By Amira Van Leeuwen
KYLE — On Dec. 20, Kyle City Council unanimously approved an ordinance repealing and replacing the city’s Code of Ethics Ordinance No. 961 as amended on the first reading.
The city’s Ethics Commission met on Nov. 14 to discuss modifying the ethics ordinance. Mike Rubsam, the Ethics Commission chairman, gave a presentation of those recommended changes at the council meeting.
Some of the changes included the following:
• Defining employment as the performance of work or services for remuneration and includes work or services performed by independent contractors.
• Adding “supported by evidence” to Section 2-181 to read: “A city officer or employee who has knowledge of a violation, supported by evidence, of any of the provisions…” and a sentence at the end of the paragraph that states: “Any failures to report a violation pursuant to this subsection are governed by subdivision VIII, section 2-308, and the criteria set forth therein.”
• Adding a sentence to subsection (e) regarding confidentiality that reads: “If the city officer or employee is also an accused individual within the complaint, nothing in this subsection prohibits the accused city officer or employee from exercising their rights afforded to them by the United States Constitution.”
• Adding “within 30 days” to Section 2-278 of Disposition, subsection (a) Written opinion to then say, “The ethics commission shall issue a decision within 90 days after the filing of a complaint. The ethics commission shall state in a written opinion its finding of fact and conclusions of law within 30 days after final disposition.”
In addition to the ordinance suggestions, staff suggested one change to the financial disclosure documents, which is to not require city council members to keep their information confidential. That suggestion was noted and updated in the financial disclosure documents.
Another consideration from city staff was to change the ordinance’s five-year retention period for opinions under state law to four years to match the state law retention period.
Mayor Travis Mitchell also suggested changing the policy sections that say “recommend” or “recommender” to “nominate,” “nominating” or “nominator.” At the end of the discussion, the change was unanimously approved.
Council member Yvonne Flores-Cale suggested adding a definition for “economic benefit” in Section 2-171 on page four, but she appreciated the first page of the policy that states, “The appearance of impropriety may itself be a conflict of interest,” and recommended keeping that in there.
“Perception is reality, and the truth is we have to make sure as elected officials that we are behaving even when we think nobody is watching,” Flores-Cale said.
Toward the end of the discussion, Flores-Cale motioned to keep the language on page one. Council member Miguel Zuniga seconded the motion.
Mitchell thought it was appropriate to leave that verbiage out.
“I don’t think it’s appropriate for the Ethics Commission to make findings based on appearance of impropriety as a conflict of interest but rather follow the actual rules for what a conflict of interest is,” Mitchell said.
As a newer council member, Zuniga said he wanted to see a strong ethics ordinance.
“I just want it to have some teeth in it,” Zuniga said. “I don’t want to see a watered-down ethics policy.”
There was a roll-call vote on the motion, in which Mitchell and council members Ashlee Bradshaw, Bear Heiser, Michael Tobias and Daniela Parsley voted to leave the phrase out. Flores-Cale and Zuniga voted to keep the verbiage in the ordinance.
Mitchell had a clarifying question regarding the constitutional rights provision. The provision states, “If the city officer or employee is also an accused individual within the complaint, nothing in this subsection prohibits the accused city officer or employee from exercising their rights afforded to them by the United States Constitution.”
“I think I could see it going both ways. There are situations where, over the last six years, the Ethics Commission has convened maybe five times, six times, seven times max. But so far, every ruling has been composed of about half and half between staff and council — accusations from or about staff or accusations about council and in each case, you know that each case is different. So, I can imagine in some situations, the accused may wish to remain silent, and in some cases, the accused may wish to speak,” Mitchell said. “The way I read it was that both are available because the Constitution allows it, and there’s nothing in the ethics ruling, it’s just saying that don’t read the ethics code as circumventing your constitutional rights, and that is both the first and the fifth.”
City attorney Paige Saenz referred to a provision in the ordinance that states, “No officer or employee shall reveal information relating to the filing or processing of a complaint except as required in the performance of official duty,” to which the word “reveal” would cover verbal and written communication.
“That’s a broad statement, but the language seems to be balancing that against your constitutional rights,” Saenz said.
Saenz recommended that those involved in processing the complaint should only talk about it in their official capacities.
“The purpose of this process is to allow for the evidentiary hearing to produce the information needed for the commission [and the council]to make a decision. But having the individuals involved in just the administrative processing without speaking about it doesn’t really help that process,” Saenz said. “It’s reasonable to have those individuals not reveal information about the complaint.”
Zuniga said it was sometimes difficult to balance the boundary of what transparency is to maintain the trust of the position.
“So things come up, some projects don’t work out, people, citizens want to know about these things. There [are]lawsuits happening, so it makes it difficult as a council member. What can I say that’s not common knowledge? Where would I see the red flag? Because obviously, the residents do have some rights to know what might be going on,” Zuniga said.
Saenz responded to Zuniga’s concerns by explaining that part of a council member’s duty is to look out for the best interests of the city and be transparent when it is “appropriate” and “necessary.”
“There is information that is confidential by law, and the council members and the city are required to maintain that information confidential,” Saenz said. “And so part of upholding your duties as a council member is honoring that confidentiality until it’s otherwise authorized. And if that’s a violation of the first amendment, then that needs to be taken up with the state legislature because those are state laws, and you’re just following them.”
The item will return for a second reading at a future council meeting, when additional action may be taken.
