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HomeMy WebLinkAbout2011/02/15-Minutes-City Council-Special CalledCITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Present Mayor Mike Moncrief Council Member Salvador Espino, District 2 Council Member W. B. "Zim" Zimmerman, District 3 Council Member Frank Moss, District 5 Council Member Carter Burdette, District 7 Council Member Kathleen Hicks, District 8 Absent Council Member Joel Burns, District 9 City staff Tom Higgins, Interim City Manager Sarah Fullenwider, City Attorney Peter Vaky, Deputy City Attorney Marty Hendrix, City Secretary Ethics Complainants Jim Ashford, Complainant, Ethics Complaint No. 2010 -01 Louis McBee, Complainant, Ethics Complaint Nos. 2010 -03 and 04 Persons Complained Against Council Member Danny Scarth, District 4 Council Member Jungus Jordan, District 6 Donald E. Herrmann, Attorney with Kelly Hart & Hallman LLP, representing Council Members Others Present Mark G. Daniel, attorney representing the Ethics Review Committee With a quorum of the City Council Members present, Mayor Moncrief called the called - special session of the Fort Worth City Council to order at 2:00 p.m., on Tuesday, February 15, 2011, in the Pre - Council Chamber, 1000 Throckmorton Street, Fort Worth, Texas 76102. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 2 of 37 City Council Hearing on Appeal of Findings by the City's Ethics Review Committee in Cause No. 2010 -01, a Complaint Filed Against Council Members Jungus Jordan and Danny Scarth by Fort Worth Resident Jim Ashford Overview of Previous Hearings /Findings — City Attorney (Agenda Item 2) (Agenda Item 2 -a) Mayor Moncrief requested City Attorney Sarah Fullenwider provide an overview of the proceedings that were to take place at this meeting. City Attorney. Sarah Fullenwider advised that this special meeting of the Fort Worth City Council had been called to hear appeals of the findings issued by the City's Ethics Review Committee in Cause No. 2010 -01, filed by Fort Worth resident Jim Ashford against Council Members Danny Scarth and Jungus Jordan and Cause No. 2010 -03 and Cause No. 2010 -04, filed by Fort Worth resident Louis McBee, which were ethics complaints filed against Council Member Danny Scarth and Council Members Danny Scarth and Jungus Jordan, respectively. Using a PowerPoint presentation, City Attorney Fullenwider provided background information on the first appeal to be heard by the City Council, which was Cause No. 2010 -01 to the findings by the City's Ethics Review Committee to a complaint filed by Mr. Jim Ashford on March 29, 2010, and amended on July 28, 2010. City Attorney Fullenwider stated that the complaint alleged that Council Members Jungus Jordan and Danny Scarth had a substantial interest in Chesapeake and XTO, respectively, and thus should have disclosed that fact and not participated in the following matters: 1. An amendment to the gas drilling ordinance which was voted on by the City Council on December 16, 2008; 2. Amendments to the Comprehensive Zoning Ordinance related to various gas drilling matters (ZC -09 -016, March 3, 2009); 3. Discussions regarding possible amendments to the gas drilling ordinance at the February 2, 2010, Pre - Council meeting; and 4. The appointment of two employees of Chesapeake and XTO as members to the Air Quality Study Committee. City Attorney Fullenwider stated that the complaint alleged that the four actions violated Section 2 -236, 2 -238 and 2- 239(a) of the Code of Ethics. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 3 of 37 Overview of Previous Hearings /Findings — City Attorney — Cause No. 2010 -01 (cont'd) (Agenda Item 2 -a) City Attorney Fullenwider advised of the timeline for the hearings before the Ethics Review Committee (ERC) as follows: 1. May 20, 2010: ERC Preliminary Hearing 2. September 24, 2010: ERC final hearing 3. Quorum of three (3) members were present (Members Hortenica Laguna and Rebecca Lucas were not present but had been notified of the hearing.) 4. ERC heard evidence and considered arguments of the complainant and respondents City Attorney Fullenwider presented the ERC findings as follows: • None of the actions cited by the complainant violated the "substantial interest" provisions of the Code because Chesapeake and XTO were not involved in those matters and no issues involved a decision concerning real property. • No violation of Section 2 -236 occurred because that section was only a declaration of policy. City Attorney Fullenwider advised that the appeal filed by Jim Ashford on October 4, 2010, alleged the ERC errored as follows: • By hearing the case with only three new members present and without the two remaining members (Ms. Laguna and Ms. Lucas); • In its determination that Section 2 -239 was not violated in that Chesapeake and XTO were involved with the Gas Drilling Task Force by holding positions on the Task Force and the ordinance directly affected these companies and regulated the way the companies conducted their oil and gas business; and • By failing to find that Mr. Scarth and Mr. Jordan had a substantial interest in XTO and Chesapeake, respectively, and should have disclosed this interest and abstained from voting. City Attorney Fullenwider advised that the City Council options in this hearing were to hear from Mr. Ashford, the complainant, and to hear from Council Members Jordan and Scarth or their representative, close the public hearing and determine whether: CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 4 of 37 Overview of Previous Hearings /Findings City Attorney — Cause No. 2010 -01 (cont'd) (Agenda Item 2 -a) • The ERC was prejudiced in its deliberations; • New evidence was available that was not considered by the ERC; or • The ERC committed some error in its deliberations She stated that if the answer was "no ", the Council should deny the appeal in its entirety. She stated that if the answer was "yes ", then the City Council should hold an evidentiary hearing, either by the City Council or a hearing officer. She pointed out that if a hearing officer conducted a hearing, then the officer would report back their findings to the City Council for further action. City Attorney Fullenwider completed her presentation. Council Member Hicks requested to know who the Hearing Officer would be. City Attorney Fullenwider responded that the City Council would select the hearing officer. She also clarified that the hearing officer would not make the final determination, they were just making findings of facts, which then the Council would consider those findings in another appeals hearing. Mayor Moncrief clarified with City Attorney Fullenwider if each appeal was to be heard separately or altogether. City Attorney Fullenwider explained that it was separately and Mr. Ashford's appeal was the first appeal to be heard, Cause No. 2010 -01. Argument by Complainant — Jim Ashford (Agenda Item 2 -b) Mayor Moncrief requested Mr. Ashford provide his argument to the City Council regarding Cause No. 2010 -01. Jim Ashford, 6209 Riverview Circle, Fort Worth, Texas 76112, spoke before the City Council regarding his appeal. Mr. Ashford expressed his appreciation to the City Council for hearing him. He stated that he was a little confused as to why there was a necessity on his part to prove a reason for the Council to hear this appeal. He added that when an appeal was requested to hear a previous charge against three gas drilling employees that had been awarded in his favor by the Ethics Review Committee and which the City Council ultimately overruled, there was no hearing required of them to justify anything to proceed directly into a hearing on that matter. Mr. Ashford questioned the reason that he had to do so. He stated that he had to wonder if it was because the City Council did not like him or was it because the gas drilling industry got CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 5 of 37 Argument by Complainant — Jim Ashford (cont'd) (Agenda Item 2 -b) an automatic pass. He indicated the reason this case should be heard was for the following reasons: The Ethics Review Committee committed an error in its deliberations of Cause No. 2010 -01 with the hearing itself. He stated the ethics hearing was held with only three (3) new members present. He added that in itself violated the assurances by the City Council to the citizens of Fort Worth, and him, there would be five (5) ERC members hearing the current cases, which would include this one. Mr. Ashford stated that the Mayor stated at the August 24, 2010, City Council meeting, "these hearings would be heard by the old members, with the new members, with the current chair, and the new members." Mr. Ashford stated that Council Member Hicks spoke of ensuring that the City would have a full ERC for all future hearings at that meeting. Mr. Ashford then requested that video excerpts of that meeting be shown on a DVD disk that he had provided to City staff and he stated that the City Council would hear what the citizens were assured. A variety of sequences were shown from the Council Meeting held on August 24, 2010, to the City Council Members. Mr. Ashford stated that Council Member Hicks even requested clarification at that Council meeting, prior to any vote to approve those members, and was assured by the City Attorney there would be three (3) new members with the two (2) remaining members. He stated that the City Council specifically requested, and was assured by the City Attorney, that there would be five (5) members to hear this and other cases. Mr. Ashford stated, "again, the Mayor also spoke of the necessity of having a full committee for all future hearings." Mr. Ashford stated that when this hearing, following the Council meeting was scheduled, there was one postponement of Cause No. 2010 -01, this case, and he was told it was because one of the new members was unavailable. He added he was not told the two (2) original members would not be available. Mr. Ashford stated that there was now reason to believe the City Attorney, the ERC and perhaps the City Council were aware the two (2) original members would no longer be members at these hearings. He stated that since that meeting had already been postponed once due to the inability of everyone being able to attend, it should have been postponed until the City Council could resolve this issue. He pointed out that it was not resolved. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 6 of 37 Argument by Complainant — Jim Ashford (cont'd) (Agenda Item 2 -b) Mr. Ashford stated that instead of having a full committee of five (5) members as the Council had assured him, there were only the three (3) new members who knew virtually nothing about this or other cases. Mr. Ashford stated that in addition under the current rules, it required a majority vote to prevail in a case. He stated that if there were five (5) members present, it required three (3) votes to prevail. He stated that was 60 percent of the committee. He stated that if only three (3) members were present, it still required three (3) votes. He stated that was 100 percent vote. Mr. Ashford stated that the meeting on Cause No. 2010 -01 should not have occurred under this unfair and questionable cloud. He stated that in his opinion, the ERC did not act in an honorable manner, as there were numerous questions about the committee make -up. Mr. Ashford stated that committee obviously did not appear to think it was important to respect what the Council had told the citizens or the fairness to him. Mr. Ashford stated that there were additional problems. He stated that the ERC itself did not have a quorum present as required. He stated that one (1) of the three (3) members was ineligible to serve on the committee. He cited Section 2 -241 of the City of Fort Worth's Ethics Code as follows: "paragraph (c) Members stated, no member shall hold any city elected or appointed office." Mr. Ashford stated that Mr. Hernandez held the office appointed by the City and served on the D /FW International Airport Board. He stated that the D /FW International Airport Board position was appointed by the City Council. Mr. Ashford repeated the contents of that section of the Code. He added that Mr. Hernandez was appointed by the City to an office on the D /FW International Airport Board. He stated that the City of Fort Worth's official web site listed the boards, commissions and committees of Fort Worth. He provided to the Council a printed copy of that site. Mr. Ashford referenced page 2. He stated that the City's official web site listed the D /FW International Airport Board as a board. He then referenced the City's Code of Ordinances, Division 3 — Rules and Procedures for Certain City Boards, Section 2 -81, paragraph (1) Definition. He stated as used in that section, "the term "City board" shall mean any board, commission, committee or other body, which is created by the City Council and is not required to exist by the City Charter or state law." Mr. Ashford stated that the City Charter or state law did not require the Airport Board; it was required by a contract with Dallas and was created by the City Council with Resolution 521 in 1977 or 1978. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 7 of 37 Argument by Complainant — Jim Ashford (cont'd) (Agenda Item 2 -b) Mr. Ashford referenced Division 3, Rules for City Board, Section 2- 83(b), which included board provisions for the Dallas /Fort Worth International Airport Board, as a board. He cited this section as follows: "Those boards excepted from the provisions of this section regarding the number of members serving on the board, and regarding the length of terms of service, because of conflicting state law, city charter provision or city council exception, shall include currently, but shall not be limited to, the following: Civil Service Commission; Dallas /Fort Worth International Joint Airport Zoning Board; Meacham Field Joint Airport Zoning Board; City Council exception (ordinance); Dallas /Fort Worth International Airport Board; state law exception." Mr. Ashford stated that the state law exception referred only to how many board members were allowed or required on the airport board. Mr. Ashford stated that Section 2 -241 of the Code of Ethics paragraph (c) stated one (1) member of the committee shall be an attorney. He added it did not say at least one, nor did it say one or more. He stated it stated one (1). He added one (1) and only (1) was specified. He pointed out that the City's ERC had three (3) attorneys, not one. Mr. Ashford stated for an example that if he brought the City Council a cake and had been instructed that it should have one candle, how many candles would the City Council expect to see? He stated "one." He added that he saw three (3) candles on this cake. Mr. Ashford stated that paragraph (c) went on to say, "as reasonably as possible the membership of the committee shall be fairly representative of all of the population of the city." He added that three (3) attorneys on this committee were not representative of the city. He stated this committee was made up containing 60 percent attorneys. Mr. Ashford stated that the ERC consisted of ineligible members that were not eligible to serve on the ERC. He stated that there was no quorum. Mr. Ashford stated that the intent of the Council was clear to the public in what was intended at the Council meeting on August 24, 2010. He stated that in spite of this information being presented to the three (3) ERC Members before the hearing, they ignored his and Mr. McBee's concerns and the information provided to them. He stated that it was known weeks in advance the two (2) original members would not be there. He stated that there was not even a name card on the table for the two (2) missing members. He stated that there were name cards for the new members and their attorney, but not for the two (2) whom they knew would not be there. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 8 of 37 Argument by Complainant — Jim Ashford (cont'd) (Agenda Item 2 -b) Mr. Ashford stated that the fair, reasonable and proper action would have been to adjourn the meeting. He added that since they already knew the original members were not going to participate, they should have informed the Council about the situation, and that the Council's wishes of having a full committee with the current chair was not possible. He stated that there had already been one postponement, so another would have been the logical thing to do and get things in order. He stated that proper action could have been taken and everyone could have proceeded. He reiterated the three (3) ERC Members violated the Ethics Code, Section 2- 241(c). He reiterated that there were excessive attorneys, and one (1) individual on the committee that already held a city appointed office. Mr. Ashford referenced paragraph (g) of the Ethics Code that stated "members of the committee shall be independent in fact and appearance when hearing matters brought before the committee." Mr. Ashford stated that he had reason to question these three (3) members' ability to be impartial. He stated that in his opinion, their decision had already been made before the hearing. He stated that the committee seemed to disregard the City's ordinances and the Texas local codes to deny these charges. He stated that he had to question why they would do that. He added that the Committee misapplied and misinterpreted Article 7, Code of Ethics, Section 2- 239. He stated that the disclosure of interest, as was stated in the verbal reading of the findings was as follows: "(a) If any city officer has a substantial interest in any person, group or business entity involved in any decision pending before such officer or the body of which he or she is a member, such officer shall disclose such interest and shall not vote or otherwise participate in the consideration of the matter." Mr. Ashford stated the ERC's findings stated they did not see how Chesapeake or XTO would be "involved" or "involved in any decision" as used in Section 2 -239 Disclosure of Interest. He stated that he believed that they erred in this determination. He added that it was not reasonable to say Chesapeake and XTO were not "involved" with the Gas Drilling Task Force. He stated that included in the Code's definition of "involved" would also mean "included." Mr. Ashford stated that Chesapeake and XTO had individual employees or lobbyists on the Task Force making the recommendations to the City Council, which Mr. Scarth and Mr. Jordon were to vote on. He stated that both XTO and Chesapeake had numerous individual meetings with the Mayor and other Council Members, along with City staff. He stated that they presented information at the public hearings and City Council meetings for the Council to CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 9 of 37 Argument by Complainant — Jim Ashford (cont'd) (Agenda Item 2 -b) consider. He stated that perhaps most important was that the ordinance, once passed, regulated the way Chesapeake and XTO would do business within the City of Fort Worth. He stated that it was impossible to separate the two (2) largest gas - drilling companies from the industry these ordinances regulate. He stated that to state Chesapeake and XTO is or was not "involved" would be unreasonable for any prudent person to find acceptable. Mr. Ashford stated that Section 2 -239 (a) had a much broader application than applied to the above example. He stated how the ERC chose to interpret the ordinance was an unreasonably narrow and incorrect application of the wording. Mr. Ashford stated that in Section 2- 239(a), the rule was very clear, if not emphatic, when it stated; "If any city officer has a substantial interest in any business entity, involved in any decision pending before such officer, or the body of which he is a member (they are on the City Council), such officer shall disclose such interest and shall not vote or otherwise participate in the consideration of such matter." He stated that Council Member Scarth and Council Member Jordon have acknowledged they do have such interests. Mr. Ashford stated that the Code of Ethics was written to provide its citizens with the broadest range of protection from potential wrongdoing by its appointed and elected officials as was outlined by Section 2 -236, declaration of policy and the entire Article 7, Code of Ethics. Mr. Ashford stated that specific information would be presented during the hearing to support his charges. Mr. Ashford completed his comments. At this time, Mayor Moncrief called upon Mark G. Daniel, the attorney for the ERC, to speak on the matter regarding a quorum of the ERC. Mr. Daniel explained that the committee consisted of five (5) members. He explained that Reverend Daniels had resigned from the committee due to health concerns. He stated that the other two (2) remaining members were Rebecca Lucas and Hortenica Laguna, who had previously served as the Chair. He advised that Ms. Lucas and Ms. Laguna had been informed of the meeting and had sent a message back that they were not planning on attending. He stated as to the matter of a quorum, there were three (3) of the five (5) members present at the meeting, Mr. Aldridge, Mr. Hernandez and Ms. Roby. He stated that there was a majority present, three (3) out of the five (5) members constituted a quorum. He added that prior to the meeting, and he CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 10 of 37 Argument by Complainant — Jim Ashford (cont'd) (Agenda Item 2 -b) did not remember who brought the dialogue up, there was discussion, something to the effect and it might have come from the City Secretary's Office that the ERC cannot make members attend. He stated that on that measure as he remembered, the present members selected Mr. Aldridge as the Chair and the meeting went forward with a valid quorum. Mr. Ashford interrupted and stated that the City Attorney advised the ERC that Mr. Hernandez was not on a City board. He stated that he was on a City board and he was ineligible to serve and he is ineligible to serve. Mayor Moncrief requested that City Attorney Fullenwider respond. City Attorney Fullenwider stated that they had talked about an "officer" or someone that was an "appointed member." She stated that he was appointed by the City Council to the airport board, but he was not an appointed officer. She added that would be someone similar to the City Manager. She stated that the opinion by the City Attorney at that time was that he was eligible to serve. Argument by Persons Complained Against — Attorney Don Herrmann (Agenda Item 2 -c) Mayor Moncrief recognized Don Herrmann, the attorney representing Council Members Scarth and Jordan. Mr. Herrmann indicated that his comments were going to be brief and pointed out that detailed information had been provided to the City Council Members, including the ERC's opinions, which he felt were thorough and self - explanatory. He stated that he would not bother to address Mr. Ashford's challenge to either the composition of the ERC or the honor or integrity of its members. He simply stated that he was in attendance at the hearing and he stated that he did not recall hearing Mr. Ashford ask that the meeting be postponed for any purpose or any period of time. He stated that he did not think that issue ever arose at least according to his recollection. Mr. Herrmann stated that he felt the appeal raised two issues only; one was the challenge to the composition of the ERC. He stated that the other was the votes or the concerns for votes of Council Members Scarth and Jordan on the composition of the Air Quality Study Committee. He stated that the evidence at the hearing was clear; the persons selected and voted on were selected through a process conducted by City staff. He added the selection process was purely a Council decision, XTO and Chesapeake had no direct involvement whatsoever. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 11 of 37 Argument by Persons Complained Against — Attorney Don Herrmann (cont'd) (Agenda Item 2 -c) Council Member Hicks interrupted and questioned as to whether the City Council was hearing each case one by one. She stated that Mr. Herrmann was talking about whether Council Members Jordan and Scarth could participate in these votes. She stated that she thought that the first thing that the City Council was looking at specifically was whether the ERC should have been looking at this in the first place. She asked whether the City Council could deal with that issue first. Mayor Moncrief stated that the Council certainly could; however, he felt the City Council was also responding to earlier discussions by Mr. Ashford about those votes. Mr. Herrmann interjected and stated that as he understood the appeal on matter 2010 -01, it raised two (2) issues. He stated that the first issue had to do with the composition of the ERC. He stated that the second issue had to do with Council Members Scarth and Jordan's votes. Council Member Hicks stated that she understood that and she was wondering if they had something to say specifically about that issue because so far all the City Council had heard was from Mr. Ashford was specifically about the makeup of the ERC. She asked if he had other statements to make or were his statements completed. She added that she was completely confused by the process. She then asked Mr. Ashford if he had other comments to make specifically about Council Member Scarth and Jordan voting on certain issues or was the City Council about to vote or what. She added that she did not know and stated she felt she was in "no man's land." Mayor Moncrief stated to Council Member Hicks that Mr. Ashford's comments had included comments regarding the voting in his earlier presentation. He added that was what he had heard. Mayor Moncrief requested Mr. Herrmann continue with his comments. He stated that the evidence at the hearing and as the ERC's opinion showed was that Chesapeake and XTO had no direct involvement in the selection or the vote on the members of the Air Quality Study Commission and in the absence of the involvement of Chesapeake and XTO, there would be no reason under the Ethics Code for an abstention by either Council Member Scarth or Council Member Jordan, even if one assumed, and he was not sure it was an accurate assumption, that they had a disqualifying substantial interest in those companies. He stated for that reason, the ERC did not commit any error in its rulings. Mr. Herrmann completed his comments. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 12 of 37 Mayor Moncrief opened the floor for any questions to Mr. Herrmann. Argument by Persons Complained Against — Attorney Don Herrmann (cont'd) (Agenda Item 2 -c) City Attorney Fullenwider indicated that she wanted to clarify one thing that Mr. Ashford brought up in his comments. She referenced Section 2 -241 stated that no member of the Ethics Review Committee shall hold a city elected or appointed office. She then referenced the definition of "officer" that meant any member of the City Council and any appointed member of a board, commission or committee established by ordinance or under state law. She stated that a person could be a city officer and serve on a board but not be an appointed office. She stated that there was a distinction between the two whether or not a person was a city officer or an appointed office. She added that she wanted to make that clear. Mayor Moncrief asked Mr. Ashford if he had any closing arguments. Rebuttal by Mr. Ashford Mr. Ashford stated that in regards for not asking for a continuation, he indicated that it was his suggestion at the ERC meeting to postpone the meeting and send it back to the City Council because they knew that it was not what they had been assured, that there would have been five (5) members. He stated as a matter of fact at the Council meeting, the City as a whole was assured that there were going to be five (5) members. He stated that there were three (3) members. He added the City staff knew before even the Council meeting that those two (2) members would not be present. He stated the two (2) members that were still there and still eligible had sent in a letter and had said that the Mayor had terminated them. He stated that was the terminology that they had used. He stated that the Mayor had the authority to do so. He added the City Attorney at that time stated that the Mayor did not have that authority. Mr. Ashford indicated that the Mayor did have the authority. He added that was what was stated in the ordinance. He stated that he did ask for an extension because things were not in order. He stated that the other issue had to do with whether it was an appointed office. He stated that Mr. Hernandez was an officer of the City. Mr. Ashford stated he was appointed. He added that made it an appointed office. He stated that there were two (2) out of the three (3) members that were attorneys. He stated the ordinance specifically stated one (1). He stated that it did not make any provisions for having two (2) or three (3), or four (4), or five (5) attorneys. He stated that it did not. He stated that the Code stated one (1) and that what was what was required. He stated that it had the number one (1) in it and there was no question about that. He added that the makeup of the committee was improper. He stated that there was misinformation provided to the ERC. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 13 of 37 Rebuttal by Mr. Ashford (cont'd) Council Member Hicks requested a clarification of what misinformation was provided to the ERC. Mr. Ashford stated that the committee was told that Mr. Hernandez did not serve on a board. Mr. Ashford then requested assistance from Mr. McBee to provide further explanation. Mr. McBee indicated he would assist. Mr. Ashford stated that there were several things that were said that the City Attorney was incorrect on. He stated that the City Attorney kept going back to the fact that there were three (3) members present and that made a quorum. He stated that in order to have a quorum the City had to have everybody there legitimate. He stated that one of the members was specifically not legitimate. He stated that there were two (2) members there that were attorneys. He stated that the ordinance stated one (1) attorney. Mayor Moncrief clarified with Mr. Ashford what the Ethics Code ordinance stated and he asked if it stated that there would be no more than one (1) attorney. Mr. Ashford stated that the ordinance stated that there shall be one (1) attorney. Mayor Moncrief posed the question to Mr. Ashford that it did not meant that there could not be two (2). Mr. Ashford responded that was right. Mr. Ashford added that if it said there could be one (1) or more, but he stated that it just said one (1), a specific number. He added he did not know the reason that was put in the Code but it was put in there. Mayor Moncrief opened the floor for other questions. Council Member Hicks indicated she had questions about the time line and directed her questions to Mr. Ashford. She requested he share or remind the Council when he showed the video where the Council voted on the appointments and when was the hearing. City Attorney Fullenwider interjected that the preliminary hearing was held on May 20, 2011, and then the final hearing was held on September 24, 2011. Council Member Hicks asked if during that time Reverend Daniels and Ms. Lucas resigned. City Attorney Fullenwider explained that Reverend Daniels did resign and a letter of resignation was received from him. She added that letters of resignation were not received from the other two (2) members, Ms. Luca and Ms. Laguna. City Attorney Fullenwider explained that the City received correspondence from them, but not that they were formally resigning. Mr. Louis McBee interjected that he had the timeline and would be glad to furnish Council Member Hicks with a copy. Council Member Hicks requested clarification about the fact that even though Council Member Burns was not present today, the City Council could still hold the meeting. Council CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 14 of 37 Rebuttal by Mr. Ashford (cont'd) Member Hicks requested to know the quorum requirements for the ERC and whether it was three (3) out of the five (5) members. City Attorney Fullenwider explained that the ordinance required three (3) out of the five (5) members be present, which would constitute a quorum. Mr. Ashford requested to speak again. He stated that he was not on the telephone call so he did not know what was said. Council Member Hicks requested clarification on what telephone call. Mr. Ashford stated the original phone call from Mayor Moncrief to the committee members. Mr. Ashford read the contents of a letter. He stated the letter said: "On Thursday, August 19, 2010, (Mr. Ashford stated this was five (5) days before the Council meeting), Mayor Moncrief called me to inform me that my services on the Ethics Committee were terminated. I accepted my termination as of that date. I will not be in attendance at any additional meetings. He stated this letter was dated September 1, 2010. He added the hearing on his case was heard was several weeks after that and it had been postponed once already. He stated that the City Council saw on the video what the City Council said and what the Mayor assured the City. Mr. Ashford stated that he had every reason to believe that was what was going to happen. He stated that he believed that there had been many times when the intent of the Council was actually more important than what the words were. He stated that he felt the video pretty much showed the intent of the Council and certainly the ERC should have gone back to the Council and said to the Council that they could not do what the City Council said was going to happen. He stated that they did not do that. At this time, Mayor Moncrief recognized City Attorney Fullenwider for clarification. City Attorney Fullenwider referenced the video that was provided by Mr. Ashford and stated that it was the intent of the Council that the two (2) remaining members would continue to serve with the three (3) new members to hear this complaint. She stated that was the reason the City Attorney rendered the opinion that the Mayor did not have the authority to terminate as Ms. Lucas eluded to in her letter her appointment to this ERC. City Attorney Fullenwider pointed out that there was a letter from Ms. Lucas stating that she had been terminated, although that was clearly not the case of what happened at the City Council meeting where the Council appointed three (3) new members to serve with the two (2) remaining members and the Council expected them to show up for the hearing. Mr. Ashford interjected that what City Attorney Yett stated was that the Mayor did not have the authority to fire them. Mr. Ashford referenced the Ethics Code, Section 2.240 Required Function, 2.241(e) ..." in addition to the City Council's usual powers of removal "....Mr. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 15 of 37 Rebuttal by Mr. Ashford (cont'd) Ashford indicated that he did not know what that was. He read the rest of the section "....members of the committee may be removed by a majority of the City Council for a violation of this article." Mr. Ashford stated that what the City Attorney had stated was that the Mayor could not terminate these people, he could not fire them, that only the City Council could do that. He referenced the letter again and stated that was not what that letter stated. He referenced again the portion of the Code that stated the "usual powers of removal." He stated that if he was on a committee and the Mayor called him and stated that he was fired or terminated and that the City did not need him, he stated that would be the end of his service right there. He stated that would certainly be a reasonable understanding and he felt that was what had happened. He reiterated that he was not on the phone call and he does not know what was said. He added that he only had the letter. Council Member Moss requested that the City Attorney review again the clarification of the issue that one person shall hold any elective or appointed office or be a candidate for such office. He stated that the only thing that he was concerned about was that it referenced any city elected or appointed office. He added that was directly to the City of Fort Worth, and if that was correct. City Attorney Fullenwider stated that the distinction that she was making was that a person could be a city officer but not hold an appointed office. She stated that a person could be an officer if they were appointed to a board or commission, but that did not make a person an appointed office, i.e., the City Manager, City Attorney, City Secretary. Mayor Moncrief added where a person had authority. Council Member Moss added as it related directly to the City of Fort Worth. He added that the City Council may appoint someone to another body; however, the language referenced a city elected or appointed office. City Attorney Fullenwider stated that was correct. Mr. Ashford asked if Mr. Hernandez took an oath when he took his position on the airport board. Mayor Moncrief asked who he was directing his question to and Mr. Ashford responded to anyone. There was no response. Council Member Espino stated that he thought he understood what the City Attorney was saying. He stated that anyone that served on a board or commission was an officer of the CityHe clarified that what was being said was that an officer was not the same as an appointed office and this was how he understood the legal argument on that position. Mr. Ashford interjected and asked the Council to tell him where it said that. He indicated that the Council was splitting hairs. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 16 of 37 Rebuttal by Mr. Ashford (cont'd) Council Member Moss stated that airport board was not a city board so it was not the City and added that the language referenced stated pretty clearly that it looked as if it was talking about a City elected or appointed office. Mr. Ashford interjected again that he felt the Council missed what he had talked about earlier. He stated he made a number of references to the City's web site which listed it as a board. He then referenced Section 2 -83 of the Ethics Code which included board provisions for the Dallas /Fort Worth International Airport as a board. He stated it made rules. He stated the City Charter listed it as a City board. He stated in the contract with Fort Worth, it listed the position as a board. He stated it was appointed by the City. He stated there were four (4) places from Fort Worth, seven (7) from Dallas. He stated that it was a City- appointed board and he stated that it was an office. He stated that he had not heard anyone talk about the fact that there were three (3) attorneys on the ERC. He stated that was a clear violation. He stated that three (3) attorneys was certainly not representative of the City of Fort Worth because 60% was not representative of the city. Council Member Hicks posed a question to Mr. Ashford. She stated that Attorney Herrmann stated that Mr. Ashford did not say anything at his hearing regarding the three (3) members that were present. Mr. Ashford indicated that there was a long conversation regarding that issue and it was reflected in the minutes. Mr. Ashford stated that there were five (5) to six (6) pages of minutes at the beginning of the meeting where he and Mr. McBee asked that it be postponed. He reiterated that they walked in the room expecting to see five (5) people and there were not five (5) people as they had been assured. He stated that they asked for it to be postponed. He stated that they did not have very much time to find out that much about the different individuals. He added that they knew that Mr. Hernandez was on the Dallas /Fort Worth International Airport Board. He stated that was an issue in itself. He stated that City Attorney Yett had stated that it was not a City board. Mr. Ashford stated that it was a City board. Mayor Moncrief stated that there appeared to be differences of opinion here. City Attorney Fullenwider clarified to the City Council that at the time she did not recall that Mr. Ashford raised the issue about being more than one (1) attorney either at the hearing or in his appeal. Mr. Ashford's response was that he certainly brought it up today. He stated it did not make any difference -- it was true today and it was true then also. He stated that there was a lot that he did not know then that he knows today. Mr. Ashford again repeated comments that they were not prepared for a situation that was not what they had been told. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 17 of 37 Mayor Moncrief stated that the City Council would now deliberate. City Council Determinations /Decisions (Agenda Item 2 -d) Council Member Hicks posed a question to City Attorney Fullenwider regarding that once a decision had been made by the City Council would it be final or was it appealable. City Attorney Fullenwider stated that the City Council was the final body and she reviewed again the decision options before the City Council as previously presented. Council Member Burdette stated that a lot if interesting arguments had been raised by Mr. Ashford. He added primarily the arguments that the Council was hearing on this appeal in Cause No. 2010 -01 by Mr. Ashford were about the procedures undertaken before the ERC, the make -up of the committee and whether it should have proceeded with the hearing. He stated that he did not know how many of those issues Mr. Ashford raised at the hearing but he had raised them here at this meeting. Council Member Burdette stated that he had difficulty with those arguments. He stated first of all he was at the Council meeting at which the three (3) new members were appointed to the ERC and having been there and seen the video today, it was his understanding then and it was his understanding now that what the Council was doing and what the Council was assuring was that the Council was going to reconstitute the committee, which had dwindled in membership. He added it was necessary to appoint three (3) new members in order to have a full panel of five (5) members. He stated that when he took that action he did not intend it to mean that once a full five (5) member panel was appointed that they would not hear any matters unless all five (5) members sat at whatever subsequent hearings might take place. He added he did not think at that time anyone knew when the hearing was going to take place before the full five (5) member panel or whether all five (5) members would be present. He stated that it was clear from the rules and in the Charter as it is with this City Council, for example, that the City had a nine - member Council and it did not mean that all nine (9) must necessarily be present in order to deliberate. He stated that the requirement was that there be a legal quorum. He stated that in this case three (3) of the five (5) constituted a quorum. He added what he was hearing was that two (2) of the members indicated that they were advised of the hearing and they advised that they would not attend. He stated that he felt a proper quorum was there with the three (3) members. He stated that he did not believe that the City Council intended and he did not believe that the City Council gave assurances that there would never be a hearing of this five (5) member panel unless all members were present at the time. Council Member Burdette stated that he felt that was not a valid argument. Council Member Burdette stated regarding the question of Mr. Hernandez being a member of the panel, he felt the advice from the City Attorney was correct. He stated that no member held any city- elected or appointed office. He stated that he did not feel that Mr. Hernandez held an office with the City. Council Member Burdette stated Mr. Hernandez may sit CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 18 of 37 City Council Determinations /Decisions (cont'd) (Agenda Item 2 -d) on a board and be part of the board but he was not a city officer any more than a member of the Library Advisory Board was an officer of the City simply because they sat on that panel. He added that he did not feel the argument that was made that he was ineligible was correct. He stated that the other argument that was made was that there was more than one (1) attorney on the panel who was licensed to practice in the State of Texas. He stated that the Ethics Code language stated: "one member of the committee shall be an attorney licensed to practice in the State of Texas." He added that he read that as plain English saying that in order for this ERC to operate properly, it needed the advice, experience and education of a licensed attorney. He added that mandate meant that there shall be at least one (1) attorney on there but he did not read it to say that there could not be more than one (1) attorney on that particular panel. Council Member Burdette stated, therefore, he did not think that argument made any sense. He stated that in his opinion there were not any errors as to the procedures that were followed. Council Member Burdette stated that the other argument that Mr. Ashford presented goes to the merits of what were considered by the committee and what he heard him say was their determination as indicated in their written response and ruling that XTO and Chesapeake were "not involved" in the actions taken by the two (2) City Council Members was wrong and was not reasonably and was too narrow an interpretation. He stated that he understood that Mr. Ashford could make that argument; however, he did not think that invalidated the conclusion of the committee. He stated he felt they heard the arguments and heard both sides and he felt that was just a reasonable conclusion as the one that Mr. Ashford was advocating for. Council Member Burdette stated that he felt they found there was no substantial interest in those two corporations held by the Council Members. He stated that he did not view the fact that one or both of those Council Members owned minerals and had leased the minerals to constitute a substantial interest in the lessee, i.e., a substantial interest in XTO or Chesapeake. He added that if he owned a mineral interest and leased it to Chesapeake; he was not acquiring an interest in Chesapeake. He stated he still owned his property and had an interest in that particular piece of property. He stated that he did not feel that constituted a substantial interest in either of those two (2) companies. He stated that he did not believe that action by a Council Member on some matter that came before this Council that affected a general group or a portion of the population on a general basis constituted a violation of any of the ethics rules simply because of the fact that they must act. He added that all City Council Members must act on general matters that come before the Council that could affect people all over the City. He provided as an example of the fact that his mortgage company and he owned his home, a piece of property that he owned in the City of Fort Worth. He stated that as a property owner he was compelled to pay, and he does pay every year, several thousands of dollars of taxes to the City of Fort Worth. He added that he, as well as other Council Members, voted every year on the City's budget. He stated that every time the Council considered the City's budget, they consider the possibility of raising the City's tax rate CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 19 of 37 City Council Determinations /Decisions (cont'd) (Agenda Item 2 -d) or lowering the City's tax rate or leaving it as it. He stated that they do that every year. He stated that he did not believe that anyone claimed or that constituted a conflict of interest or violation of ethics because he also happened to be a tax payer and would be affected by whatever the tax rate was. Council Member Burdette stated that he did not find any error on the part of the ERC and he did not think that they committed any errors in their deliberations. He stated that while people may quarrel with their deliberations and may quarrel with the conclusions that they came to, he did not feel that they were arbitrary or capricious or unreasonable. MOTION: Upon a motion made by Council Member Burdette and seconded by Council Member Moss, the Council voted six (6) "ayes" and zero (0) "nays, with Council Member Burns absent, to deny the appeal in its entirety. The motion carried. Council Member Hicks stated that she agreed with a lot of what Council Member Burdette stated on the first piece about whether the ERC should be meeting. She stated that even in the papers that Mr. Ashford had provided to the City Council there was information where he stated that he had been waiting all of this time, 68 days after the original complaint. She stated that her point was if the idea was to have the ERC meet then she would think that was what the person would want and the person could not then decide, well, the people that I wanted to be there could not be here so; therefore, I do not want them to hear my case. She stated that in any given week it was very true that the City Council did not know who was going to be present on the Council or who was going to hear whatever issues that were being presented. Council Member Hicks stated on the second issue, she served on a number of difference commissions and boards'that interested her, from Presbyterian Night Shelter which was in the Council District that she represented to the Junior League, etc. She stated that all of those agencies certainly formed the opinions that she had. She stated that as she said in August she felt that this process needed to go forward today and there needed to be some resolution for both Mr. Ashford and Mr. McBee and then also the Council Members. She added as she stated in August, she still had a great concern about having to make decisions on fellow council members. She stated that while she had the utmost respect for the folks that she worked with on a daily basis, years from now there could be a Council that had to be in the same position that would not have the same kind of kind of standards. She stated that the City Council had to vote on issues on a weekly basis that deal with each other's Council Districts. She stated she had an earlier conversation with Council Member Zimmerman about how the Texas State Legislature had to go through this and also other entities. She added that she understood from City Attorney Fullenwider that the ERC would be looking at a number of issues, for example, making it more public and just a number of different issues. She stated that she felt it was something that needed to be looked at again because she felt very uncomfortable being in this position where she was CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 20 of 37 City Council Determinations /Decisions (cont'd) (Agenda Item 2 -d) having to decide these issues, not only issues about her colleagues but also the fact that she was not an attorney and she felt uncomfortable about making these decisions. She stated in these three situations she did not feel that there was a conflict with Mr. Jordan or Mr. Scarth and she did feel that the ERC should have met and made their decisions because that was what they were charged to do. She stated that she felt that in the future when they had these situations, for example, she had an ethics complaint filed against her and she would hate to have the City Council in the position to have to deal with that. She added that she felt it put all of the City Council in an unfair predicament. Council Member Hicks advised that she understood that the City Attorney was looking at other cities to see how they deal with this and she requested that they continue to look at this process. She stated that it had been a painful exercise for her personally. She stated that they made difficult decisions all of the time. She stated that she was a "no" vote earlier in the City Council meeting and Council Member Burdette voted against something earlier in the day also. She stated that this just happens and she understood that. She reiterated that when it came to especially someone's character and when the Council heard from three (3) or four (4) attorneys already today, there were some concerns that she had. She asked the City Attorney to look at what other cities are doing. Mayor Moncrief indicated that he had the same conversation with the City Attorney. He added that one of the things that he was informed of was that most of the cities, especially in the larger cities in the State of Texas, have more involvement than the City of Fort Worth currently does. He stated that their City Councils had more involvement and their ethics panels were basically advisory panels that advised the Council and then the Council had the sole responsibility. He added that he felt the City needed to look at that very closely and to look closely at the issue of once the Council gave that authority up, it was gone. He stated that there were pluses and minuses. He stated that if the City did the same thing that the state was doing, was that sufficient and would it get the City where it needed to be. He added particularly with some of the items that the City was going to have to address as one of the fastest major growing cities. Council Member Hicks stated that she had no idea that there had been members on the ERC for 20 years. She stated that was a huge issue on the Council's part. Council Member Hicks talked about the City's boards and commissions and that the Council was more engaged in certain boards or committees than others, for example the Zoning Commission where the six - year term rule was invoked. She stated that the Council needed to be more engaged when it came to the issue of ethics and she stated that perhaps the answer was for each City Council Member to have an appointee on this committee. She added that she did not know what the answer was; but she asked that moving forward that a City Council workshop session be scheduled in order to see what other cities in the State of Texas have done. She also referenced CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 21 of 37 City Council Determinations /Decisions (cont'd) (Agenda Item 2 -d) Mayor Moncrief s expertise on this ethics issue at the state legislative level. She reiterated that she did not know what the answer was at this time; however, it was something that needed to be looked at. She also requested that the new City Attorney Fullenwider deal with all of these issues and perhaps the answer was that the City Council needed to be a lot more engaged in these issues and she added that perhaps the City would be facing more of these in the future. She stated that she wanted to see everything laid out on the table and see all of the proposals and see what was going to work so that everyone felt like they had a place at the table, including the citizens. Mayor Moncrief stated that when the Council was trying to recruit citizens to serve on this panel, folks did not line up. He stated that it was difficult to get the right people to agree to be willing to go the extra mile. He stated that the members have worked hard, those in the past as well as the new members. Mayor Moncrief continued the agenda to the next case. City Council Hearing on Appeal of Findings by the City's Ethics Review Committee in Cause No. 2010 -03, a Complaint Filed Against Council Member Danny Scarth by Fort Worth Resident Louis A. McBee (Agenda Item 3) Overview of Previous Hearings /Findings — City Attorney (Agenda Item 3 -a) City Attorney Fullenwider spoke before the Council on Case No. 2010 -03. She advised that the complaint was filed by Fort Worth resident Louis McBee on July 15, 2010. She stated that the complaint alleged that Council Member Danny Scarth had a substantial interest in a gas lease on his residential property with Chesapeake with a royalty interest exceeding $2,500 and thus should have disclosed that fact and not have participated in the following matter: A vote on M & C G -16921 on June 22, 2010, which involved a high impact gas drilling waiver sought by Chesapeake Operating, Inc. She added that the complaint alleged that the action violated Sections 2 -237 and 2 -239 of the Code of Ethics. City Attorney Fullenwider provided a timeline of the hearings on this case as follows: CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 22 of 37 Overview of Previous Hearings /Findings — City Attorney (cont'd) (Agenda Item 3 -a) September 24, 2010: Ethics Review Committee (ERC) continued the case in order to receive a report from an appraisal expert regarding the value of the royalty interest. December 8, 2010: ERC Hearing a quorum of three (3) members were present (Hortenica Laguna and Rebecca Lucas were not present). ERC heard evidence and considered arguments of the complainant and respondents. City Attorney Fullenwider presented the ERC Findings as follows: ■ None of the actions cited by the complainant violated the "substantial interest" provisions of the Code because no evidence was presented at the hearing that Council Member Scarth owned any interest in any of the wells subject to the high impact waiver sought by Chesapeake in M & C G16291; and ■ Council Member Scarth's royalty interest did not exceed $2,500 in value on June 22, 2010 and that values attributable to royalty interest of persons related to Scarth in the first degree of affinity are not added to or cumulated with Scarth's royalty interest. City Attorney Fullenwider reviewed the appeal filed by Louis McBee on December 17, 2010 in which he alleged that the ERC committee error and demonstrated prejudice by: 1. Misconstruing the provisions of the Ethics Code as it relates to substantial interest in business property and /or real property; 2. Being arbitrary and capricious in its deliberations by ignoring provisions of Chapter 171 of the Texas Local Government Code and numerous Attorney General Opinions that he submitted into evidence; 3. Participating in ex -parte communications regarding the charges filed, in violation of Section 2.250 of the Code of Ethics; 4. Demonstrating prejudicial behavior in ignoring the City Council's directives to require the participation of Ms. Rebecca Lucas and Ms. Hortencia Laguna. City Attorney Fullenwider explained that the City Council options in the hearing where to determine whether: CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 23 of 37 Overview of Previous Hearings /Findings City Attorney (cont'd) (Agenda Item 3 -a) 1. The ERC was prejudiced in its deliberations; 2. New evidence is available that was not considered by the ERC; or 3. The ERC committed some error in its deliberations. City Attorney Fullenwider explained that if the Council determined the answer was "no ", then they should deny the appeal in its entirety. She added that if they determined the answer was "yes ", then they should hold an evidentiary hearing, either by the City Council or a hearing officer. Argument by Complainant — Louis McBee (Agenda Item 3 -b) Mr. Louis McBee, P. O. Box 24247, Fort Worth, Texas 76124 -1247 and 2320 Oakland Boulevard, Suite 11, Fort Worth, Texas 76103, spoke before the City Council regarding his appeal. He expressed appreciation to Council Member Hicks for her comments. He stated that there were a couple points of interest. He stated that first of all on the issue of whether the airport board was an appointed commission or not, he directed the Council that they would also have to look at the Zoning Commission, the Planning Commission and the Board of Adjustments and ask themselves whether those were appointed offices and whether they took the oath -of- office for this City. He stated that if they looked into that the answer would be "absolutely." He stated that they were bound by that oath and they could be discharged for violating it. Mr. McBee stated that indifference to comments made by City Attorney Fullenwider, he advised that the City Council was not the final step in these hearings. He stated that Chapter 171 of the Texas Local Government Code made violations a criminal offense and so the next step would be to pursue a criminal case. He stated that all of their complaints were based upon one simple fact. Council Member Hicks interjected with a question of how these cases were criminal. City Attorney Fullenwider stated that Mr. McBee was referring to the State's Ethics Code and this does would not apply to the City's Ethics Code. She reiterated that the City Council was the final determining body for the City's Ethics Code Ordinance. Mr. McBee interjected that there was the issue that could easily be state charges for violation of Chapter 171 because Chapter 171 actually was written for municipal bodies. He added that it was not for state -wide bodies, which was found in a different section of the Code. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 24 of 37 Argument by Complainant — Louis McBee (cont'd) (Agenda Item 3 -b) Mr. McBee indicated that he had passed out some additional information to the City Council when Mr. Ashford was speaking. He stated that he felt those issues were important and he advised that he probably should have gotten up and spoken when Mr. Ashford was speaking. He stated that if the Council did not get past this definition of what "is" then there was no point to go to the next case that they need to be talking about because he already knew what the City Council's decision was going to be regardless of the information that he presented. Mr. McBee stated that first of all he provided copies of the letters from Ms. Laguna and Ms. Lucas and when they were presented, when they were faxed and when they were dated. He stated that they also had in front of them a timeline of those events. He stated that on July 16, 2010, he filed his original complaint. He stated that on August 5, 2011, the old ERC met to determine a hearing date, the validity of the charges and to select an attorney for the ERC. He stated that on August 19, 2011, the Mayor called the two (2) existing members of the ERC and told them they no longer had a job. He stated that he had no reason to believe that those two (2) ladies would write a letter to the City of Fort Worth lying about what they were told. On August 23, 2010, Mr. McBee stated that Reverend Daniels did not call the City. He stated that the City called Reverend Daniels. He stated that there is a letter on file that would indicate that on August 23, 2010, and supposedly he resigned as a result of that telephone call. Mr. McBee stated that the City wrote a letter to him thanking him for his time and his conversation of that day and he was no longer on the ERC. Mr. McBee stated that on the very next day the City Council considered and reviewed the changes in the Ethics Ordinance which was less than 24 hours after they knew that Reverend Daniels was not going to be on the ERC. He stated that in his view it made the entire agenda in violations of the Open Meetings Act because it could not have been posted 36 hours or whatever prior. Mr. McBee stated that on August 24, 2010, the City Council adopted the changes to the Ethics Ordinance and then on September 7, 2010, Ms. Lucas and Ms. Laguna faxed again the information to the City telling the City that as far as they were concerned that they were no longer on this ERC regardless of what the City Council or City staff thought they were. He stated that his reason for that was that the Council had plenty of time to act on this and make the committee right prior to these hearings. He stated that he did file with the ERC the three (3) members and the City Secretary his objections to that meeting as being illegal and completely out of order. He stated that it was also in writing with the City. Mr. McBee stated that his original hearing on his original complaint was held 70 days after he filed it. He repeated the number again. He stated that the reason that was important and he added that quite frankly he did not appreciate splitting hairs on part of the ordinance and then literally defining other parts of it because it was convenient to the City or convenient to the people who were a part of this process. He stated that when no preliminary hearing was required, the final hearing should have been held as expeditiously as possible following the tiling CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 25 of 37 Argument by Complainant — Louis McBee (cont'd) (Agenda Item 3 -b) of the complaint but in no event should it have been held more than 30 days after the filing of the complaint. He stated that the entire hearing was out of order. He added that City staff should have come back to them and asked them what they wanted to do. He stated once again he was not going to sit up there and waste his breath when he thought he already knew what the Council was going to do. He stated that he would promise the Council that he was not dropping it and by this time this coming Friday, there would be complaints 2011 -01, 2011 -02, 2011 -03 and 2011- 04. He told the Council to be ready. Mr. McBee completed his comments. Argument by Person Complained Against — Attorney Don Herrmann Representing Council Members Scarth and Jordan (Agenda Item 3 -c) Mayor Moncrief recognized Don Herrmann, the attorney representing Council Members Scarth and Jordan. Mr. Don Herrmann, attorney with Kelly Hart & Hallman LLP, spoke before the Council and indicated that he did not intend to address the complainant's comments on either the make- up of the ERC or the timing of the hearing. He stated that this appeared to be more in the arena of the City Attorney and perhaps Mr. Daniel as the ERC's counsel. Mr. Herrmann stated that Mr. McBee choose not to tell the Council what his real complaint was about; however, he wanted to do so because in doing so it would help everyone understand how Mr. McBee misperceived the interpretation of the Ethics Code and why that misperception lead him to the wrong conclusions in so many of these matters. Mr. Herrmann stated that when Mr. McBee filed his complaint in this incident which complained about Council Member's Scarth vote on an M & C that had to do with a variance from distance standards on a particular gas well pad site for Chesapeake; that Mr. McBee did not really tell anyone what the basis for his complaint was as it related to the disqualifying circumstance that he was going to rely on. Mr. Hemnann stated that it became obvious later that he was complaining that Council Member Scarth had an oil and gas lease on his residence in east Fort Worth and Mr. McBee contended that the oil and gas lease created a disqualifying circumstance. Mr. Herrmann stated that Mr. McBee still did not tell anyone whether it was disqualifying because it was an interest in a business entity or whether it was disqualifying because it was an interest in real estate. He stated that he did not believe that Mr. McBee understood the distinction between the two. Mr. Herrmann stated that in Section 2 -239 and its interplay with Section 2 -237, there could be a disqualification if the person owned an interest in a business entity if that ownership interest was CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 26 of 37 Argument by Person Complained Against — Attorney Don Herrmann Representing Council Members Scarth and Jordan (cont'd ) (Agenda Item 3 -c) 10% of the business or has a value greater than $5,000.00, or if that business interest generated income that was greater than 10% of the Council Member's income for the previous year. He added that he agreed with Council Member Burdette that the lease of minerals under real property that was owned frankly was not an interest in a business entity. Mr. Herrmann stated there was with respect to real estate a different test. He stated the test was that there was a disqualifying circumstance if the value of the real estate interest exceeds $2,500.00 and the real estate interest was directly involved in the action being considered by the City Council. Mr. Herrmann stated that in this instance, the ERC commissioned an independent appraisal of Mr. Scarth's residential oil and gas lease and the appraiser concluded that the lease had a value of $1,500.00 or less and therefore did not reach the $2,500.00 requirement that was necessary to be a disqualifying event. He stated that furthermore, it was clear that Mr. Scarth's residence and the operations that were pertinent to it were not impacted by the M & C in question. He stated there was no direct economic or unique economic impact on that real property. He stated that so under Section 2.239, Mr. McBee's complaint failed in both analyses but particularly the most pertinent one which had to do with the real estate interest. He stated as the City Attorney observed, Mr. McBee had complained about some ex parte communications and he added that he did not know anything about that and he had apparently chosen not to address that issue with the City Council. Mr. Herrmann concluded his remarks. Mayor Moncrief opened the floor for questions. City Council Determinations /Decisions (Agenda Item 3 -d) City Attorney Fullenwider stated like in the previous case, Council Member Scarth relied on the advice of the City Attorney David Yett when he proceeded to vote on this case. She added what she failed to point out in the other case was that under Section 2 -256 (a) what was appealed to the City Council was whether the ERC's determination whether or not a violation of Division 1 had occurred. She stated that the makeup of the committee and whether or not there should have been five (5) full members there was not a violation of Division 1. She added that she wanted to clarify that for the City Council. She added the City Council had taken great latitude to hear those arguments from both Mr. Ashford and Mr. McBee; however, it was not a violation of Division 1 and was really not an appealable matter before the City Council. Council Member Hicks requested clarification from the City Attorney regarding conversations with Ms. Lucas and Ms. Laguna. She pointed out that they were stating that they CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 27 of 37 City Council Determinations /Decisions (Agenda Item 3 -d) were removed from this board; however, she wondered if City Attorney David Yett had called them and told them this was not true. City Attorney Fullenwider stated that she could not speak to the conversations that he had with them. She indicated that she did know that they were told by Mr. Yett that the Mayor did not have the authority to remove them from the board and it was clear from the City Council's action on that City Council date that they had intended them to be part of the committee to hear the remaining hearings. Council Member Hicks interjected that was because the Council Members only appointed three (3) members to the ERC. Council Member Zimmerman stated that in hearing both sides of this case, it was clear to him that it had not been proved that a substantial amount of income came from any of the actions that were taken. He stated that it was pointed out also, however not relevant in his opinion, that there were only three (3) members of the board on that day. He stated that it was the intent of the City Council to have five (5) members there, but it was not an assurance. He stated that the City Council wanted those other two (2) there especially because they had been a party to the hearings before so the City Council wanted that continuity brought forward. He stated they elected not to do that and the City Council had no control over that. He stated, therefore, based upon those reasons, he would moved to deny the appeal in its entirety. MOTION: A motion was made by Council Member Zimmerman and seconded by Council Member Burdette, to deny the appeal in its entirety. Council Member Burdette stated the whole basis of the ethics code was to address situations where in this case a Council Member might be considering a matter and voting on a matter and may had motivations that were reasonably deemed to be contrary to the motivations which would guide his or her vote as a member of the City Council and representing the voters of the City. He felt this was basically what the whole focus was about and what everyone should be concerned about was what might be motivating someone to take action. He stated that he did not think in this case Mr. Scarth's vote on a high impact well site regarding Chesapeake would or was motivated by any interest that he may have in the minerals that he had under his home. He stated as already pointed out by Mr. Herrmann and he agreed, he did not think that interest in that real estate reached the level of exceeding $2,500.00. He added certainly the minerals on his home or properties and the wells from which those royalties might flow were not effected by or involved in the vote that Mr. Scarth took on that particular Chesapeake case at that time. Council Member Burdette stated he felt it was clear as he had stated earlier today that simply owning minerals and leasing to a gas company who in affect had been hired by a person as the lessor to use their experience and their money to produce a person's minerals. He stated that he did not feel that it constituted a substantial interest in that company. He stated in this case it CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 28 of 37 City Council Determinations /Decisions (Agenda Item 3 -d) would be a substantial interest in Chesapeake as a corporate entity. He stated he did not think the vote in G -16921 by Mr. Scarth rose to a violation under the City's Code. Council Member Burdette indicated that when the City Council talked about motivations he was a little bit concerned that this case had not been raised, but he was going to raise it. He stated that he was a little bit concerned about the complainant's motivation in this case because as he recalled this particular complainant had filed for office and ran against Mr. Scarth in seeking a seat on this Council at lease once and maybe more than once. He stated that he had some concerns here about the motivation for the bringing of this case. He stated that he had not heard from either complainant today any suggestions about where or how this should go further in the event that an ethics violation were to be found these cases. He stated that he did not know whether the motivation in bringing these complaints was to seek such a finding and then allege or urge that the Council Member should be removed from the Council or the Council Member should be fired or the Council Member should serve time in jail. He added he was just not quite clear what the motivation was here but he certainly did question it in this case. He stated with that said, he would second the motion. With no further discussion, Mayor Moncrief called for the question. VOTE ON THE MOTION: The Council voted six (6) "ayes" and zero (0) "nays ", with Council Member Burns absent, in favor of the motion. The motion carried. Mayor Moncrief moved to the next agenda item. City Council Hearing on Appeal of Findings by the City's Ethics Review Committee in Cause No. 2010 -04, a Complaint Filed Against Council Members Jungus Jordan and Danny Scarth by Fort Worth Resident Louis A. McBee (Agenda Item 4) Overview of Previous Hearings /Findings — City Attorney (Agenda Item 4 -a) City Attorney Fullenwider advised the complaint had been filed by Mr. Louis McBee on September 23, 2010. She explained that the complaint alleged that Council Member Jungus Jordan and Council Member Danny Scarth had a substantial interest in Chesapeake and XTO, CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 29 of 37 Overview of Previous Hearings /Findings — City Attorney (cont'd) (Agenda Item 4 -a) respectively, and thus should have disclosed that fact and not have participated in the following matters: The August 19, 2010, appeal to the City Council to reverse the June 24, 2010 decision of the ERC finding that three (3) members of the Air Quality Study Committee violated the Code of Ethics by their service on the committee. City Attorney Fullenwider advised that Council Members Jordan and Scarth relived on the advice of the City Attorney David Yett and participated in that vote. City Attorney Fullenwider advised of the timeline for the hearing as follows: December 8, 2010: Ethics Review Committee (ERC) hearing was held. She stated a quorum of five (5) members were present (new appointed members). The ERC heard evidence and considered arguments of the complainant and respondents. Ms. Fullenwider advised of the ERC findings as follows: None of the actions cited by the complainant violated the Code of Ethics because no evidence was presented at the hearing to establish that there was a connection between the votes by Council Members Jordan and Scarth on August 19 2010, reversing an ERC decision and Council Members Jordan's and Scarth's respective interest in Chesapeake and XTO. City Attorney Fullenwider explained that Mr. McBee filed an appeal on December 17, 2010, which alleged that the ERC committed error and demonstrated prejudice by: • Misconstruing the provisions of the Ethics Code as it relates to substantial interest in business property and /or real property; • Was arbitrary and capricious in its deliberations by ignoring provisions of Chapter 171 of the Texas Local Government Code and numerous Attorney General Opinions that he had submitted into evidence at the hearing. • Participated in ex -parte communications regarding the charges filed, in violation of Section 2 -250 of the Code of Ethics. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 30 of 37 Overview of Previous Hearings /Findings — City Attorney (cont'd) (Agenda Item 4 -a) City Attorney Fullenwider advised that the City Council options would be to determine whether: 1. The ERC was prejudiced in its deliberations; 2. New evidence was available that was not considered by the ERC; or 3. The ERC committed some error in its deliberations. City Attorney Fullenwider advised that if the Council determined "no ", then they should deny the appeal in its entirety. She added that if they determined "yes ", then they should hold an evidentiary hearing, either by the City Council or a hearing officer. Argument by Complainant — Mr. Louis McBee (Agenda Item 4 -b) Mayor Moncrief recognized Mr. Louis McBee, P. O. Box 24247, Fort Worth, Texas 76124 -1247, to speak at this time. Mr. McBee stated that better than address this case specifically, he stated that he wanted to state briefly that it was fairly apparent that he and Mr. Ashford were not going to get a fair hearing not in this city anyway. He stated that the City Council could not even follow their own process because they were supposed to be discussing whether or not the process was followed properly. He stated he had already pointed out to the Council that the meeting was held 70 days after notice. He stated that the City's ordinance stated 30 days. He stated that the Council had not even addressed that issue and now there were Council Members who were not only addressing his motives, they are addressing the guilt or innocence of the parties charged without an evidentiary hearing. Mr. McBee stated that was all he had to say about it and he added that he was quite frankly embarrassed. This concluded Mr. McBee's comments. Argument by Persons Complained Against - Attorney Don Herrmann Representing Council Members Scarth and Jordan (Agenda Item 4 -c) Mayor Moncrief recognized Mr. Don Herrmann, attorney with the Law Firm of Kelly Hart & Hallman LLP, representing Council Members Scarth and Jordan. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 31 of 37 Argument by Persons Complained Against - Attorney Don Herrmann Representing Council Members Searth and Jordan (Agenda Item 4 -c) Mr. Herrmann stated that just as the ERC had concluded that XTO and Chesapeake were not directly involved in the selection of the members of the Air Quality Study Committee, it concluded in this instance that XTO and Chesapeake were not directly involved in the appeal of the earlier challenge to the selection of those people. He stated it was the same logic, same result, perfectly consistent and absolutely correct. Attorney Herrmann completed his comments (Mr. McBee left the meeting at 3:35 p.m.) City Council Determinations /Decisions (Agenda Item 4 -d) Council Member Zimmerman directed a question to Mr. McBee. Mayor Moncrief advised that Mr. McBee had left the meeting. Mr. Zimmerman stated that he had no questions. Council Member Espino stated that just so the record is clear, he wanted to make a couple of comments. He stated that too often in public debate and discourse in government and public service because folks disagree with folks on decisions that they make, negative conservations, negative comments are described to folks. He added everyone that served in elective office does it in the best interest, he believed, of the folks that they were representing. He stated that in any political process people were not going to agree with City Council in decisions that they make. He pointed out that the City Council dealt with a lot of tough issues. He stated that he was concerned and he directed the comments to City Attorney Fullenwider and stated that when the City looked at the ethics review of the re- litigation and similar issues. He stated that in the law there was res judicata, collateral estoppel and criminal law double jeopardy. He hoped as the City went forward the City had a process for that. He stated certainly the constitution required due process, which meant notice and an opportunity to be heard. He stated thorough out the entire difficult issue of developing the policy for urban gas drilling, there have been countless public hearings and public meetings, citizen's input and obviously it was a very tough issue. He stated the question was how does the City determine good public policy for a Barnett Shale gas plate that had so many different interests involved. He stated from the neighborhood residents that may not want the gas well near them to the royalty interest owners that want their royalties to the City officials and Council Members trying to come up with an ordinance that best balances all of those competing interests. He stated that it was most unfortunate that on these tough issues that some times these issues become personal. He stated that these hearings were difficult for all of the Council because ethics complaints remained CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 32 of 37 City Council Determinations /Decisions (cont'd) (Agenda Item 4 -d) against fellow colleagues that the Council Members worked with and that the Council tried, he believes, in good faith to give a good and fair hearing to everyone. He added that when there was a different interpretation, when someone disagreed with findings of fact by an ERC and disagreed with a decision of this Council as the appeal entity and subscribed a personal motivate, he found that quite disturbing. MOTION: A motion was made by Council Member Espino and seconded by Council Member Zimmerman, to deny the appeal in its entirety. Mayor Moncrief stated that he felt Council Member Espino's comments expressed a lot of how the rest of the City Council Members felt. He stated that it was a tough place to find as City Council Member, but he pointed out that the Council Members wanted this job and it was a part of the job and it was up to the Council to listen to the attorneys, up to them to listen to the citizens and decide what they think was right and what they thought was not right. He added that it was unfortunate that this had become so personal and so divisive. He stated at the same time, he thought that the City had citizens like the current panel and like those that have served in the past who were willing to step in and serve as referees and to take the law literally and what that law said and give the Council their advise, their counsel. He stated that until that process changed, he felt it was up to the Council to listen and he, like all of the Council, wanted them to be able to move in a responsible and positive manner through this urban drilling challenge the City had. He stated that as everyone knew it was not going to get any easier than it was today, it just won't. Mayor Moncrief thanked each of the Council Members and indicated he knew it was difficult. He added as Council Member Hicks had stated earlier, it was tough to sit here and rule as a body on those you serve with and it was tough to try and make citizens who complained understand that what the City Council was doing was the best job that they knew how. Council Member Zimmerman stated that he felt it was very important to emphasize here too when all of these cases came before the Council, they sought the advise of the City Attorney and acted on that advise. He stated that he did not know what else the Council could do but to take as gospel what the City Attorney was telling them. He stated that he understood the concerns that the plaintiffs had in this process and yet the Council kept hearing people wanting to gloss over the fact that the Council did their very best efforts with their very best intentions with the guidance that the City Council had. He stated that in the case of this complaint what he was going to ask Mr. McBee was at what point before today had Mr. McBee brought up the 70 -day concern with the Council acting on his appeal. Council Member Zimmerman pointed out that the three (3) members from the industry that were on the Air Quality Study Committee were CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 33 of 37 City Council Determinations /Decisions (cont'd) (Agenda Item 4 -d) again approved by the City Attorney. He added, however, before the committee got to the vote, those three (3) people recused themselves from the vote, so they really had no say in how that vote came out. He stated the real key was the tools that the City Council had were the ones that they have got to act with. Council Member Zimmerman stated he felt that the Council all agreed that the ordinance for the ethics needed to be revised and relooked at very closely. He stated that it should be a tool to ensure that the City Council all act in good jurisprudence and that was the only tool that it should do. At this time, Council Member Scarth requested to speak before the City Council in his position of a person being complained against. Council Member Scarth stated he wanted to speak up on behalf of the process. He stated that he felt that the City had some very serious issues with the way the ordinance existed today and how it was carried out. He stated at the same time it was the ordinance that the City had today. He added it was the process that the City had today and he thought that all of the members, the original three (3) that they started with and certainly the five (5) members that the City had today have all attempted to do their job the very best they could within the way the system worked. He did think that unfortunately that some folks have tried to use the ethics process as an appeal process for decisions of the City Council not necessarily on decisions of ethics or judgment of ethics. He stated in the last case where he was the subject, it was very obvious when he discussed it with the City Attorney that the property that he owned was not even in the well site or within the well site or any of the leases that the Council was voting on. He pointed out that alone meant there was no problem with him voting on that issue. He spoke about obtaining information by an independent appraiser on the value of his mineral rights to make sure the real estate did not exceed more than $2,500.00 even if it had been in the area and the result was that it did not so it obviously failed on both of those counts. Council Member Scarth stated obviously the complainants' argument focused on the process itself where the members were supposed to be five (5) instead of three (3) even though the ordinance allowed for a quorum to be three. He spoke about the issues raised on the time line and the added confusion with the complainants trying to complicate the issue and it made it look as if the City Council as the appeal body was doing something wrong rather than focusing on the very simple facts of the case which was did he do something that was ethical or unethical and obviously he relied on the opinion and advise of the City Attorney and followed the law in a very simple manner. He stated that what he did not want to happen was the process of reviewing the ethics ordinance by the City Council to be considered irrelevant or strictly political or become less than it was because it had been misused by some other people. He stated in other words at some point in the future the City Council might have some serious ethical issues that they have CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 34 of 37 City Council Determinations /Decisions (cont -d) (Agenda Item 4 -d) to deal with on the City Council. He stated some one or some future Council Member or somebody could actually do something that was truly unethical in an attempt to make themselves more wealthy or to help some friend or do something that was truly wrong and the Council might have people say that it was just a political process, just somebody just trying to one up somebody else because today and through the last several months this process had been abused and misused by unfortunately some Fort Worth citizens because they were unhappy with policies and decisions made by the City Council. He stated his appeal to all of the Council was to not let what they have been going through for the last number months with this whole process let the City Council believe that ethics were not important. He added that they were and the daily examination of every vote that the City Council made and every decision that the City Council made as City Council Members had to be made looking in the mirror with full light and saying were we doing the right thing and we have to continue to rely on the good advice from the City Attorney. He stated that they needed to continue to rely on their good ethics and their moral values to make good decisions no matter how the process was misused or abused by others in an attempt to make a political point or appeals from the decision policies that have been made. He stated that he appreciated the City Council Members taking this very seriously and trying to make the very best decision that they could in this situation. Mr. Ashford interrupted and requested to speak again before the City Council. Mayor Moncrief indicated that Council Member Scarth spoke because he was the subject of the complaint. Mayor Moncrief explained to him that this was not his case and he was not the complainant in the case being heard. After further discussion, Mayor Moncrief recognized Mr. Ashford to speak. He stated that he had heard several people on the City Council talk about the abuse and it made him sound like he was the bad guy and Mr. McBee was the bad guy. He stated that the true was he did not know whether the City Council really did not know the law or that they just wanted to play ignorant. Mayor Moncrief interjected that comment was enough. He stated that if Mr. Ashford was to stick to the item that was before the Council that was fine. Mr. Ashford stated that he did not know. He read to the Council the state local code and stated that it was cumulative with the City's Code. He stated that what the state said trumped anything that the City says. He read Section 171.004 of the Texas Local Government Code, as follows: CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 35 of 37 City Council Determinations /Decisions (cont'd) (Agenda Item 4 -d) "Affidavit and Abstention from Voting Required. (a) If a local public official has a substantial interest in a business entity or in real property, the official shall file, before a vote or decision on any matter involving the business entity or the real property, an affidavit stating the nature and extent of the interest and shall abstain from further participation in the matter if. (1) in the case of a substantial interest in a business entity the action on the matter will have a special economic effect on the business entity that is distinguishable from the effect on the public; or......." Mr. Ashford stated that if he had been allowed to proceed with his case, there was a situation that was heard, with an Attorney General's opinion on it, which had to do with a City Council person in Dallas regarding Love Field, the Wright Amendment. He stated that what the opinion talked about was did it have an affect on the company that the Council person's husband worked for. He stated that the husband worked for American Airlines. He added that the question was could she vote on anything involving Love Field. He stated that the thing that she had to decide and it was stated in the Attorney General's opinion was that she had to decide that if it had a financial affect on American Airlines in her opinion, then she must abstain. He added that there was no question about that. He stated that the Attorney General's opinion goes into "directly" or "indirectly." Mr. Ashford stated that whether or not it had a financial affect on American Airlines, he did not know. Mr. Ashford stated that when the City Council voted on a gas drilling ordinance did it have a financial effect on the drilling companies. He added that he did not feel that there was any question about that. He stated that it was required that the individuals that have a substantial interest not vote. Mr. Ashford spoke about comments made by Council Member Burdette wherein he stated he did not see how the substantial interest applied. Mr. Ashford stated the state put the limit on that, 10% of a person's income if it over a certain amount. He stated that there were stipulations and he added that it was not a matter of judgment. He stated that it was stated in the state laws. He pointed out that the City Council had not read the state laws. Mayor Moncrief responded that the City Council had taken advice from the City Attorney. He stated that this was what the Council had done and would continue to do. Mayor Moncrief pointed out that there have been more affidavits filed with this Council than any Council in the state. Mr. Ashford stated that the Attorney General's opinion was the same as law unless it is over turned by a legal court. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 36 of 37 City Council Determinations /Decisions (cont'd) (Agenda Item 4 -d) Mayor Moncrief asked Mr. Ashford if he was an attorney. Mr. Ashford responded that he was not but he could certainly read the laws. He could read what the Attorney General's opinions said. He stated that he could read what the county manual said. Mayor Moncrief asked Mr. Ashford if he had completed his comments. Mr. Ashford indicated that he had completed his comments. Mayor Moncrief pointed out that there was a motion, with a second, before the Council Members. Council Member Espino stated that Council Member Hicks had raised some very good points earlier regarding the City's ordinance and he expressed his appreciation to her. He added that it was a tough day for everyone but he did want to thanks Ms. Hick. Council Member Hicks responded that she appreciated his comments. She added that she debated whether she could stay in this process because of her concerns and frankly it was her conversation with Mr. Zimmerman and Ms. Fullenwider. She added just because she had those concerns did not mean she had some kind of fear about testifying or voting or whatever. She pointed out everyone had different issues and disagreed about different issues. She stated that the Council made difficult votes on a weekly basis. She stated that it disturbed her that some how there was the impression that she was not stepping up to the plate. She stated that there were other issues here that frankly have really bothered her. She stated that Council Member Scarth talked about the fact that he felt that he had been abused. She stated that she too felt that way right now. She stated that just because she asked these questions, that she was just the same as any one else up here and she had the right to ask those questions. She pointed out that City Attorney Fullenwider stated that the Code stated that she had to vote on these issues, so she was accepting that. She stated that she had other attorneys tell her that she did not have to. Council Member Hicks added that to question her character was deeply upsetting to her and she thought after five (5) plus years of being here she had proven that she was willing to take tough votes. Council Member Hicks stated she was deeply concerned about how this had gone down and she did not appreciate some of the things that were stated about her earlier today and she felt they were deeply unfair. She stated that Council Member Burdette voted against something earlier today in the district that she represented and she did not hold that against him. She added that it was his right to do. She stated that she voted against something earlier on ERP and that was her right to do. Council Member Hicks stated if she raised concerns about the process, that was her right to do. She stated that it was deeply concerning that there were folks that would come and question her integrity and that was the way she felt today. CITY COUNCIL CITY OF FORT WORTH, TEXAS CALLED — SPECIAL MEETING FEBRUARY 15, 2011 Page 37 of 37 City Council Determinations /Decisions (cont'd) (Agenda Item 4 -d) Mayor Moncrief announced again that there was a motion, with a second, before the Council to deny the appeal in its entirety. VOTE ON THE MOTION: The Council voted six (6) "ayes" and zero (0) "nays ", with Council Member Burns absent, in favor of the motion. The motion carried. Executive Session (Agenda Item 5) Mayor Moncrief advised that the Executive Session on the following item would not be necessary: To seek the advice of its attorney, if necessary, concerning the subject Ethics Complaints; such matters are exempt from public disclosure under Article X, Section 9 of the Texas State Bar Rules, and in accordance with Texas Government Code, subchapter D, Section 551.071 (LEGAL). This agenda item was passed over. Adjournment 2011. (Agenda Item 6) Mayor Moncrief adjourned the meeting at 3:35 p.m. on Tuesday, February 15, 2011. These minutes approved by the Fort Worth City Council on this the 5th day of April, ATTEST: M��J�kA �� Marty Hendrix, C /MCC City Secretary APPROVFD-