By Kim Hilsenbeck.
Expressing disappointment with his fellow council members, a Kyle councilmember filed a complaint about what he calls “questionable ethical practices.”
District 3 Kyle City Council member Chad Benninghoff sent an email to the city’s Ethics Commission last week after a meeting regarding the possible replacement of the city municipal judge.
Mayor Lucy Johnson, though, disputes Benninghoff’s claims, saying he failed to cite specific incidents when making the charges.
Still, Benninghoff has continued with his ethics filing.
“I have been a council member less than five months and have witnessed actions questioning my own faith in city council/government,” Benninghoff wrote. “Community members and city staff have expressed their disappointment and lack of faith in our city council in the matters below.”
The letter recounts two instances where he felt council members showed questionable ethics – one where they tried to hire a city attorney whom he said lacked the proper qualifications; the second involved the municipal judge position.
Benninghoff’s complaint followed a recent special called meeting to interview judges for a position held by Sundra Spears since January 2004. Her contract ended every two years and was automatically renewed, which is legal under Texas law.
In September, council member Samantha LaMense asked the position to be put up for review. The move would allow Spears to reapply for the job and give the city a chance to meet with other candidates.
Four candidates were scheduled for interviews during the Nov. 7 special meeting, including one who drove in from Victoria, another from Round Rock. Two others were from areas closer to Kyle.
But the candidates never got the chance to interview as council members never went into executive session. According to an audio recording of the open meeting, the city leaders could not agree on whether to move ahead with the interviews. Mayor Lucy Johnson was out of town on city business.
When Mayor ProTem Samantha LaMense moved to go into executive session, seconded by Diane Hervol, Benninghoff said, “I just have some things that I need to kind of get off my chest.”
Since a vote did not occur, council was still in open session.
Benninghoff and council members then discussed whether opening up the judge’s position is legal or, at minimum, ethical. The conversation lasted more than an hour and all judge candidates were sent home without being interviewed.
Benninghoff submitted his complaint to the Ethics Commission, comprised of Kyle residents who review such cases. He wrote, “[It] demonstrates lack of accountability, professional courtesy, and good faith by the city council.”
He maintains Spears was not informed that her position would be under review at the end of the current two-year period, which expires Jan. 24, 2014.
“When asked, Judge Spears reported becoming aware of her position opened to the public for interviews from a news paper (sic) publication,” Benninghoff wrote, referring to a September Hays Free Press article. At the time, Spears was not available for comment.
City Manager Lanny Lambert, however, told council during a September meeting about Spears’ job being under review, saying [Spears] was notified and “she was not happy.”
Lambert said he spoke with Spears personally because he thought it was important enough for a face-to-face meeting.
Johnson concurs, saying she believes that Spears and her staff knew about the review.
Benninghoff said a records request showed there is no documentation – interactions, evaluations, personal email – from the city to the judge, since 2004 when she signed the agreement to take the part-time municipal judge position.
“There is no written notice from Council or city staff, of council intentions, to open the Municipal Judge position to new applicants,” Benninghoff said in his complaint. “If Council had formal intentions of not automatically renew (sic) the contract period as done previously since 2004, written notice should have been provided.”
Council voted in September to request Letters of Interest and Statements of Qualifications for the municipal judge position. Benninghoff was absent at that meeting, and Councilmembers Becky Selbera and David Wilson dissented.
Spears’ compensation this fiscal year is $24,213.54, plus an $85 cell phone allowance. The city also pays for her share of federal employment taxes, Medicare and health insurance. According to Sandra Duran, the city’s human resource manager, Spears is considered a city employee who receives a W-2 form for the Internal Revenue Service.
Benninghoff said he filed the complaint because he wants to change the culture of the Kyle City Council and how it operates.
“People are questioning the council’s ability to make ethical decisions and question personal motives of individual council members” he wrote in the complaint. “Community members have identified council’s course of action or lack of action as another reason the council cannot be trusted. The council did not act in good faith and professional courtesy in this situation with regard to their municipal judge.”
Wilson also noted that the council need to be careful with proceedings.
“I’m going to throw something out here and you may or may not know, she was the EEOC officer for Texas State University for about eight years ... So when we’re making decisions we need to understand, this is on me as much as anybody else ... This isn’t a patty cake and it’s not student council. There are real legal consequences for what we do here. And I think we’ve got personnel action here that has the potential for being painful to all of us and we need to step back.”
The discussion over Spears’ job began long ago as council members voiced concern, noting that she was unwilling to provide magistrate services on occasional weekends and holidays at the Hays County Jail without more pay, despite an informal agreement between Kyle and the county.
Spears wrote a letter to JP Beth Smith, who schedules magistrate services at the jail, saying she would no longer volunteer magistrate services in 2013 as her contract did not call for that service nor was she getting paid for it. Spears requested a raise in the 2012-2013 fiscal year budget, but did not receive one. She received a 3.5 percent cost of living adjustment, as did other city employees.
In another area, Benninghoff made the complaint regarding an Aug. 2 executvie session. Benninghoff said the council attempted to hire a city attorney without opening the position to all candidates.
“…Council focused it’s (sic) discussion on details, options and pursuit of an offer to hire an attorney not meeting all of the requirements set by the city charter,” he said.
Though he did not give names or specifics, Benninghoff then described how council members discussed how to bypass the requirements for the city attorney position. He said opposition to the method [of hiring an attorney who lacked the qualifications] was met with a council member saying, “I have the votes.”
Johnson disagreed Monday, saying she does not agree with Benninghoff’s recollection. “I don’t recall that conversation where someone said, ‘I have the votes.’ I don’t think that was ever said. I’ve never heard that; I have no idea which council member would say that.”
An offer was extended to the attorney candidate, who did not accept the position. Benninghoff said he dropped the issue at the time, but felt it was relevant to the current situation.
“I question the professional conduct of council,” he wrote. “The council’s culture for conducting business with the city manager, attorney and municipal judge need to (be) more transparent and handled with professionalism.”
Johnson said council member Benninghoff is the only sitting member on the dais who has not been through the city’s ethics training class. Additionally, Johnson said Benninghoff’s complaint was not given as a sworn statement, which goes against the city’s policy.
She also said she believes his complaint is without merit because he failed to cite specific incidents against the city’s ethics ordinances.
“He didn’t show any violation,” Johnson said. “I’m not sure why Council Member Benninghoff is choosing to air his grievances in this way. I think maybe he is sending a political statement.”
