinance.
That's when they finished writing it.
It's archived in the, if you look at the city of Denton website, it's archived. It's pretty easy to access.
I think under Robert's Rules of Orders, it would only be the members that are participating in the deliberation.
Okay.
Thank you.
So I think we need to use our time wisely. What do we all think our next step should be?
Well, I agree with what you said. It's better for everybody to get something to work off of and either change or modify as opposed to getting seven things to look at and change and modify.
So what we need is something to look at collectively and then start making changes from there.
And I had, I had considered, I was going to bring up tonight that we're at the end of October and then we're moving into November and December and holidays.
I was considering like reconvening in January. So I wonder if there, you know, if, you know, we have, we have this, this fit and that has given us, given us tonight that we may or may not want to use when considering conflict of interest.
We have some sort of ad hoc committee maybe that looks into conflict of interest and maybe and be able to get everything back to the board in time to review and then in January maybe have a substantive discussion on conflict of interest and see where we are there.
And we got something from Deborah and I think we've all talked a lot, we talked a lot about what was on that, what we, what our thoughts were on that and, and we can kind of think about what, what we think we could all agree on as far as Deborah's proposals and then look at maybe a new proposal.
You're shaking your head. Do you have something?
Who would, do we have volunteers that, and I guess starting an ad hoc committee, is that all, is that okay, is that all good? Okay.
Is there anybody that is interested in being on an ad hoc committee to develop recommendations for conflict of interest, Annette?
I'm Rob, Bob. I know I'm chaired but I have two young children. Oh is he, oh he's an alternate. Can you have alternates on ad hoc committees?
Okay, so alternates can be on ad hoc committees. If we're making one up during this meeting, can we hear from alternates that want to be on it? Or is this something we could do after the meeting?
I know. I am, I'm not an expert on Robert's rules and I don't claim to be. As a part of order. That's okay.
So how do you suggest we could make an ad hoc committee issue for it? We wait and like, I email people to email me personally back after the meeting or can you do it at the meeting?
I mean I think you can form the committee here.
And you can take volunteers that are not board members? I know they can't deliberate or would I just form the committee with board members and then after the meeting we can allow alternates on ad hoc?
Well I think you can form the committee with alternates as part of the committee and then if they choose not to serve because they're unavailable to they would have that option to ask to be removed from the ad hoc committee.
Okay. Alright. So if Bob raises his hand during the meeting when he's not supposed to be deliberating, can I add him to the ad hoc committee?
So I can start the deliberation.
I should have taken your advice and asked to ask the alternates to sit separately. Well I guess would it be okay if I just say we'll start an ad hoc committee and maybe I'll send an email or Betsy will send an email.
That would probably be best especially since we're not posted for it anyway. Okay. I mean that's kind of been brought up as new business but that could be put on a future council agenda or a future board agenda item.
Well I guess it doesn't. That the staffing and outline and actual I guess you know what we're asking the goal of that committee to be because I mean we're not posted to establish all of that.
Okay so we cannot do that. I think I would recommend against establishing it tonight. I think that's something that y'all can discuss is what you're going forward is how you're going to make changes but if you're going to take official action you're not posted to take official action.
Okay. I mean it does say take necessary action. If you're trying to speak into this thing. On F it does say take necessary action confirming potential recommendations council for a minute. So I guess if we're taking action it has to be to confirm recommendations.
Right. That's the way it's posted right now. Okay. Alright. Thank you very much. Before you sit down Traca this may raise you. Concerning the alternates what procedures in place or what policy do we have available? Do they have available where they can make commentary? Is there anything at all that allows them to?
I would think just as any other citizen. Right. It would be it would be if they're if they're here at the meeting they're basically here unless they're here filling in as part of their role as an alternate if they're if they're but like tonight we have a board. Technically they're here as citizens so they wouldn't have the same opportunities as citizens have.
It would also have the opportunity as alternate members of the board to present their comments to the chair ahead of time and that can be presented at the meeting at that time with the discretion of the chair. I know that's the way the council's done in the past like one of the council members is absent they'll send their or know that they're going to be absent they'll send they'll send their comments to the mayor ahead of time.
Well the citizen is here then what's the process.
Well technically citizens don't necessarily get to participate during work session items. Now sometimes the chair has allowed citizens to speak in some boards and commissions another that's happened in the past on some of the council boards that they've allowed citizens to speak on work session items.
But we haven't had that process up here now. So in other words there is nothing in place for that. Right. Thank you. All right so go ahead. One of the things that I've come up in one of our hearings and that's what the burden of proof is on some of the allegations and what it tells us in.
And ours it says it accepted is true and I'm not exactly sure what it accepted as true means and does anybody have any thought of what that might be or what it is.
I'm at the one of the first meetings I'm not sure if you hear that I brought that up to Alan Berkowitz and I forgot his reasoning for why it was like that but we had a vote on one of our one of our hearing.
I think what he said was that that was part of the council trying to make it where average citizens could understand you know because if they put probable cause clear convincing evidence beyond reasonable doubt there's I guess four of us that would understand what that means but not necessarily a citizen.
So I remember him saying that but I have the same thought of burden of proof I almost think it's just I think it's kind of clear convincing evidence to be honest because I think it's either you think it happened or you think it didn't happen.
But I don't I'm not sure if we would want to put in clear convincing evidence because then we're opening up a whole can of worms of explaining evidence to non lawyers.
I'm sorry preponderance of evidence is what I meant to say out there. I was wondering yeah yes sorry I'm a criminal lawyers I never deal with any of that anyway okay so I'm wrong I wanted to correct myself. That's right some of the things that I write sometimes I use the term is more likely that not something happened or didn't happen or something is or something isn't you know so that is pretty clear to the average citizen I think.
I hate to sanction someone but more likely than not if it happened. That's kind of what preponderance is right.
Well and I don't I don't know what how we explain it to a jury. Yeah I don't know what the other lawyers on the board think but when I read this I almost think it would be a preponderance of the evidence just 51% versus 49% just like if you just think it happened.
You don't have to have much more of a burden than that which and I can I can see an issue with with with that.
So, like circling back we have the penny matter conflict of interest and any burden proof might be something interesting to discuss as well.
I had the great idea of an ad hoc committee but doesn't sound like we can we can start that.
I don't. I don't want to keep everybody here forever tonight, and I at seven on nine p.m. I don't think we're going to come to have a.
I don't think we're gonna take any necessary action for any more recommendations for the ordinance. So I again I'll go back to the path forward.
And you said we have to start an ad hoc committee we have to have it on an agenda or what are the ways could we have members of the board work on potential potential ordinance changes before the next meeting.
I'll admit that I'm not prepared for this discussion because this is this is the first that I was hearing about an ad hoc committee.
But yeah I mean I I'll be honest I kind of came up with that tonight as a way we could streamline some of these things we want to change.
Well we can do it with a motion right.
Can we.
Well the problem is we're not posted to set up an ad hoc committee or set up to talk about changes that you wanted the board.
But at no point was an ad hoc committee previously mentioned.
But if an ad hoc committee is one of the mechanisms that we are going to use to change the effective recommendations of the board it's a fine line.
It's a fine line I it comes down to how broadly you think the agenda captions posted personally my reading of the agenda captions that you're to talk about the changes you want and to take necessary action regarding those changes.
I don't know that there's anything in there that would allow you to create an ad hoc committee by the posting on itself.
But conversely is there anything that doesn't allow us to.
Conversely it would just be your reading of it and if there if there was someone that would might consider that a violation of the open meetings act.
I definitely don't want to violate that that be on my agenda.
I mean is it OK if if we have a very interested board member to say that they will work on some recommendations and circulate them to the board for the next meeting.
Certainly I think I think all board members can do that.
It would necessarily just be one of you. I think I think I think it's almost expected that the board members are working on this in their off time and you all are coming back to discuss as a body at the post meeting.
I don't think that it is expected that you all just kind of set this aside completely on your own in between meetings.
All right well I have a proposal and I'd like to know if this is violating anything.
I know Annette has has has shown a lot of interest in conflict of interest and I was wondering if she wanted to prepare something to circulate to the board.
And if there's others that also have that maybe get it to me and Betsy say we have a meeting at the end of January.
Get it to us at the beginning of January and then me and me and Betsy and you mesh can come up with an agenda to address what we'll do is conflict of interest.
And and any presentation board members or alternates have regarding that maybe we can listen to that.
Does that sound like a plan to everyone.
So it's every time.
Well and I think anyone including citizens could send stuff to us.
Right now I would caution against people trying to send the board.
Yes yes.
As a body something because that opens up more.
I guess.
Open meeting tax violations but board members or alternates can participate.
Certainly.
Me the chair.
Send them to you the chair and it can be considered as a for the next meeting.
What about what about those other areas you identified if we want to take those up too.
Well I would suggest we we we take this in steps.
Otherwise I feel like we will have long meetings that jump around and don't accomplish much.
And that would be my suggestion.
If anybody has some different.
Or this is offered to be the kind of the intake repository of that stuff.
OK.
And you mesh.
I think we've we've kind of touched on this before that you can send mesh.
Proposals and maybe me and you mesh can get together and come up with an agenda based on those.
And I would I would think for.
I mean we want it by December for that maybe by December for the January meeting.
Just so everyone has.
So me and you mesh can come up with a plan and agenda.
And then we can send it out to the whole board so the whole board can look at what we what kind of proposals and suggestions the board has made.
Because because honestly sitting here just all off all of us kind of talking off the hip.
Not you know it just isn't very productive.
So so what does everybody think about that.
I know I think I cut you off Larry.
You answered it though in the process.
I guess you know let's see Christmas is what the 24th so maybe December calendar.
You have to send it on Christmas Day.
Citizen Rainer says yes just by December 15.
Yeah well December 15th is a Sunday.
So 16 by the December 16.
Right.
And then.
We've talked about.
And then we'll come up with a date in late January.
It's usually been doing the last Thursday of the month.
And I think we have in the past sent out email just to make sure there's enough people available.
And we'll do something like that in January and send out an agenda and what kind of we're going to go over.
I think this is a good solution to hopefully keep us moving forward.
Anybody against this.
Anybody have any other suggestions.
So we're not meeting again until.
January.
But if you're on your own you'd like to take up proposals and come up with stuff.
Send it to me and we'll try to get this conflict of interest improved.
And I will say that's that's all I'll accept is a proof improvement.
All right.
So anything else on these items.
When is the orientation going to be in January.
Do you have a date on that.
We don't have any date yet.
Will it be a video or will it be a live.
First of all.
We thought about this and we'll have to find out how much it's going to cost us.
And.
For city auditors office can afford it.
But we'll let you know shortly.
All right.
So is there anything else under agenda item.
That we want to discuss tonight.
Without hearing anything.
Agenda item G is regarding changes to the rules of procedure.
I don't think we have any more changes to the rule of procedure right now.
I mean maybe later when we change the ordinance we might.
I unless anybody has any suggestions.
I don't see anything.
That needs to be changed.
Any thoughts on that.
All right.
So we've gone through all the agenda items.
As far as the rules of procedure.
Reconsideration oh yes that's right.
And.
Fortunately I think you've been out.
And.
We brought.
Your opinion on that and we decided to table that discussion until you were.
You're here at the meeting since.
Your suggestion.
Let's see so.
The reconsideration is.
In the rules of procedure number.
Under I guess under hearing.
Hearing which is.
Section a subsection 28.
It's page 12 on my rules of procedure.
Which I think are the most current.
It says request for reconsideration.
So I'll follow the procedure established by the.
Chapter two article.
Eleven section two dash two eight three.
And maybe you could kind of explain to the board.
Because I don't think you.
We've talked about it yet with.
The current faces on the board.
What you want change about reconsideration.
Well for reconsideration.
Of any hearing decision.
In administrative law it typically requires that.
There be a mistake of that.
Or a mistake of process.
Committed by the body that made the decision or wrote the decision.
The hearing officer or the body of the set.
It does not typically.
Allow for new evidence.
To be presented.
And that's the way our ordinance is written.
And in the way it's written.
Only specifying new evidence.
It doesn't speak to the fact that.
That an error could be made and there's no way to address.
For the person to address that error if they receive one.
I think it needs to be.
The reconsideration article needs to be brought more in line with.
The accepted administrative law.
And.
You know.
In terms of new evidence.
New evidence.
Could be.
The subject of a new.
A new appeal.
At this time.
It shouldn't be.
The product of reconsideration.
I guess.
Maybe I'm not correct me if I'm not following you right but.
What if there was.
New evidence that would.
That would show that the person.
Like say we found them.
We found the sanction.
We found them in violation of the code.
What if there's new evidence that came up.
That they didn't violate the code.
Like some evidence.
That was a sculpatory toward them.
Would.
With that.
Do you think that should be a reason for.
For reconsideration because I see if we find oh there's no violation.
They could come back with new evidence to say.
Is there a violation under this evidence.
But if we found that they were in violation.
And then there's new evidence that they actually weren't in violation.
I guess that's where I'm like well do we need to keep that in there for that situation.
Well I mean in the situation you just described.
If somebody alleges that there's new information that would have an impact on the decision.
Then one would think that everybody.
Should have a shot at determining whether or not that new evidence is valid.
In other words.
It almost calls for a new hearing.
So to make both sides.
Available to the information both sides.
Be able to comment on it.
And another decision.
As opposed to.
You have to reconsider based upon one side bringing new evidence.
That's my homework.
And so reconsideration is also in the ordinance section two dash two eighty three.
So.
Fortunately it hasn't been an issue yet.
And you know you allude to something in your question was the new evidence available when the appeal was found.
Or was it not.
And I don't think that we have the resources to really determine that.
Although.
Yeah.
Well and I think you know in criminal law like yes there's new evidence.
But I imagine in civil it's probably not the same as far as administrative.
If they're like in administrative law in your experience.
I mean is there ever a case where there's appeals on new evidence.
Or can there be like rates on on judgments as far as new hearing new evidence or not.
Yeah.
That's probably why I'm coming from a different mindset.
Yeah.
And mine and you can do a motion for a new trial for newly discovered evidence.
But in that case to see the whole party didn't have a shot at that new evidence.
OK so and I'm looking at the reconsideration.
So you're saying that like when you have a reconsideration is it just.
OK so I guess it's in my sole discretion.
You can have a new so I so you're saying we've had a panel decide on something and then it comes to me I can just overrule their decision based on based on this new evidence like that is that that's the problem.
So what I'm saying is just a hearing to say the hearing say the ultimate decision has a factual error.
Or in coming to that decision the board makes a process error and then that's pointed out in the motion for reconsideration.
Those are those are the two areas where reconsideration is typically requested but not for new evidence.
OK.
I mean it's possible to see that that that after the decision is issued a person might find that oh well this is this this is a factual error that the board rule on that would have changed things or the board didn't do this process and it should have.
So you mean it should be more broad than new evidence.
Well it shouldn't be new evidence it should be either an error of fact or an error of process.
Well I think in order to change that on the.
The rules of procedure because the rules of procedure.
Reference to dash 283 that it's it would be a change to the ordinance.
And so I mean I would add it to the list of any matter conflict of interest burden proof reconsideration.
And we've already talked about coming back and discussing conflict of interest in January.
So would it be OK to put reconsideration with the other things that we will address at a later time because we can't do everything.
Once unfortunately.
But I haven't I've added to the list of things we need to consider for future meetings for changes.
I appreciate it.
As far as far as pushing it out past conflict of interest.
I thought you were talking about.
Oh adding.
Well I.
I mean I'll tell you about what we've decided I think conflict of interest is the biggest thing is going to take the most time and penny matter probably will play into conflict of interest.
I think reconsideration and burden of proof would be would take less time and are going to be easier to decide on and vote on.
We were in previously and I don't know if we had decided we'll work on conflict of interest first.
I don't know if we can jump back up to that and change that.
But my thoughts would be if we're discussing conflict of interest in January we probably won't have time to discuss other stuff based on our previous meeting.
If we wanted to tackle reconsideration or burden proof which I think will be quicker things for us to decide on and easier for us up to all agree on.
I mean we could and we can maybe start with that and then go into conflict of interest. I guess I'll leave that up to the board.
Perhaps reconsideration could be added to the ad hoc committees.
We do not have an ad hoc committee.
Well.
We have ad hoc people.
How do I word that?
I think conflict of interest first and then burden of proof and reconsideration later.
And I think those two we could put together and I think those two are going to be pretty legal because I mean they are legal burden of proof is a legal term and reconsideration is kind of a legal term too.
So I say we keep the path we're going as far as conflict of interest and we have the December 16th date to send information to UMESH that you would want to present upon changing conflict of interest.
And we will still and then meet in the end of January and then at the end of that January meeting you know we'll see where we are in conflict of interest.
And we can decide from there if we want to if we have something we want to bring that we want to put together for council or if we want to maybe address one of the easier issues at the next meeting and then get back to conflict of interest.
I say we just wait till January to decide that.
I'm not trying to be a dictator though if anybody has any other opinions let me know.
Okay.
All right.
Okay so back to the agenda anything else about the rules of procedure still being on agenda item G.
All right so I think we've gotten through the agenda.
Do we have to have a motion to close the meeting?
No motion?
Okay well it is now 729 and I said we'd be done at 730 to respect all of your time and effort and thank you for everybody for coming tonight and we will adjourn at 729.
Thank you.