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HomeMy WebLinkAboutOrdinance 10617~;% ~, ~,~ ,,y D~ . ...; ^ X231 ORDINANCE N0. ~2~ -,~.~ AN ORDINANCE AMENDING CHAPTER 2, ARTICLE VII, "CODE OF ETHICS", OF THE CODE OF THE CITY OF FORT WORTH, TEXAS (1986), BY CHANGING CERTAIN PROVISIONS CONCERNING DEFI- NITIONS, STANDARDS OF CONDUCT, AND DISCLOSURE OF INTEREST; PROVIDING FOR AN ETHICS REVIEW COMMITTEE AND ESTABLISHING PROVISIONS CONCERNING ITS DUTIES, MEETINGS AND STAFFING; ESTABLISHING PROCEDURES FOR THE COMMITTEE TO HEAR AND DISPOSE OF COMPLAINTS CONCERNING ALLEGED VIOLATIONS; PROVIDING FOR APPEALS FROM CERTAIN DECI- SIONS OF THE COMMITTEE; PROVIDING FOR SANCTIONS AND RECOMMENDED SANCTIONS; PROVIDING THAT THIS ORDINANCE SHALL BE CUMULATIVE; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR ENGROSSMENT AND ENROLLMENT; PROVIDING A PENALTY FOR FAILURE TO COMPLY WITH A SUBPOENA ISSUED BY THE COMMITTEE OR A HEARING OFFICER; PROVIDING FOR PUBLI- CATION IN THE OFFICIAL NEWSPAPER; AND PROVIDING AN EFFECTIVE DATE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FORT WORTH, TEXAS: SECTION 1. That Chapter 2, Article VII, "Code of Ethics", of the Code of the City of Fort Worth, Texas (1986), as amended, be and is hereby further amended as follows: 1 Division 1 thereof is changed to read as fol- lows: DIVISION 1. GENERALLY Sec. 2-236. Declaration of Policy. It is hereby declared to be the policy of the city that the proper operation of democratic government requires that public officials and employees be indepen- dent, impartial and responsible only to the people of the city; that governmental decisions and policy should be made in the proper channels of the governmental structure; that no officer, employee or member of any board, commission or committee should have any interest, financial ar otherwise, direct or indirect, or engage in any business, transaction or professional activity or incur any obligation of any nature which is in conflict with the proper discharge of his duties in :~ ~ G the public interest; that public office and public employment are positions of public trust imposing the duty of a fiduciary upon all employees and office- holders, who are not to use their public position for personal gain. To implement such a policy, the city council deems it advisable to enact this code of ethics for all officers, employees and advisory board members, whether elected or appointed, paid or unpaid, to serve not only as a guide for official conduct of the city's public servants, but also as a basis for discipline for those who refuse to abide by its terms. This code of ethics is cumulative of other ordinances, city charter provisions and state statutes defining and prohibiting conflict of interest. Sec 2-237. Definitions For the .purposes of this code of ethics the follow- ing words and phrases shall have the meanings respec- tively ascribed to them by this section: Advisory Board shall mean a board, commission or commit- tee that functions only in an advisory or study capa- city. Article shall mean Chapter 2, article VII, Code of Ethics of the Code of the City of Fort Worth, Texas (1986), as amended. Business Entity shall mean a sole proprietorship, partnership, firm, corporation, holding company, joint- stock company, receivership, trust, or any other entity recognized by law. Direct or indirect financial interest - An officer or employee of the City has a financial interest in a contract with the City if he, or a person, group or business entity in which he has a substantial interest, directly or indirectly: a) engages in the exchange, purchase or sale of any land, goods, materials, supplies, services or other thing of value with the city, except on behalf of the city as an officer or employee; or b) receives any commission, royalty, premium or other payment from the exchange, purchase or sale of any land, goods, materials, supplies, services or other thing of value with the city, except on behalf of the city as an officer or employee; or c) enters into any contract with the city, except: 2 1) rendering services to the City as an officer or employee; 2) paying taxes, fines, utility service or filing fees; 3) subject to restrictions contained in the city charter, executing and performing any com- munity facilities contract or plat in compli- ance with the laws and regulations applicable to any person. (See Chapter XXVII, Section 16, Fort Worth City Charter.) Elected city official shall mean any member of the City Council. Employee shall mean any person employed by the city whether under civil service or not (except firefighters and police officers who are covered by state civil ser- vice laws}, including those individuals on a part-time basis, but such term shall not be extended to apply to any independent contractor. Intent or intentionally - A person acts intentionally, or with intent, with respect to the nature of his con- duct or to a result of his conduct when it is his con- scious objective or desire to engage in the conduct or cause the result. Knowingly - A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circum- stances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances• exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Officer shall mean any member of the city council and any appointive member of a board, commission or com- mittee established by ordinance, charter or state law; provided, no member of a board, commission or committee that functions only in an advisory or study capacity shall be deemed an officer of the city. Substantial Interest. a) A person has a substantial interest in a business entity if: 1) the interest is ownership of 10 percent or more of the voting stock or shares of the i ' r t business entity or ownership of either 10 percent or more or $5,000 or more of the fair market value of the business entity (see Section 171.002, Texas Local Government Code); or 2) funds received by the person from the busi- ness entity exceed ten percent of the person's gross income for the previous year (see Section 171.002, Texas Local Government Code); or 3) the person holds a position of member of the board of directors or other governing board of the business entity; or 4) the person serves as an elected officer of the business entity; or 5) the person is an employee of the business entity; or 6) the person is a creditor, debtor or guarantor of any person, group or business entity in the amount of five thousand dollars ($5,000) or more; or 7) property of the person has been pledged to a person, group or business entity or is sub- ject to a lien in favor of the person, group or business entity in the amount of five thousand dollars ($5,000) or more. b) A person does not have a substantial interest in a business entity if: f 1) the person holds a position as a member of the board of directors or other 'governing board of a business entity; and 2) the person has been designated by the city council to serve on such board; and 3) the person receives no remuneration, either directly or indirectly, for his service on such board; and 4) the primary nature of the business entity is either charitable, nonprofit or governmental. c) A person has a substantial interest in real prop- erty if the interest is an equitable or legal ownership interest with a fair market value of two 4 thousand five hundred dollars ($2,500.00) or more (see Section 171.002, Texas Local Government Code). d) A person has a substantial interest under this article if the person's spouse or a person related to the person in the first degree by consanguinity or affinity has a substantial interest under this article (see Section 171.002, Texas Local Government Code). A person is related in the first degree by consanguinity to his or her father, mother, brother, sister, son or daughter. A person is related in the first degree by affinity to his or her father-in-law, mother-in- law, brother's spouse, sister's spouse, son-in-law or daughter-in-law. Section 2-238, Standards of conduct. a) No city officer, employee or advisory board member, or their spouses, shall knowingly: 1) Accept or solicit any gift, favor, service or thing of value from any person, group or business entity that might reasonably tend to influence him in the discharge of his offi- cial duties; 2) Grant in the discharge of his official duties any improper favor, service or thing of value to any person, group or business entity; 3) Accept or solicit any gift, favor, service or thing of value, including a promise of future employment, of sufficient economic value that it might reasonably tend to influence him, in the discharge of his official duties., from any person, group or business entity: a. Who is licensed or has a substantial interest in any business entity that is licensed by any city department, agency, commission or board on which the city officer, employee or advisory board member serves; or b. Who has a personal financial interest in any proposed ordinance or decision upon which the city officer, employee or advisory board member may or must act or make a recommendation; provided, how- ever, that any city officer, employee or advisory board member and any spouses, may accept travel and related expenses 5 1 d and attend ceremonial functions, pro- vided that such acceptance and atten- dance have been approved by the city council prior to the occurrence of the ceremonial function. 4) Disclose any confidential information gained by reason of the position of the officer, employee or advisory board member concerning the property, operations, policies or affairs of the city, or use such confidential informa- tion to advance any personal interest, finan- cial or otherwise, of such officer, employee or advisory board member, or others. This subparagraph 4) shall not preclude dis- closure of such confidential information in connection with any investigation or proceed- ing regarding whether there has been a viola- tion of the standards of conduct set forth in this article. 5) Use one's position or office of employment, or city facilities, personnel, equipment or supplies for the private gain of the city officer, employee or advisory board member, or for the private gain of his spouse. 6) Engage in any exchange, purchase or sale of property, goods or services with the city, except: a. Rendering services to the city as an officer, employee or advisory board member; ? b. The paying of taxes, fines, utility service or filing fees; c. Subject to restrictions contained in the charter of the city, executing and per- forming any community facilities con- tract or plat in compliance with laws and regulations applicable to any per- son; provided, however, that if any city ordinance, rule or regulation allows any discretion by the appropriate officers or employees of the city in the interpre- tation or enforcement of such ordinance, rule or regulation any such discretion shall be exercised i.n favor of the city in connection with any such community facilities contract or plat; s d. Members of advisory boards set up by ordinance, charter or state law who are not otherwise officers or employees of the city, may engage in any exchange, purchase or sale of property, goods or services with the city, or enter into a contract with the city, provided, how- ever, that the board of which they are a member has no advisory function or cogni- zance, direct or indirect, present or prospective, with respect to the transac- tion in which such advisory board member engages or proposes to engage. b) No city officer, employee or advisory board member shall knowingly: 1) Appear before the body of which the officer, employee or advisory board member is a member as a representative for any person, group or business entity. 2) Represent, directly or indirectly, any per- son, group or business entity in any action or proceeding against the interests of the city or in any litigation in which the city or any department, agency, commission or board thereof is a party. 3) Represent, directly or indirectly, any per- son, group or business entity in any action or proceeding in the municipal courts ,of the city which was instituted by a city officer or employee in the course of official duties, or a criminal proceeding in which zany city officer or employee is a material witness for the prosecution. c) It shall not be a violation of this section for a city officer, employee or advisory board member, or his spouse, to appear before the city council, historic and cultural advisory board, plan commis- sion, zoning board of adjustment, or zoning commis- sion to represent himself in a matter affecting his property; provided, however, that no such person, or his spouse, shall appear before any board of which he is a member in such a matter. 7 Section 2-239. Disclosure of Interest. a) If any city officer, employee or advisory board member has a substantial interest in any person, group or business entity, or real property involved in any decision pending before such officer, employee, or advisory board member, or the body of which he or she is a member, such officer, employee, or advisory board member shall disclose such interest as provided in c) below and shall not, except as provided in b) below, vote or otherwise participate in the consideration of the matter. b) If any of the following interests are involved in any decision pending before any city officer, employee, or advisory board member, or the body of which he is a member, such officer, employee, or advisory board member must disclose such interest as provided in c) below, but he shall be permitted to vote on and participate in the consideration of such matter: 1) a decision concerning a bank or other finan- cial institution from which the officer, employee, or advisory board member has a home mortgage, automobile loan, or other install= ment loan, if the loan is not currently in default, was originally for a term of more than 2 years and cannot be accelerated except for failure to make payments according to the terms thereof; 2) a decision concerning a bank or other finan- cial institution in which the officer, employee, or advisory board member holds a savings account, checking account or certifi- cate of deposit and which is fully insured by the U.S. government or an agency thereof; 3) a decision which the board meml account; 4) a decision tution of bank; concerning a business entity with officer, employee, or advisory per has a retail or credit card concerning the approval of substi- collateral by a city depository 5) a decision concerning. real property in which the officer, employee or advisory board mem- ber has a substantial interest if it is not reasonably forseeable that such decision would have a special economic effect on the 8 value of the property, distinguishable from the effect on the public (see Section 171.004, Texas Local Government Code). c) A city officer, employee, or advisory board member shall disclose the existence of any substantial interest in any person, business entity or real property involved in any decision pending before such officer, employee, or advisory board member, or the body of which he is a member. To comply with this paragraph, a city officer or advisory board member shall, prior to any discussion or determination of the matter, either file an affidavit of disclosure as required by Section 171.004 of the Texas Local Government Code or, if not so required, shall publicly disclose in the official records of the body or of the city secretary the nature of the interest. To comply with this paragraph, a city employee shall notify his superior in writing of the nature of any sub- stantial interest he may have in a person, busi- ness entity or real property which would be affected by an exercise of discretionary authority by the city employee and such superior shall assign the matter to another employee. 2. The present Division 2, "Financial disclosure by officers and candidates", is redesignated as Division 4. Sections 256 through 2-260 in Division 2 are renumbered to Sections 2-261 to 2-265 in Division 4, but the provisions thereof are not other- wise changed. 3. A new Division 2 and Division 3 are addedrthere- to, which divisions shall read as follows: DIVISION 2. ETHICS REVIEW COMMITTEE Sec. 2-240. Required functions. There is hereby created an ethics review committee. It shall have the duty and power, unless otherwise pro- vided, to rule upon the appropriate disposition of alle- gations of violations of division 1 of this article. Sec. 2-241. Members. a) The ethics review committee shall consist of five (5) members. b) The members of the committee shall be appointed by the city council. c) All members shall be residents of the c ity. No member shall hold any city elected or appointed office or be a candidate for any such office. One member of the committee shall be an attorney licensed to practice in the State of Texas. As nearly as is reasonably possible, the membership of the committee shall be fairly representative of all of the several economic, religious, cultural, ethnic and racial groups that comprise the popula- tion of the city The city council shall develop a list of community, civic and professional organiza- tions which shall be invited to make suggestions for appointments to the committee. d) Committee members shall be appointed to two-year staggered terms with the terms of two (2) members to expire on October 1, 1992, with successive two-year terms, and the terms of three (3) members to expire on October 1, 1993, with successive two-year terms. No member shall serve for more than six (6) consecutive years nor be appointed for more than three (3) full terms. e) In addition to the city council's usual powers of removal, members of the committee may be removed by a majority of the city council for a violation of this article. In considering a complaint .filed with the city secretary, the council may follow the procedures hereinafter set forth regarding the disposition of alleged violations of this article. f) All vacancies shall be filled for the unexpired terms. A member shall hold office until his suc- cessor has been appointed by the city council and shall continue to hold office after his successor has been appointed by the city council for the limited purpose of the disposition of all com- plaints filed during that member's term. No member may participate in a decision regarding a complaint initiated prior to the expiration of the previous member's term, but new members shall assume the duties of office with respect to all complainants initiated after the previous member's term. Sec. 2-242. Chairperson; quorum. The committee shall elect a chairperson and a vice- chairperson to one-year terms. The vice-chairperson shall act as chairperson in the absence of the chairper- son or in the event of a vacancy in that position. Three (3) or more members of the committee shall consti- tute a quorum, but no action of the committee shall be 10 of any force or effect unless it is adopted by the favorable votes of three (3) or more of the members. Sec. 2-243. Meetings. The committee shall have regular quarterly meetings and such other meetings as may be necessary to fulfill its responsibilities. The committee shall receive reports of orientations of newly appointed, employed, or elected officers, employees and advisory board members concerning the provisions of this article and copies of opinions related to this article that have been issued by the city attorney since the last meeting. The chair- person or any three (3) members of the committee may call a meeting provided that notice is given to each member and written notice is posted in accordance with provisions of the Texas Open Meetings Act. Sec. 2-244. Duties. a) The committee shall, in addition to its other duties: 1) Prescribe forms for reports, statements, notices, and other documents required by this article; 2) Prepare and issue advisory opinions and pub- lish materials explaining the duties of indi- viduals subject to this article, including city officers, employees and board members; 3) Cause sufficient copies of this ordinance, and other ordinances, city charter provisions and state statutes defining and prohibiting conflicts of interest, to be prepared and published and see that the same are made available to city officers, employees, advisory board members, elected officials and the general public. 4) Review all statements and reports filed with the committee in order to obtain compliance with this article; 5) Preserve statements and reports filed with the committee for a period of five ( 5 ) years from the date of receipt; 6) Review this article at least annually and make appropriate recommendations to the city council; 11 7) Review all opinions related to this article that are issued by the city attorney; and 8) Report to the city council at least once each year concerning the activities of the commit- tee during the preceding year. b) The committee may: 1) Request the city council and city manager to provide such assistance as it may require in the discharge of its duties; and 2) Provide or assist in providing orientations to city officers, employees and advisory board members concerning the provisions of this article. Sec. 2-245. Staffing. a) When complaints are filed relating to the mayor, city council members, city manager, city attorney, city auditor, municipal court judges, city secre- tary, department heads, and deputies, independent legal counsel shall be selected by the committee to advise the committee and participate in hear- ings. The independent legal counsel shall be selected by the committee on a case-by- case basis. Fee arrangement with such counsel must be approved by the city council. b) Any city officer, employee, advisory board member or candidate for city elective office may request, and the city attorney shall thereupon promptly issue, an opinion concerning the meaning oroeffect of any section, word, or requirement of this article as it affects such officer, employee, advisory board member or candidate. If a complaint is subsequently filed with the ethics review committee about any specific action, omission, or alleged conflict of interest which has been the subject, in whole or in part, of a city attorney's opinion, the independent legal counsel shall act as the committee's attorney on said complaints. c) The city secretary shall provide the public with information and forms developed by the committee regarding this article. d) Consistent with the foregoing provisions, the city attorney shall provide such assistance to the com- mittee as the committee shall request. 12 Sec . 2-246 . Rules The committee may adopt, amend, and rescind rules of procedure to carry out the provisions of this article. Such rules shall be consistent with this article and other applicable laws. DIVISION 3. DISPOSITION OF ALLEGED VIOLATIONS; HEARINGS Sec. 2-247. Complaints. a} A complaint alleging a violation of division 1 of this article shall specify the section thereof alleged to have been violated. The complaint shall be sworn to as true and correct by the com- plainant or some other person(s) having personal knowledge of the facts stated therein. The com- plainant must be a registered voter, if eligible, in the jurisdiction where he resides. b) Upon the sworn complaint being filed with the city secretary's office, the ethics review committee shall consider possible violations of division 1 of this article by city officers, employees and advisory board members and former city officers and employees other than members of the committee. c) Not later than seven working days after the city secretary receives a sworn complaint, the city secretary shall acknowledge the receipt of the complaint to the complainant and provide a copy of the complaint to the city attorney, the committee and the person complained against. Not later than fifteen (15) working days after receipt of~a com- plaint, the committee shall notify in writing the person who made the complaint and the person com- plained against of a date for a preliminary hear- ing or final hearing. If the committee does not hold a preliminary hearing or final hearing within thirty (30) working days after receipt of the com- plaint, it shall notify the person who made the complaint of the reasons for the delay and shall subsequently give him the appropriate notification when a hearing is set. d) A complaint alleging a violation of division 1 of this article must be filed with the city secretary within two (2) years after the commission of the action alleged as a violation and not afterward; provided, however, that the committee will not 13 consider or act on any alleged `violation which has previously been presented to and considered by the city council. Sec. 2-248. Defense of official, employee or advisory board member by city attorney. When a complaint is filed with the city secretary against any officer, employee or advisory board member of the city, alleging a violation of division 1 of this article, if said officer, employee or advisory board member reasonably believed the conduct charged was not prohibited by said division and acted in reasonable reliance upon an opinion rendered by the city attorney, the city attorney shall be authorized to represent the officer, employee or advisory board member before the ethics review committee, or the committee may select private counsel to represent the officer, employee or advisory board member before the committee. Fee arrangements with such counsel must be approved by the city council. Sec. 2-249. Review of complaints by city attorney. a) Not later than seven (7) working days after receipt of a copy of a complaint from the city secretary, the city attorney shall,. where appli- cable, notify in writing the committee, the com- plainant and the person complained against, that, in the city attorney's opinion, the complaint is defective as to form or does not allege conduct which would be a violation of division 1 of this article, and the basis for such opinion. p b) When the complainant is notified by the city attorney that the complaint is defective or insuf- ficient, the complainant may, prior to the prelimi- nary hearing, file a sworn amended complaint with the city secretary. Not later than seven working days after the city secretary receives the amended complaint, the city secretary shall acknowledge receipt of the amended complaint to the com- plainant and provide a copy of the amended com- plaint to the city attorney, the committee and the person complained against. c) The city attorney shall express no opinion concern- ing whether a complaint is defective or insuffi- cient when the person complained against acted in reasonable reliance upon an opinion rendered by the city attorney. 14 Sec. 2-250. Prohibition of ex parte communications. After a complaint has been filed and during the pen- dency of a complaint before the committee, a member of the committee may not communicate directly or indirect- ly with any party or person about any issue of law or fact regarding the complaint except at a meeting of the committee. However, nothing in this section shall pro- hibit communications between members of the committee and the committee's attorney, or between members of the committee concerning whether to call a committee meeting. Sec. 2-251. Preliminary hearing. a) When the city attorney has rendered an opinion that a complaint or amended complaint is defective as to form or insufficient because it does not allege the existence of reasonable grounds to believe that a violation of division 1 of this article has occurred, the committee shall hold a preliminary hearing. The complainant, the person complained against and the city attorney shall be notified in writing of the preliminary hearing. b) The issue at the preliminary hearing sfia11 be whether the complaint is defective as to form or whether the complaint alleges the existence of reasonable grounds to believe that a violation of division 1 of this article has occurred. c) If the complaint is alleged to be defective as to form, the committee shall hear the arguments of the city attorney and the complainant concerning the sufficiency of the form of the complaint. The committee shall then either determine rthat the complaint is sufficient as to form or dismiss the complaint as defective as to form. The decision of the committee shall be in writing and state the reasons for such decision. Before a complaint may be dismissed because it is defective as to form, the complainant shall be permitted one oppor- tunity, within a period to be specified by the committee, to amend and resubmit the complaint. If the committee determines that the complaint is sufficient as to form, it shall schedule a final hearing. d) If the complaint is alleged to be insufficient because it does not state sufficient facts to show that a violation of division 1 of this article has occurred, the committee shall hear the testimony of the complainant who shall state the alleged 15 violation and describe in narrative form the testi- mony and other evidence which would be presented to prove the alleged violation as stated in the complaint. Such testimony shall be under oath, but there shall be no cross-examination or requests for persons or evidence issued for the hearing. Members of the committee may question the complainant. The person complained against shall have the opportunity to respond but is not required to attend or make any statement. The person complained against may describe in narra- tive form the testimony and other evidence which would be presented to disprove the alleged viola- tion. If the person complained against agrees that a violation has occurred, he may so state and the committee may then consider the appropriate sanction. 1) At the conclusion of the preliminary hearing, the committee shall decide whether a final hearing should be held. If the committee determines that there are reasonable grounds to believe that a violation of division 1 of this article has occurred, it shall schedule a final hearing. If the committee determines that there are no reasonable grounds to believe that a violation of division 1 of this article has occurred, the complaint shall be dismissed. Before a complaint is dismissed for failure to allege a violation, the complainant shall be permitted one oppor- tunity, within a period to be specified by the committee, to amend and resubmit the com- plaint. t 2) The complainant and the person complained against may ask the committee at a,prelimi- nary hearing to request certain persons and evidence for the final hearing, if one is scheduled. 3) A decision to conduct a final hearing is not a finding that a violation has occurred. Sec. 2-252. Final hearing. a) When no preliminary hearing is required, the final hearing shall be held as expeditiously as possible following the filing of the complaint, but in no event shall it be held more than thirty (30) days after the filing of the complaint. b) When a preliminary hearing is required, the final hearing shall be held as expeditiously as possible 16 following the determination by the committee that there are reasonable grounds to believe that a violation of division 1 of this article has occurred, but in no event shall it be held more than thirty (30) days after said determination unless a postponement is granted upon request of the person complained against. The committee may grant two (2) postponements, not. to exceed fifteen (15) days each, upon the request of the person complained against. c) The issue at a final hearing shall be whether a violation of division 1 of this article has occurred. The committee shall make its determina- tion based on the preponderance of the evidence (the greater weight and degree of the credible evidence and testimony). All witnesses shall make their statements under oath. If the committee determines that a violation has occurred, it shall state its findings in writing, shall identify the section of division 1 of this article which has been violated, and within five (5) working days thereafter shall deliver a copy of the findings to the complainant, the person complained against and the city secretary. If the committee determines that no violation has occurred, it shall state its determination in writing and within five (5) working days thereafter shall deliver a copy of the determination to the complainant, the person complained against, and the city secretary. Such determination of the committee shall be final unless appealed from within 10 days as provided in Section 2-256(b). Sec. 2-253. Oaths, requests for subpoenas and P information. If a complaint proceeds to a final hearing, the commit- tee may administer oaths and affirmations, take evi- dence, request and issue subpoenas for witnesses to attend and testify, and request and issue subpoenas for the production of books, papers, .records, or other evi- dence needed for the performance of the committee's duties or the exercise of its powers. Subpoenas are subject to the provisions of section 2-258. Sec. 2-254. Expedited hearing schedule. For good cause shown by the person complained against, the committee may shorten the hearing schedule estab- lished in Sections 2-247, 2-249, 2-251 and 2-252. 17 Sec. 2-255. Sanctions to be imposed or recommended by committee . a) If the committee determines that a violation of division 1 of this article has occurred, it shall proceed directly to determination of the appro- priate sanctions. The committee may receive addi- tional testimony or statements before considering sanctions but is not required to do so. If the person complained against acted in reliance upon an opinion of the city attorney, the committee shall consider the fact. b) If the committee determines that a violation of division 1 of this article has occurred, it may impose or recommend the following sanctions: 1) A letter of notification shall be the appro- priate sanction when the violation is clearly unintentional, or when the conduct of the person complained against was done in reli- ance upon an opinion of the city attorney. A letter of notification shall advise the officer, employee, or advisory board member to whom it is directed of any steps to be taken to avoid future violations. The com- mittee may direct a letter of notification to any officer employee or advisory board member covered by division 1 of this article. 2) A letter of admonition shall be the approp- riate sanction in those cases in which the committee finds that the violation is minor and/or may have been unintentional, but calls for a more substantial response than a~letter of notification. The committee may admonish any officer, employee or advisory board member covered by division 1 of this article. 3) A reprimand shall be the appropriate sanction when the committee finds that a violation has been committed intentionally or through disre- gard of division 1 of this article. The committee may reprimand any officer, employee or advisory board member covered by division 1. A reprimand directed to a city employee shall also be sent to the city manager and included in said employee's personnel file. 4) A recommendation of removal or suspension from office or employment, as well as a recom- mendation for length of suspension, shall be the appropriate sanction when the committee finds that a serious or repeated violation of 18 division 1 of this article has been committed intentionally or through culpable disregard of division 1 of this article by an appointed city officer, employee or advisory board member. A recommendation of removal from office or a recommendation of suspension from office for an officer, employee, or advisory board member appointed by the city council shall be transmitted to the city council. The final authority to carry out such recom- mendations to remove from office or suspend from office and the length of the suspension shall be with the city council. A recommenda- tion for removal or suspension of a city officer or employee appointed by the city manager shall be directed from the committee to the city manager and the officer or employee may appeal from any such committee recommendation to the manager. In such cases the final authority to carry out a recommenda- tion to remove or suspend from such an office or employment and the length of the suspen- Sion shall be with the city manager. The city manager shall notify the committee of the personnel action, if any, which he takes against an officer or employee as a result of the committee's recommendation. 5) A letter of censure, a recommendation of recall, or a recommendation to institute pro- ceedings for removal from office shall be the appropriate sanction when the committee finds that a serious or repeated violation of division 1 of this article has been committed intentionally or through culpable disregard of division 1 of this article by an elected city official. A letter of censure,Ta recom- mendation of recall, or a recommendation to institute proceedings for removal from office, directed to an elected city official, shall be transmitted to the city secretary and to the city council. Any recall proceed- ings shall be subject to the procedures spe- cified in the city charter. Any proceedings for removal from office shall be in compli- ance with provisions of the city charter and state law. Sec. 2-256. Appeal to city council from certain committee determinations. a) Under the provisions of this section, the commit- tee's determination whether or not a violation of division 1 of this article has occurred, or whether or not a complaint is defective or fails to allege a violation, may be appealed by either 19 the complaining party or a p art y c o m p l a i n e d against who is an officer or advisory board member appointed by the city council or an elected official of the city. b) The committee's determination whether or not a violation of division 1 of this article has occurred, involving an officer, employee, or advisory board member complained of who is appointed by the city council or who is an elected official of the city, or whether or not a complaint is defective or fails to allege a violation, is final unless a written appeal is filed with the chairperson of the committee and the city secretary within ten (10) days after the committee's determination. c) 'The party who desires to appeal to city council must file his written appeal stating sufficient facts to show that: 1) the committee was prejudiced in its delibera- tions; or 2) new evidence is available which was not con- sidered by the committee; or 3) the committee committed some error in its deliberations. d) The city secretary shall forward the appeal to the city council with a report of the committee's determination. The city council shall consider such written appeal, hear a statement from the complainant and the officer, employee or advisory board member or elected official, and shall:° 1) Deny the appeal in its entirety; or 2) If city council finds that the written appeal states sufficient facts to satisfy the requirements of paragraph c) above, schedule its own evidentiary hearing on the appeal or refer the appeal to an independent hearing officer for an evidentiary hearing as pro- vided in paragraph f) below. e) If the city council schedules its own evidentiary hearing on the appeal, the following procedures shall apply: 1) Such hearing shall be held within thirty (30) days after the council decides to hear the appeal. Council may grant two (2) postpone- ments, not to exceed fifteen (15} days each, 20 upon the request of t h e c i t y o f f i c e r, advisory board member or elected official complained against. 2) The hearing of the appeal before the council shall be de novo (a completely new hearing). The issue at such hearing shall be whether a violation of division 1 of this article has occurred. 3) At the hearing of the appeal, the city council may administer oaths and affirma- tions, take evidence, request and subpoena witnesses to attend and testify, and request and issue subpoenas for the production of books, papers, records or other evidence relevant to the alleged violation. All wit- nesses shall testify under oath. f) As an alternative to scheduling its own evi- dentiary hearing on the appeal as provided in e) above, the council may appoint a hearing officer to conduct such a hearing and the following proced- ures shall apply: Z) The hearing officer shall have the power to compel witnesses to appear before him at such times and places as he may direct, for the purpose of hearing testimony under oath and receiving evidence on behalf of the city council concerning whether a violation of division 1 of this article has occurred. The hearing officer shall have the authority to administer oaths and affirmations, take evi- dence, request and subpoena witnesses to attend and testify, and request and issue subpoenas for the production of, books, papers, records or other evidence relevant to the alleged violation (subject to section 2-258). 2 ) The hearing officer and evidence trap writing by a court the transcript with such time as is council. shall have such testimony scribed and reduced to reporter and shall file the city secretary within specified by the city 3) The hearing officer shall have the power to make rulings concerning the relevancy and admissibility of the evidence and testimony presented to and heard by him, however, he shall not make any recommendation to the city 21 council concerning whether a violation of division 1 of this article has occurred. 4) The transcript of the testimony and evidence presented to the hearing officer shall form the evidentiary basis for a hearing to be held before the city council concerning whether a violation of division 1 of this article has occurred. 5) No evidence or testimony shall be presented at the hearing before the city council other than the aforesaid transcript, however, the complainant and the person complained against shall be entitled to present oral or written arguments to the council concerning whether the testimony and evidence in the transcript establish that a violation of division 1 of this article has occurred. g) Upon completion of either of the hearing proced- ures specified in e) or f) above, the council shall determine, based on the preponderance of the evidence (the greater weight and degree of the credible evidence and testimony) whether a viola- tion of division 1 of this article has occurred. If the council determines that a violation has occurred, it shall state its findings in writing, shall identify the particular section of division 1 of this article which has been vio- lated, and within five working days thereafter shall deliver a copy of the findings to the com- plainant, the person complained against and the city secretary. h) The council may adopt rules of procedure for the hearing of an appeal. Such rules shall be consistent with the provisions of this article and other applicable laws. i) If the council determines that a violation of division 1 of this article occurred,. it shall pro- ceed directly to determination of the appropriate sanctions. The council may receive additional testimony or statements before considering sanc- tions but is not required to. do so. If the appointed city officer, employee, advisory board member or elected official complained against acted in reliance upon an opinion of the city attorney, the council shall consider that fact. j) If the council determines that a violation has occurred, it may impose or recommend the following sanctions: 22 1) A letter of notification shall be the appro- priate sanction when the violation is clearly unintentional, or when the appointed officer, employee, advisory board member or elected official's conduct complained of was made in reliance on an opinion of the city attorney. A letter of notification shall advise the appointed officer, employee, advisory board member or elected official to whom it is directed of any steps to be taken to avoid future violations. The Council may direct a letter of notification to any officer, employee, or advisory board member appointed by the City Council, or elected official covered by division 1 of this article. 2) A letter of admonition shall be the appro- priate sanction in those cases in which the council finds that the violation is minor and/or may have been unintentional, but calls for a more substantial response than a letter of notification. 3) A reprimand shall be the appropriate sanction when the council finds that a violation has been committed intentionally or through dis- regard of division 1 of this article. 4) A removal from office or suspension from office shall be the appropriate sanction when the council finds that a serious or repeated violation of division 1 of this article has been committed intentionally or through cul- pable disregard of division 1 of this article by an appointed city officer, employee, or advisory board member. 5) A letter of censure, a recommendation of recall, or proceedings far removal from office shall be the appropriate sanction when the council finds that a serious or repeated violation of division 1 of this article has been committed intentionally or through cul- pable disregard of division 1 of this article by an elected city official. A letter of censure, a recommendation of recall, or deci- sion to institute poroceedings for removal from office, directed to an elected city official, shall be transmitted to and filed with the city secretary. Any recall pro- ceedings shall be subject to the procedures specified in the city charter. Any proceed- ings for removal from office shall be in com- pliance with provisions of the city charter and state law. 23 k) Any sanctions imposed by the city council on an appointed city officer, employee, or advisory board member pursuant to this section shall be by majority vote of the city council. Any sanctions imposed by the city council on an elected city official pursuant to this section shall be by majority vote of the remaining members of the city council. 1) This section shall not apply to officers and employees who are appointed by the city manager. The authority to discipline, suspend or remove such officers and employees shall be with the city manager. Sec. 257. Criminal penalties. Except where otherwise provided by state law or in section 2-258, it is not the intention of the city council in adopting this article that violations thereof be subject to criminal penalties. Sec. 258. Subpoenas. a) The ethics review committee or hearing officer, at their discretion, may issue one or more subpoenas for the attendance of wit- nesses, the production of books, papers, records or other evidence needed for the performance of their duties or exercise of their powers. The subpoena shall be issued on the sworn application (of either the complaining party or the person complained against) stating that the applicant in good faith believes that such item exist, and stating in detail a description of any such items, sufficient to be able to identify such item, that the party requesting the subpoena has not been able to obtain such item other- wise, and that the applicant in good faith believes that the item is in the possession or control of a person or entity whose name and address is specified in the sworn applica- tion. b) The committee or hearing officer may issue any such subpoena upon terms and conditions that they deem applicable. c) The party requesting the subpoena, or the party to the proceeding opposing it, and the person or business entity against whom the subpoena is sought each has the right to appeal to the city council any decision by the committee or hearing officer concerning the request for subpoena. Such appeal shall 24 be made in writing within ten (10) days after the committee or hearing officer's decision (which must be in writing) by filing such appeal with the city secretary. d) All proceedings before the committee or hear- ing officer shall be stayed until after the city council acts on the appeal. e) When the city council denies such an appeal, if any, or the time for an appeal has expired, any person who is subpoenaed by the committee or hearing officer to give testi- mony or to produce books, papers, records or other evidence needed for the performance of the committee or hearing officer's duties or the exercise of their powers, willfully makes default or refuses to answer any question pertinent to the proceedings before the com- mittee or hearing officer, or refuses to obey any subpoena or fails to produce books, papers and other evidence required by the committee or hearing officer, shall be deemed guilty of a misdemeanor and may be fined not more than Five Hundred Dollars ($500.00} for each offense. Each day that a violation is permitted to exist shall constitute a sepa- rate offense. Sec. 2-259. Evidence of criminal conduct. During the performance of their duties under the provi- sions of this article, if the ethics review committee, hearing officer, city manager or city council receives evidence of criminal conduct, the committee, hear°ing officer, city manager or council may provide such evi- dence to the prosecuting attorney having jurisdiction of such matter for appropriate action. Sec. 2-260. Postponement of hearings in certain cases. If a complaint alleges facts concerning a possible vio- lation of division 1 of this article and such facts are involved in a criminal investigation or a criminal pro- ceeding before a grand jury or the courts, the ethics review committee, hearing officer, city manager or city council may, when they deem appropriate, postpone any hearing or any appeal concerning such complaint until after the criminal investigation or criminal proceed- ings are terminated. 25 SECTION II. This ordinance shall be cumulative of all provisions of ordi- nances and of the Code of the City of Fort Worth, Texas (1986), as amended, except where the provisions of this ordinance are in direct conflict with the provisions of such ordinances and such Code, in which event conflicting provisions of such ordinances and such Code are hereby repealed. SECTION III. It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and, if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality shall not affect any of the remaining phrases, clauses, sentences, para- graphs and sections of this ordinance, since the same would have been enacted by the City Council without the incorporation in this ordinance of any such unconstitutional phrase, clause, sen- tence, paragraph or section. SECTION IV. The City Secretary of the City of Fort Worth, Texas is hereby directed. to engross and enroll this ordinance by copying the caption and Section V in the minutes of the City Council and by filing the ordinance in the ordinance records of the City. SECTION V. The City Secretary of the City of Fort Worth is hereby directed to publish the caption, Section 2-258, and the effective 26 date of this ordinance for two (2) days in the official newspaper of the City of Fort Worth, Texas, as authorized by Section 52.013, Texas Local Government Code. SECTION VI. This ordinance shall take effect and be in full force and effect from and after its passage, and it is so ordained. APPROVED AS TO FORM AND LEGALITY: Cti~-/ City Attorney Date : 6 - ~ (o - ~ ~ ADOPTED • lP J ~ le " GI D EFFECTIVE • ~ _ ~'1 7 2?