KYLE — After listening to public comments, testimonies and questioning during a hearing held at the April 29 meeting, through a majority vote, the Kyle Ethics Commission found no violation of the city of Kyle Code of Ethics in relation to an ethics complaint filed by city council member Miguel Zuniga against Mayor Travis Mitchell.
Rules of Procedure
At the top of the meeting, prior to the hearing, the Ethics Commission unanimously approved edits to the Rules of Procedure that were initially amended April 24. While there was a consensus on amending the rules, it wsa not left without discussion by the commission or brought up during public comments.
“When a complainant comes before you to present and discuss their case, I ask you to increase the current amount of time for the opening statement to 20 minutes in order to provide sufficient time to be able to present their case, since they have the burden of proof, before the commission,” stated resident Stephanie McDonald. “That would not mean that the complainant is required to use his or her full 20 minutes, but it would be available to them should they need to take that time to lay their foundation in their case.”
Others who signed up to speak during the public comment period, including Courtney Goza, shared their concerns surrounding the authority of the ethics compliance officer (ECO) — Sarah Kerr — and the authenticity of the rules of procedure.
The commission approved multiple changes to the rules of procedure for complaint hearings, including the following:
• Catch All: Rather than relying on the Texas Rules of Evidence, the Kyle Ethics Code would apply and be controlling. In the absence of guidance on any particular procedural matter that the ethics code does not address, then the commission would have a majority vote.
• Not calling the room where the hearing is taking place as a courtroom
• Order of proceedings: Changing the language to hearing, rather than a trial and the complainant and respondent shall disclose with one another and the ECO witness any document disclosures no less than five days before a scheduled hearing. The complainant or respondent can request more documents or witnesses and the commission would determine if they approve on the day of the hearing before the proceedings.
• Motions in limine need to be submitted no less than 24 hours before the hearing to the ECO and the other party.
• Either the party, or legal representative if they chose to have one, can do their opening statements, which are 10 minutes long.
• The language was changed to say that witnesses are called to provide testimony, rather than called to the stand. “Cross-examination” or “direct examination” was also changed to questioning of a witness.
• The commission also decided to give parties 10 minutes, instead of five, for closing statements.
Commissioner Nancy Fahy shared her concerns that the rules of procedure should just be a guideline and there needs to be some leeway.
“I think it needs to be guidelines and we need to be very lenient because this is important … to both parties, as well as to the citizens, and I think if we hold it as set in stone, I don’t think this is going to work. I don’t think it’s fair to the public to do that. We had four people, I think, mention something about the possible illegality of this. We need to look into that; we need to make sure what we are doing is correct,” Fahy said.
Kerr interjected, explaining that 2-2771 of the ethics code, under hearing, states that the ethics commission may establish time limits and other rules related to the participation of any person in the hearing: “That should be sufficient authority for the commission to adopt these rules if they so desire.”
The commission ultimately added a catch-all statement at the end of the last section of the rules of procedure, stating that the rules are intended to act as a guide for hearings conducted by the commission and they can be amended at any time as needed by the commission on its own mission of the request of a party to apply to the specific needs of the matter before the commission.
Hearing
In his opening statement, complainant Zuniga, who also serves on Kyle City Council, stated that he was representing himself in his official capacity, as having a duty to report an ethics violation, according to code section 281, to address violations of provisions in sections 271-275 by the respondent — Mayor Mitchell.
“Our ethics code is the spirit of professional conduct that provides the framework to ensure we trust the decisions of our city leaders. The code entrusts us citizens with the sworn duty to hold everyone accountable regardless of position or title,” he said.
On Nov. 7, 2024, after lengthy discussion and intention, Mitchell directed realtor Chris Torrey to purchase real estate at 105 Veterans Drive, Zuniga said, claiming that the mayor used his official action to contact the agent, knowing that could provide a private interest advantage for an agent, whom he was a prior client of. Zuniga also claimed that Torrey was instructed by Mitchell to email city manager Bryan Langley in December to state that the landowner was interested in selling and then, Torrey asked if the city would be interested in the acquisition.
“Langley responded broadly that he could think of some uses for it and asked [for] any idea of the price. No follow-up email was provided, but by the time we discussed it on Jan. 3, an agenda item was prepared by Mayor Mitchell and city manager Langley,” Zuniga said, adding that the city was not searching for the specific property and had no immediate need for the acquisition, as well as pointing out that the process for this being brought forward was easy for the mayor.
Zuniga explained that once in formal discussion, he asked for a national firm to be used to represent the city, which Langley also recommended; however, according to Zuniga, Mitchell promptly objected and endorsed Torrey. The mayor stated Torrey had started working on a plan with the sellers because he directly engaged the realtor to get involved and he influenced all but two council members when he said Torrey deserved the property deal because he is an entrepreneur and was more proactive than other realtors in working with the city, Zuniga claimed.
“The facts will also demonstrate that Mayor Mitchell’s action is a contradiction to a public vote he and rest of council voted 7-0 to use a national firm [in] October 2024 to avoid any appearance of impropriety and distance council involvement in acquisitions,” Zuniga said. “The evidence will describe a false sense of urgency [that] was created by Mayor Mitchell to manipulate a majority of council; this opportunity would not be available very long and the city needed it ASAP for redevelopment.”
The timeline of the events that took place, as described by Zuniga, are as follows.
• Jan. 7: Mitchell took official action and brought the item into closed session.
• Jan. 9: Zuniga met with Langley to discuss his “moral trouble” with the comments from Mitchell. Langley said that another council member was also troubled and asked Zuniga to speak with the mayor.
Jan. 10: Mayor Mitchell offered to meet with Zuniga “to convince me that an arrangement could be made in that Mr. Torrey would not represent the city, but instead, only the seller.” Zuniga said no matter what side of the table Torrey is on, the issue is that the mayor violated the city’s ethics code by “using your influence to assist a realtor in securing the transaction.” However, according to Zuniga, Mitchell’s response was that the council member needed to play the game and just go along with it — staff does it all the time when they rank bids for solicitation.
• Jan. 11: Zuniga emails Langley, seeking an ethics complaint to the commission
• Jan. 15: Langley and city attorney Aimee Alcorn-Reed encourage Zuniga to start with an opinion and talk with the mayor, which was witnessed by other staff members. According to Zuniga, they were nervous about a public hearing that could be called.
• Jan. 19: Zuniga met with Mitchell, where he asked if Zuniga would be okay to let Torrey represent only the seller.
• Jan. 21: Council knowingly takes official action and redirects the realtor as an agent for the seller to “diffuse my concerns that I was making to ethics code 2-272 Unfair Advancement of Private Interests. This worked against the public because now, Mr. Torrey had information from the city and now, Mr. Torrey had an obligation to his client, the seller,” Zuniga said.
• Jan. 22: The opinion arrived, but it was limited in the information and lagging the surrounding events in real time.
• Feb. 4: Langley brought the final contract and asked council if it was agreeable, but Zuniga objected.
On Feb. 4, Zuniga asked if council could make any public disclosure about the acquisition to the closing price, but Alcorn-Reed denied because there was already a previous vote two weeks prior to approve the 105 Veterans purchase, so this was only an update. As Zuniga found this to be odd, he sent emails for clarifications on open meetings the next day.
“Discussions surrounding 105 [Veterans] were unprofessional, with a lot of verbal insults happening in closed session directed at me, just for asking questions [on] why we were doing things highly uncharacteristic to our ethics and complete opposite of full transparency,” he noted.
In his complaint, Zuniga stated that Mitchell had violated codes 2-171 through 2-175 by providing unfair advantages to a close acquaintance and realtor, for whom he was a prior client. Mitchell confirmed under oath that he met with Torrey to discuss various properties.
• Violation of ethics code 2-171: Official action includes any affirmative act, including the making of a recommendation, within the scope of or in violation of an officer or employee duties.
• Violation of ethics code 2-172: Prohibits a city officer from using their official position to advance economic interest to any form or special consideration or treatment to any person beyond what is available to everyone else.
• Violation of ethics code 2-173: Prohibits an officer from soliciting, accepting or agreeing to accept a gift or benefit for himself or business that would influence or reward official conduct.
• Violation of ethics code 2-174: Public servants should not disclose improper proprietary information or confidential information or any information they have acquired or obtained in the course of their official duties for the financial benefit of gain of such public servant or any client or third party. Public servants shall not release proprietary or privileged information for any purpose other than the performance of official duties.
• Violation of ethics code 2-175: Prohibits an officer from representing, with or without compensation, another entity before their own government body, including a board or city staff making recommendations to the body.
As stated in documents obtained by the Hays Free Press, Zuniga cited multiple pieces of evidence and reasons that pertain to the specific ethics codes that were violated by the mayor, according to the council member. These include agenda notes, formal discussion votes, written communication — emails and text messages — and more.
In his opening statement, however, the mayor stated that having a relationship with a community member — whether a realtor, business owner, organizational leader or citizen — does not automatically create a conflict of interest “nor does it violate the code of ethics in any way. If it did, every elected official in this city would be routinely conflicted on items.”
What matters under the ethics code, according to Mitchell, "is not whether a relationship exists, but whether that relationship resulted in an improper action, secret deals, coercion [or] private gain. None of those things happened here and Mr. Zuniga will present no evidence to the contrary. My relationship to Mr. Torrey was fully transparent, involved no financial benefit to me and I exerted no improper influence over council’s collective decision.”
Beginning with the complainant’s witnesses, former Kyle City Council member Yvonne Flores-Cale was called to provide testimony on her knowledge of the mayor’s relationship with the realtor. She testified that in 2022 or 2023, after the purchases of the downtown area, she was curious about how much the city ultimately paid and she requested that information from then-assistant interim city manager Jerry Hendrix; it was then that she realized the city was using a realtor.
“After I received the information from Mr. Hendrix, I decided to do some research, because that’s what I do, and I did a Hays [Central Appraisal District] search and I did a Google search and I realized that … the real estate for the city was the real estate agent for Mayor Mitchell and then, later on, I found out he was the real estate agent for the new city manager, Bryan Langley,” Flores-Cale said.
The current city manager, Langley, was also called to testify about the acquisition of the Veterans Drive properties, his relationship with the real estate agent, email exchanges and the mayor’s influence.
While there was some question on whether there was a conflict of interest with Torrey representing both the city of Kyle and him, Langley contacted former city attorney Paige Saenz to ask for her advice on the matter — she ultimately said that there was no conflict.
Following some other questioning, commissioner Paul Hill asked Langley how the city was able to vote for Torrey to represent the city on the Veterans Drive properties if the city already believed that he represented the seller.
“I think what we are saying is he did not represent the city in the transaction,” Langley responded. “We did not have a broker on the transaction … No commission from the city was paid to Mr. Torrey for that transaction. The city voted to acquire the property … Mr. Torrey represented the seller.”
Zuniga also asked Langley if the mayor has more influence on council discussion than the city manager does.
“I made that recommendation here, in front of the council on the dais. [I recommended] to the council that we use a national, commercial real estate firm,” Langley said. “The council voted against doing that and directed me to continue on with a different path. The council voted [for] me to do that, not the mayor.”
Council members Bear Heiser, Marc McKinney, Lauralee Harris, Robert Rizo and Michael Tobias were also called to testify on their respective votes made on the property acquisition in question and the mayor’s influence on their decision.
They were all asked if they felt any kind of pressure or influence to vote a certain way on the property acquisition. Rizo said there was no pressure originally until he received a phone call from Zuniga the next day, explaining that he was not in support of the purchase. Additionally, Tobias, who was the only council member aside from Zuniga who voted against the acquisition — due to budgetary concerns and because he felt that the city did not need it or had a plan moving forward — testified that there was no pressure or influence on his vote. However, after being questioned if he would vote differently if he knew an elected official was having private discussions with the realtor and then, the item was brought forward, he said he would probably question why those were involved.
Lastly, Mitchell called for Zuniga to be a witness and to testify on multiple items including: background on the complaint, definition of official item, evidence that shows how the mayor instructed a council member how to vote, etc. He also asked that based on the testimony that was heard today if Zuniga believes that the city council acted independent of his influence based on their own testimony or if the mayor did coerce them because of his influence and, therefore, what they testified to is wrong.
“I believe there was a lot of pivoting after the complaint was filed,” Zuniga said. “My response is: they follow your leadership.”
Verdict
Ultimately, more than four hours into the meeting and following executive session, the Kyle Ethics Commission voted 4-1 that there was no violation to the ethics code. Fahy was the sole commissioner who found that there was a violation.
“I just wanted to let everybody know that I and my fellow commissioners went into this with an open mind. This decision was made based on the evidence in front of us and applying that evidence to the language of the ethics code. There may be things that happened that we don't like,” Hill concluded. “There may be things that happen that we disagree with, but our mission today was to decide whether or not a violation of the ethics code as written happened and that was how all of us based our votes. We did not agree and that's okay, but I just wanted to let you know that I have confidence that every single one of us took this seriously and applied the code to the facts as we saw them.”
In a statement to the Hays Free Press, Mitchell shared that he was pleased with the ethics commission’s verdict.
“I’m grateful that the recent ethics committee meeting has been concluded with no findings against me. The process we went through was transparent and recorded. I encourage anyone who wants to learn more about the matter to simply watch the hearing and decide for yourself,” Mitchell said, adding that he is focused on working with the city council to take important steps forward for the city of Kyle in improving mobility, growing the business community, redeveloping downtown, building sports/parks infrastructure and more.
On the other hand, however, Zuniga disagreed with the outcome as ultimately, he felt like the city’s ethic code was violated: “I felt that the evidence was concerning to me and I believe there was an appearance of impropriety that I wanted to bring forward to make sure that we follow our ethics code and hold the elected official accountable.”
To listen to the full meeting and hearing, including the witness testimonies, visit bit.ly/3EArr0T. More information on the city of Kyle Ethics Commission and the ethics code can be found at www.cityofkyle.com/cityadministration/page/ethics-commission.
