TOMORROW - AUGUST 25th - Be there!!!
We received this email concerning the Fort Worth City Council Ethics fiasco (it is actually one of many fiasco's in Fort Worth, though this one is generating lots of attention from lots of folks...Finally).
Dear "THE PEOPLE":
Last week, the Fort Worth City Council, acting as the appellate body for a recent Ethics Commission decision to disallow drilling industry employees to sit as voting members of the Air Quality Study Committee, overturned the Commission's decision. The mayor announced that new members of the Ethics Commission would be appointed and that one of their jobs would be to review the Ethics Code.
However, what is not widely known is that TOMORROW, Tuesday, August 25, the Council may vote on proposed changes to the Ethics Code which were only posted to the council's agenda last Friday.
We are urging you to contact your Council members and/or attend tomorrow's 10:00 a.m. City Council meeting to urge the Council to DELAY for a significant period of time making any changes to the Ethics Code. These proposed changes could affect not just the Air Quality Study Committee, but potentially all commissions, advisory boards, study committees, task forces, etc.
Council meets tomorrow:
Fort Worth City Hall
City Council Chambers
To protect our democratic process, the citizens need time to 1) know about proposed changes to the Ethics Code; 2) understand the implications of any changes; 3) offer their own suggestions; 4) have the opportunity to participate in the public hearing on changes at a NIGHT meeting of the Council when more could participate.
Please see below an opinion piece about the proposed changes, news articles about last Thursday's special City Council meeting to hear the appeal of the Ethics Commission decision, and the content of the Mayor and Council communication about the proposed changes to the Ethics Code.
Fort Worth Star-Telegram Editorial, Aug. 23, 2010
Fort Worth ethics inquiry focused on the wrong people
It's unfortunate that an ethics brouhaha at Fort Worth City Hall has focused on three people who are employees of energy companies.
John Satterfield of Chesapeake, Darren Smith of Devon and Nina Hutton of XTO should not be labeled as unethical because of anything they've been shown to have done while serving on the city's Air Quality Study Committee. They are among the 10 voting members named by the City Council, charged with making recommendations about testing for hazardous emissions from Barnett Shale natural gas facilities.
The three may have been in technical violation of the city's ethics ordinance, although the council decided unanimously on Thursday that they were not. Any blame lies not with them but the council.
They did exactly what the council, at the urging of Mayor Mike Moncrief, asked them to do: represent their employers on the committee, which the ordinance forbids. Moncrief and the council should have known that.
"No member of a city board or commission shall knowingly represent, directly or indirectly, any person, group or business entity ... before the board or commission of which he or she is a member," the ordinance says.
Satterfield, Smith and Hutton acted honorably after the Ethics Review Committee ruled in June that their service violated the ordinance, an allegation with which they disagreed. They removed themselves from voting on important Air Quality Study Committee matters, which they were not obligated to do before the City Council heard their appeal.
What should be of more concern than the actions of these three individuals are those of Moncrief and the council, who not only are defending the appointment of people to represent the views of their employers with voting seats on advisory committees but now are fighting on behalf of the practice. The mayor and council want to revise the ethics ordinance to make that OK.
It's not OK. As the ordinance says, "no officer, employee or member of any board, commission or committee should have any interest, financial or otherwise, direct or indirect ... which is in conflict with the proper discharge of his duties in the public interest." (Or her duties. Gender-reference anachronisms die hard.)
The sole allegiance of these people should be to the public.
In discussions of this issue, it has been pointed out that the Star-Telegram was represented similarly on an advisory committee a few years back when the city was considering limits on newspaper racks on sidewalks. It wasn't OK then, either. Shame on us.
Moncrief argues that such appointments are the best way to tap the knowledge of "subject matter experts." That goal would be better accomplished by asking people whose employers might be affected by a committee's actions to serve as nonvoting members.
Finally, the council clearly has not concentrated its attention on the ethics ordinance or the Ethics Review Committee itself in some time. The committee rarely meets, and it has vacant seats as well as members who have served for two decades.
The council should approach any ordinance rewrite with extreme caution. In particular, although it caused problems in this case, the focus on the actions of individuals should not change. The best way to enforce ethical behavior is to hold individuals responsible for it.
In this case, the council should not have asked people to do something they would have been better off not doing.
Mayor and Council communication on proposed Ethics Code Ordinance changes
DATE: 8/24/2010 REFERENCE NO.: G-17030 LOG NAME: 12ETHICS CODE AMENDMENT
CODE: G TYPE: NON-CONSENT PUBLIC HEARING: NO
SUBJECT: Adopt Ordinance Amending the City's Code of Ethics to Clarify when Certain Advisory Board Members Must Disclose Interests or Recuse from Participating in or Voting on Certain Matters, to Address Various Sanctions under the Code, and to Address Appointment of Ethics Review Committee
It is recommended that the City Council adopt the attached Ordinance amending the City's Code of Ethics to (i) clarify when a particular advisory board member must disclose certain interests or recuse from participating or voting on certain matters before the board to which the member has been appointed; (ii) provide that a person does not violate the Code of Ethics for conduct undertaken by that person in reliance upon an opinion of the City Attorney that such conduct is permissible and would not constitute a violation of the Code; and (iii) address the appointment of the Ethics Review Committee.
The City Council regularly creates task forces to make recommendations to the City Council regarding a variety of issues that are highly technical, specialized and complex. The members of these task forces are citizens who are volunteering their time in response to a request by the City Council for assistance and service.
In order for such task forces to be able to address these issues in any substantive and effective way, members of these task forces often need to have personal or professional knowledge, insight and expertise with respect to the issues before their committees. Therefore, it is sometimes inevitable that a member of one of these boards will be an employee of, or have some other remunerative relationship with, a business or industry interest that is, in some way, tied to the issues before the task force. In fact, these professional connections typically are not only known by the City Council at the time of the member's appointment to the board, but are actually prerequisites or a primary basis for the appointment.
Accordingly, at a special meeting of the City Council on August 19, 2010, the City Council requested the City Attorney to prepare an amendment to the Code of Ethics which clarifies that individuals serving on these task forces will be permitted fully to participate in and vote on matters before the boards to which they have been appointed. In doing so, the City Attorney has also noted that the Ethics Review Committee, which is appointed by the City Council to rule on alleged violations of the Code of Ethics, has authority to sanction a person for conduct, even when that conduct was undertaken in reliance upon an opinion of the City Attorney that the conduct was permissible and would not constitute a violation of the Code. For example, if the City Attorney's opinion is that a task force member may participate in and vote on a particular matter before the board to which the member was appointed, the Ethics Review Committee (and the City Council in its appellate authority) could interpret the Code differently and sanction that individual for violating the Code of Ethics, even though that person's actions were based entirely on the City Attorney's guidance or opinion. In the interest of fairness, the City Attorney recommends that the Code of Ethics be amended to provide that a person does not violate the Code to the extent that the person's conduct was consistent with an opinion of the City Attorney that the conduct was permissible.
In addition to the Ordinance amending the Code of Ethics itself, a copy of the Code is attached and redlined to show how the amendments are integrated into the Code.
Section 1 of the Ordinance clarifies that the policy declaration of the Code of Ethics, which is essentially a preamble that explains the purpose of the Code, is not a part of the Code itself. In other words, a person cannot violate the Code of Ethics unless that conduct is clearly prohibited by the Code. This amendment is reflected in Section 2-236 of the redlined Code.
Section 2 of the Ordinance simply adds terms and definitions for "City Attorney", "resident", and "task force", all of which are necessary for reference in other parts of the Ordinance. The most important term is "task force", which is defined as an advisory board that is intended to address a specific issue on a temporary or short-term basis. This amendment is reflected in Section 2-237 of the redlined Code.
Section 3 of the Ordinance merely addresses a housekeeping matter. It corrects a previous reference to members appointed to advisory boards established "by ordinance, charter or state law." Often, advisory boards are established by City Council resolution or vote. This amendment clarifies that the provision in question applies to all advisory board members, regardless of the method of their appointment. This amendment is reflected in Section 2-238(a)(6)d. of the redlined Code.
Sections 4 and 5 of the Ordinance amend the Code to allow a task force member fully to participate in and vote on any matter before the task force to which the member has been appointed. These provisions recognize that task forces are intended only to address specialized, and often complex, issues in a short amount of time, and that their members are often appointed because they have specific professional expertise connected to the issues the board is considering. Because these task forces are advisory only, any professional connections that the members may have can be taken into consideration by the City Council when the Council receives recommendations from the task force; they should not disqualify members from participating in matters that the Council desires. These amendments are reflected in Section 2-238(d)(5) and Section 2-239(d) of the redlined Code.
Section 6 of the Ordinance amends the Code to specify that a person does not violate a provision of the Code for conduct undertaken by the person in reliance, either directly or indirectly, upon an opinion of the City Attorney. Whether specific conduct was undertaken in reliance of the City Attorney's opinion is a factual question that is to be resolved in a preliminary hearing of the Ethics Review Committee, as addressed later in the Ordinance. This amendment is reflected in a new Section 2-239.1 of the redlined Code.
Sections 7 and 8 of the Ordinance are minor amendments that address the appointment process and terms of service of the Ethics Review Committee. These amendments are reflected in Sections 2-241 (c) and (d) of the redlined Code.
Section 9 of the Ordinance addresses another housekeeping matter. The Code currently stipulates that the Ethics Review Committee is to meet on a quarterly basis. In the past, there has not been enough business before the Committee to warrant quarterly meetings. This amendment specifies that the Committee shall meet as necessary to carry out its duties. This amendment is reflected in Section 2-243 of the redlined Code.
Section 10 of the Ordinance fixes another perceived shortcoming in the Code. Currently, in order to have standing to file a complaint under the Code of Ethics, a person must be a registered voter, if eligible, of the jurisdiction where he or she resides. As a result, a Fort Worth citizen who is not registered to vote is ineligible to file a complaint, while an eligible voter who lives in San Antonio, for example, could file a complaint. Because the Ethics Code focuses on purely local matters, it is recommended that all residents of Fort Worth have standing to file a complaint. Non-residents would not have standing. This amendment is consistent with the current eligibility requirements for members of the Ethics Review Committee, which is that they be residents of the City. This amendment is reflected in Section 2-247 of the redlined Code.
Section 11 of the Ordinance requires the City Attorney to review all complaints and to notify the Ethics Review Committee if he or she believes that the conduct asserted in the complaint was undertaken in reliance upon an opinion of the City Attorney. This amendment is reflected in Section 2-249(c) of the redlined Code.
Sections 12 and 13 of the Ordinance provide for a preliminary hearing to be held by the Ethics Review Committee if the City Attorney notifies the Committee that he or she believes that conduct asserted in a complaint was undertaken in reliance upon an opinion of the City Attorney. The City Attorney's written notice and testimony that conduct was undertaken in such reliance constitutes prima facie evidence that the person complained against did not violate the Code of Ethics. This amendment is reflected in Section 2-251(b) of the redlined Code. The amendments reflected in Section 2-251(a) are simply resulting clerical changes.
Finally, Sections 14 through 17 of the Ordinance delete the provisions in the Code that allow the Ethics Review Committee and the City Council to impose sanctions against an individual whose conduct is found to have been undertaken in reliance upon an opinion of the City Attorney that the conduct was permissible and would not constitute a violation of the Ethics Code. These amendments are reflected in Section 2-255(a) and (b) and Section 2-256(i) and (j) of the redlined Code.
Sections 18 through 20 of the Ordinance are standard savings, severability, and effectiveness clauses.