KYLE — After violating the Texas Open Meetings Act, Kyle City Council voted to add the language “legal sufficiency” regarding ethics complaints to the Code of Ethics at its May 27 meeting.
According to city attorney Aimee Alcorn-Reed, the Ethics Commission unanimously recommended an amendment to the city’s Code of Ethics May 7 “to clarify the rights and responsibilities of the ethics compliance officer in determining whether or not a complaint is legally sufficient before providing the complaint to the ethics commission.” This would be done by including the language “legally sufficient” to Section 2-275 in the code.
Public comment
Several community members spoke out against the item during public comment. One of which was Nancy Fahy.
“I understand that legal sufficiency should be in the code, but it needs to be defined, clearly defined, as to what is considered legally sufficient for an ethics complaint in Kyle. Some might not know, some know, but you can do something that’s ethical that’s illegal. Just as you can do something that’s legal that’s unethical. There’s a difference and we can’t loop them together and the code kind of reads as if it’s legal. It’s not; it’s ethical, big difference,” said Fahy.
Following Fahy’s comment, former council member Yvonne Flores-Cale approached the podium to speak.
“Recently, the Ethics Commission made a unanimous decision to pause dismissals to await a third party attorney’s opinion before allowing the ethics attorney to continue dismissing complaints,” began Flores-Cale. “I believe the city and its leadership are counting on residents not watching these meetings. Is [the reason for change] really the cost? I don’t think so. The city spent millions on real estate that currently sits unused. So, what exactly are city attorney Aimee-Alcorn-Reed and city manager Bryan Langley trying to cover up? Is it the ethically questionable makeup of the city’s ethics committee? A council member nominating a friend to oversee the actions of the very person who nominated them? Seems like a blatant conflict of interest to me.”
She continued by referencing an alleged rumor of an affair between a city employee and a former council member.
At this point, Mayor Travis Mitchell interupted Flore-Cale's three minutes by beginning to bang his gavel and demand that she stop speaking. She continued until a Kyle Police Department officer removed her from the podium at the direction of Mitchell.
This act directly violates the Texas Open Meetings Act, which states, “A governmental body shall allow each member of the public who desires to address the body regarding an item on an agenda for an open meeting of the body to address the body regarding the item at the meeting before or during the body's consideration of the item.”
Furthermore, Section 551.007(e) of the Texas Government Code dictates that “A governmental body may not prohibit public criticism of the governmental body, including criticism of any act, omission, policy, procedure, program, or service.”
After removing Flores-Cale from the podium prior to her time limit, the council took a brief recess before continuing the meeting.
Council discussion
Beginning the discussion, council member Michael Tobias asked the following questions: What would be the official process to investigate any complaint as legal or not? What type of legal research will this compliance officer need? Would the research be made public? How would council be notified about the complaints?
“The way it would be written, since we did not change [Section] 2-274, when the complaint is filed, it would get transmitted by the city secretary to the ethics compliance officer and to the respondent. So, if a complaint is filed against you, you would be notified immediately and you would have 14 days to respond. When it’s sent to the ethics compliance officer, the ethics compliance officer would then review it for legally sufficiency and if its determined that its not legally sufficient, she would inform the city secretary that its not legally sufficient and not send it off to the commission,” explained Alcorn-Reed. “You have to be able to thoroughly allege a violation; you have to have alleged facts that would be sufficient to be a violation [of the ethics code].”
Council member Miguel Zuniga stated that the ordinance passing would only enable bad actors that are in office to misuse and abuse their position because there would be less safeguards for people to transmit complaints, since it would be discretionary through an ethics attorney. So, a straight dismissal is problematic, as it does not build any confidence with the community that they would be able to put forward an ethics complaint, he said.
Alcorn-Reed responded that even if a case is initially dismissed, it can still be resubmitted with sufficient details to be considered legally sufficient. The attorney would also provide information as to why it was dismissed, which would aid in refiling, she explained.
“We really don’t need this ordinance because the ethics code already has enough robustness in there that it prohibits any types of bad faith attempts,” said Zuniga. “What we really need is you, as the attorney, to bring forward ethics ordinances that will improve upon penalizing bad actors.”
Opposing Zuniga’s concern, council member Bear Heiser stated it makes no sense how this ordinance would enable bad actors when it is just an attorney’s judgement on whether the complaint is legal or not; it only saves time.
The two began arguing back and forth, with one dispute being Heiser stating that many believe the Ethics Commission is biased, since it is appointed by council and at that point, complaints should be sent to the Attorney General (AG) for review.
“Maybe that is better. Sometimes people that are serving can be there for the wrong reasons. That’s something that I'm looking at right now,” said Rizo. “I’m wondering, what can we do to fix this? And I really don’t know. I don’t have an idea. Maybe the AG’s office is the best way to do it.”
“I may not agree with you, council member Heiser, about bringing people together — the commission together — and wasting their time. That’s what they’re appointed for. That’s what they’re there for,” said Tobias.
Council members Robert Rizo and Tobias noted that perhaps changing the way the commission is selected should be discussed, to which Alcorn-Reed responded that in the city charter, it stated that it has been considered by the Kyle Charter Review Commission. Because of this, this discussion can happen at a later date when the recommendations from the commission are brought in front of council.
A hybrid between the attorney and the commission could be created, he continued, where the attorney would provide the details of the dismissal and where it stands legally, but the commission would review it after and decide if it needs to go forward. This way, the public would still be involved.
“I sincerely hope that I speak for all of us, when I say that nobody wants a sincere ethics violation to squeak through the cracks. It’s my understanding that the question is who is most qualified to determine whether there is an actual ethics violation based on our written ethics code and I have to defer to a paid attorney’s expert opinion over the appointed residents,” said council member Marc McKinney.
Another idea that was brought forward was by council member Lauralee Harris, who suggested the attorney would instead inform the community member on what was missing instead of denying the complaint all together: “Not everybody is real good at filling these out. They are not attorneys. I agree, I don’t want frivolous complaints, but still, I think that this is the job of the Ethics Commission, to hear the complaints, and I think it’s the ethics attorney’s job to say here’s what we perceive as the merits that you are considering. Then, the Ethics Commission can say, ‘It’s not sufficient … We deny it.’”
Although Mayor Travis Mitchell stated that he understands the council’s wish for transparency and said that he fundamentally supports that the only complaints that can be heard meet a minimum threshold of being legally sufficient, as it is not a judgment, it’s simply whether it is tied to the ethics ordinance or not.
“I think, from this discussion, we need to really just look at the whole Ethics Ordinance and assure that the right of the complainant is protected [and] frivolous complaints are not filed,” said Harris.
Ultimately, Harris, McKinney and Tobias agreed on the hybrid solution previously mentioned.
“I think we’re all trying to do right,” concluded Mitchell.
Mitchell motioned to approve the legal sufficiency clause, but to also require all complaints be forwarded to the Ethics Commission, regardless of legal sufficiency. The item was approved unanimously.
