HomeMy WebLinkAboutOrdinance 20548-12-2012ORDINANCE NO. 20548-12-2012
AN ORDINANCE AMENDING CHAPTER 2 (ADMINISTRATION),
ARTICLE VII (CODE OF ETHICS) OF THE CODE OF THE CITY OF
FORT WORTH, TEXAS (1986), AS AMENDED, BY SPECIFYING THAT
THE DECLARATION OF POLICY IS NOT PART OF THE ETHICS
CODE; ADDING DEFINED TERMS FOR "DOMESTIC PARTNER ",
"RESIDENT ", "TASK FORCE ", AND "WRITTEN OPINION OF THE
CITY ATTORNEY "; REVISING THE DEFINITION OF "SUBSTANTIAL
INTEREST "; PROVIDING THAT A TASK FORCE MEMBER MAY
PARTICIPATE AND VOTE ON MATTERS; PROVIDING THAT
RELIANCE UPON A WRITTEN OPINION OF THE CITY ATTORNEY IS
AN ABSOLUTE DEFENSE TO AN ALLEGED VIOLATION; RENAMING
THE ETHICS REVIEW COMMITTEE AS THE "ETHICS REVIEW
COMMISSION"; SPECIFYING THE MEMBERSHIP, JURISDICTION,
POWERS AND MEETING REQUIREMENTS OF THE ETHICS REVIEW
COMMISSION; SPECIFYING THE DUTIES AND RESPONSIBILITIES
OF THE CITY ATTORNEY AND THE CITY SECRETARY; PROVIDING
FOR THE APPOINTMENT, JURISDICTION, POWERS AND PROCESS
OF HEARING OFFICERS TO HEAR APPEALS; SPECIFYING THE
CRITERIA OF A VALID ETHICS CODE COMPLAINT; SPECIFYING
THE PROCESS BY WHICH A COMPLAINT IS HEARD AND DISPOSED
OF; PROVIDING FOR THE RETENTION OF OUTSIDE LEGAL
COUNSEL; SPECIFYING THE CRITERIA FOR AN APPEAL;
SPECIFYING THE POWERS OF THE CITY COUNCIL TO MAKE
FINAL DECISIONS; MAKING VARIOUS OTHER RELATED
CHANGES; PROVIDING THAT THIS ORDINANCE IS CUMULATIVE;
PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR
PUBLICATION; AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, on August 19, 2010 the City Council requested that the City Attorney's
Office and the Ethics Review Committee work together to review the City's Code of Ethics and
to recommend amendments to the Code of Ethics that would allow members appointed by the
City Council to advisory Task Forces created by the City to participate in and vote on any
matters before such Task Forces, and to recommend any other amendments to the Code of Ethics
that the City Attorney's Office and the Ethics Review Committee deemed appropriate; and
WHEREAS, the Ethics Review Committee conducted seven (7) public meetings
between April 2011 and October 2012 in which the Ethics Review Committee discussed
potential amendments to the Code of Ethics with the City Attorney's Office; and
WHEREAS, at its meeting on October 25, 2012 the Ethics Review Committee
unanimously voted to recommend that the City Council adopt amendments to the Code of Ethics,
as set forth in the amended and restated Code of Ethics set forth in this Ordinance; and
WHEREAS, the City Council finds it necessary and desirable to adopt the amendments
to the Code of Ethics recommended by the Ethics Review Committee, as set forth in the
amended and restated Code of Ethics set forth in this Ordinance;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF FORT WORTH, TEXAS:
SECTION 1.
Chapter 2 (Administration), Article VII (Code of Ethics) of the Code of the City of Fort
Worth, Texas (1986), as amended (the "Code "), is hereby further amended to read as follows:
ARTICLE VII. CODE OF ETHICS
DIVISION 1. GENERALLY
Sec. 2 -236. Declaration of policy.
(a) It is hereby declared to be the policy of the City that the proper operation of democratic
government requires that public officials and Employees be independent, impartial and
responsible only to the people of the City and that governmental decisions and policy should be
made in the proper channels of the governmental structure. To implement such a policy, the City
Council deems it advisable to enact this Code of Ethics for all Officers, Employees and Advisory
Board members, whether elected or appointed, paid or unpaid, to serve not only as a guide for
official conduct of the City's public servants, but also as a basis for discipline for those who fail
to abide by its terms. This Code of Ethics is cumulative of other ordinances, City Charter
provisions and state statutes defining and prohibiting conflict of interest. This Section 2 -236 is
intended to reflect the general intent behind this Code of Ethics and shall not be deemed to be a
part of the Code of Ethics or serve as a basis for a violation of this Code of Ethics.
(b) This Code of Ethics has five (5) primary purposes:
(1) To encourage high ethical standards in official conduct by Officers, Employees,
and Advisory Board members;
(2) To establish minimum standards of conduct for Officers, Employees, and
Advisory Board members;
(3) To establish an Ethics Review Commission;
(4) To provide a process for the filing and resolution of complaints asserting
violations of this Article; and
(5) To provide sanctions for violations of this Article.
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(c) This Code of Ethics is not intended to be nor shall it be used as a political weapon to
intimidate or embarrass any person covered herein.
(d) Task Forces, as defined in Section 2 -237, shall conduct their meetings in accordance with
the requirements imposed on a governmental body by the Texas Open Meetings Act, Chapter
551, Texas Government Code.
See. 2 -237. Definitions.
For the purposes of this Code of Ethics the following words and phrases shall have the
meanings respectively ascribed to them by this Section:
Advisory Board means a board, commission or committee that is intended to function
only in an advisory or study capacity on a permanent basis, whether specified or implied.
Article means Chapter 2, Article VII, Code of Ethics of the Code of the City of Fort
Worth Texas (1986), as amended.
Benefit means anything reasonably regarded as pecuniary gain or pecuniary advantage,
including Benefit to any person in whom the beneficiary has a Substantial Interest, but does not
include a political contribution as defined by Title 15, Texas Election Code.
Business Entity means a sole proprietorship, partnership, firm, corporation, holding
company, joint stock company, receivership, trust, or any other entity recognized by law.
City Attorney means the City Attorney and any Assistant City Attorney appointed
pursuant to Chapter VI of the Charter of the City of Fort Worth, Texas.
City Secretary means the City Secretary and any Assistant City Secretary appointed
pursuant to Chapter III of the Charter of the City of Fort Worth, Texas.
Domestic Partner means an individual of the same or opposite gender as the person
referred to in this Article, who has lived in the same household as that person for at least six (6)
months and shares resources of life in a close, personal intimate relationship with that person,
neither of whom is married or related by blood, if, under Texas law, the individual would not be
prevented from marrying the person referred to in this Article on account of consanguinity or
prior undissolved marriage to another.
Employee means any person employed by the City whether under civil service or not
(except firefighters and police officers who are covered by state civil service laws), including
those individuals on a part-time basis, but such term shall not be extended to apply to any
independent contractor.
Hearing Officer means a Resident attorney appointed by the City Council pursuant to
Division 3 of this Article to hear appeals of determinations made by the Ethics Review
Commission.
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Intent or .Intentionally. A person acts Intentionally, or with Intent, with respect to the
nature of his conduct or to a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result.
Knowingly. A person acts Knowingly, or with knowledge, with respect to the nature of
his conduct or to circumstances surrounding his conduct when he is aware of the nature of his
conduct or that the circumstances exist. A person acts Knowingly, or with knowledge, with
respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause
the result.
Of means any mernber of the City Council and any person appointed by the Mayor
or City Council to a board, commission or committee established by ordinance, charter or state
law, including Hearing Officers appointed pursuant to Division 3; provided, no member of an
Advisory Board, Task Force or any other committee that functions only in an advisory or study
capacity shall be deemed an Officer.
Resident means a person whose home and fixed place of habitation to which that person
intends to return after any temporary absence is located within the corporate limits of the City of
Fort Worth, as determined in accordance with Section 1.015 of the Texas Election Code.
Substantial Interest.
(1) A person has a Substantial Interest in a Business Entity i£
a. The interest is ownership of ten (10) percent or more of the voting stock or
shares of the Business Entity or ownership of either ten (10) percent or
more or fifteen thousand dollars (515,000.00) or more of the fair market
value of the Business Entity; provided, however, that if any ownership
interests specified in Section 171.002(a)(1), Texas Local Government
Code, or a successor statute conflict with any ownership interests specified
herein, Section 171.002(a)(1), Texas Local Government Code, or the
successor statute shall control; or
b. Funds received by the person from the Business Entity exceed ten (10)
percent of the person's gross income for the previous year; provided,
however, that if any ownership interests specified in Section
171.002(a)(2), Texas Local Government Code, or a successor statute
conflict with any ownership interests specified herein, Section
171.002(a)(2), Texas Local Government Code, or the successor statute
shall control; or
C. The person holds a position as a member of the board of directors or other
governing board of the Business Entity; or
d. The person serves as an elected officer of the Business Entity; or
e. The person is an employee of the Business Entity; or
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f. The person is a creditor, debtor or guarantor of any person, group or
Business Entity in the amount of five thousand dollars ($5,000.00) or
more; or
g. Property of the person has been pledged to a person, group or Business
Entity or is subject to a lien in favor of the person, group or Business
Entity in the amount of five thousand dollars ($5,000.00) or more.
(2) A person does not have a Substantial Interest in a Business Entity if (i) the person
holds a position as a member of the board of directors or other governing board of
a Business Entity; and (ii) the person has been designated by the City Council to
serve on such board; and (iii) the person receives no remuneration, either directly
or indirectly, for his service on such board; and (iv) the primary nature of the
Business Entity is either charitable, nonprofit or governmental.
(3) A person has a Substantial Interest in real property if the interest is an equitable or
legal ownership interest with a fair market value of two thousand five hundred
dollars ($2,500.00) or more; provided, however, that if the ownership interest
specified in Section 171.002(b), Texas Local Government Code, or a successor
statute conflict with the ownership interest specified herein, Section 171.002(b),
Texas Local Government Code, or the successor statute shall control.
(4) A person has a Substantial Interest in a Business Entity or in real property if a
person related to the person in the first degree by consanguinity or affinity or if
the person's Domestic Partner has a Substantial Interest in a Business Entity or in
real property under this Article. A person is related in the first degree by
consanguinity to his or her father, mother, son, and daughter. A person is related
in the first degree by affinity to his or her spouse, stepchild, father -in -law, mother -
in -law, son -in -law and daughter -in -law.
Task Force means a board, commission or committee that functions only in a study
capacity in order to assist the City Council in addressing a specific issue or issues on a temporary
or short-term basis and to conclude its business within a limited amount of time, whether
specified or implied, and that is not empowered to take any final action other than the delivery of
written or verbal reports and recommendations to the City Council, the City Manager or another
party designated by the City Council.
Written Opinion of the City Attorney means any written or recorded communication of
the City Attorney, including, but not limited to, a formal written opinion, memorandum, report,
handwritten notice, electronic mail communication, facsimile communication or a
communication preserved by audio or video recording.
Sec. 2 -238. Standards of conduct.
(a) No Officer, Employee or Advisory Board member shall Knowingly:
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Accept or solicit, or Knowingly allow his or her spouse or Domestic Partner to
accept or solicit, any Benefit from any person, group or Business Entity that
might reasonably tend to influence the Officer, Employee or Advisory Board
member in the discharge of his or her official duties.
(2) Grant in the discharge of his or her official duties any improper Benefit to any
person, group or Business Entity.
(3) Accept or solicit, or Knowingly allow his or her spouse or Domestic Partner to
accept or solicit, any Benefit, including a promise of future employment, of
sufficient economic value that it might reasonably tend to influence the Officer,
Employee or Advisory Board member in the discharge of his or her official
duties, from any person, group or Business Entity:
a. That is licensed or has a Substantial Interest in any Business Entity that is
licensed by any City department, agency, commission or board on which
the Officer, Employee or Advisory Board member serves; or
b. That has a financial interest in any proposed ordinance or decision upon
which the Officer, Employee or Advisory Board member may or must act
or make a recommendation; provided, however, that any Officer,
Employee or Advisory Board member, and any spouse or Domestic
Partner thereof, may accept travel and related expenses and attend
ceremonial functions, provided that such acceptance and attendance have
been approved by the City Council prior to the occurrence of the
ceremonial function.
(4) Disclose any confidential information gained by reason of the position of the
Officer, Employee or Advisory Board member concerning the property,
operations, policies or affairs of the City, or use such confidential information to
advance any personal interest, financial or otherwise, of such Officer, Employee
or Advisory Board member, or others.
This subparagraph (4) shall not preclude disclosure of such confidential
information in connection with any investigation or proceeding regarding whether
there has been a violation of the standards of conduct set forth in this Article.
(5) Use one's position or office of employment, or City facilities, personnel,
equipment or supplies for the private gain of the Officer, Employee or Advisory
Board member, or for the private gain of his or her spouse or Domestic Partner.
(6) Engage or Knowingly allow his or her spouse or Domestic Partner to engage in
any exchange, purchase or sale of property, goods or services with the City,
except:
a. Rendering services to the City as an Officer, Employee or Advisory Board
member;
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b. The paying of taxes, fines, utility service or filing fees;
C. Subject to restrictions contained in the City Charter, executing and
performing any community facilities contract or plat in compliance with
laws and regulations applicable to any person; provided, however, that if
any City ordinance, rule or regulation allows any discretion by the
appropriate Officers or Employees in the interpretation or enforcement of
such ordinance, rule or regulation any such discretion shall be exercised in
favor of the City in connection with any such community facilities
contract or plat;
d. Members of Advisory Boards who are not otherwise Officers or
Employees of the City, may engage in any exchange, purchase or sale of
property, goods or services with the City, or enter into a contract with the
City, provided, however, that the board of which they are a member has no
advisory function or cognizance, direct or indirect, present or prospective,
with respect to the transaction in which such Advisory Board member
engages or proposes to engage.
(b) No salaried Officer or Employee shall knowingly represent, directly or indirectly, any
person, group or Business Entity:
(1) Before the City Council or any department agency, board or commission of the
City;
(2) In any action or proceeding against the interests of the City or in any litigation in
which the City or any department, agency, board or commission thereof is a party;
or
(3) In any action or proceeding in the municipal courts of the City which was
instituted by an Officer or Employee in the course of official duties, or a criminal
proceeding in which any Officer or Employee is a material witness for the
prosecution.
(c) No member of a City board or commission, other than a 'Task Force, shall Knowingly
represent, directly or indirectly, any person, group or Business Entity:
(1) Before the board or commission of which he or she is a member;
(2) Before a board or commission which has appellate jurisdiction over the board or
commission of which he or she is a member;
(3) Before the City Council in a matter over which the board or commission of which
he or she is a member has authority or an advisory ftinction, direct or indirect,
present or prospective, provided that a member of an Advisory Board who has
been elected or appointed to serve as chair or acting chair may present a
recommendation to the City Council on a matter over which the Advisory Board
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has authority if a majority of the members of the Advisory Board have voted in
favor of such recommendation;
(4) In any action or proceeding against the interests of the City or in any litigation in
which the City or any department, agency, board or commission thereof is a party;
or
(5) In any action or proceeding in the municipal courts of the City which was
instituted by an Officer or Employee in the course of official duties, or a criminal
proceeding in which any Officer or Employee is a material witness for the
prosecution.
(d) No member of a Task Force shall Knowingly represent, directly or indirectly, any person,
group or Business Entity:
(1) Before a board or commission which has appellate jurisdiction over the Task
Force of which he or she is a member; or
(2) Before the City Council in a matter over which the Task Force of which he or she
is a member has an advisory function, provided that a member of Task Force who
tvas been.,.'elected or appointed to serve as chair or acting chair may present a
recommendation to the City Council on a matter over which the Task Force has
authority if a majority of the members of the Task Force have voted in favor of
such recommendation.
(e) The restrictions in this Section do not prohibit the following:
(1) An Employee or member of a City board or commission (other than City
Council), or his or her spouse or Domestic Partner, appearing before the City
Council or a City department, agency, board or commission to represent himself
or herself in a matter affecting his or her property: provided, however, that no
such person, or his or her spouse, shall appear before the board or commission of
which he or she is a member;
(2) An Employee or Officer of an Employee organization appearing before the City
Council or a City department, agency, board or commission to address
employment matters;
(3) Otherwise eligible Employees or their spouses or Domestic Partners from
participating in federal or state-funded programs administered through the City of
Fort Worth where the Benefits of such programs are available to members of the
general public and where the Employee has no administrative, evaluative or
decision-making authority concerning the program in which he or she wishes to
participate;
(4) A partner, associate or relative of a member of the City Council, or of a salaried
Officer or Employee, from representing a person, group or Business Entity in an
action or proceeding in the municipal courts of the City which was instituted by
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an Officer or Employee in the course of official duties, or in a criminal
proceeding in which an Officer or Employee is a material witness for the
prosecution; or
(5) A member of a Task Force from participating in or voting on any matter before
the Task Force to which the member has been appointed, notwithstanding any
other provision of this section.
Sec. 2 -239. Disclosure of interest.
(a) If any Officer, Employee or Advisory Board member has a Substantial Interest in any
Business Entity or real property directly and particularly involved in any decision pending before
such Officer, Employee, or Advisory Board member, or the body of which he or she is a
member, such Officer, Employee, or Advisory Board member shall disclose such interest as
provided in paragraph (c) below and shall not, except as provided in paragraph (b) below, vote or
otherwise participate in the consideration of the matter.
(b) If any of the following interests are directly and particularly involved in any decision
pending before any Officer, Employee, or Advisory Board member, or the body of which he is a
member, such Officer, Employee, or Advisory Board member must disclose such interest as
provided in paragraph (c) below, but he shall be permitted to vote on and participate in the
consideration of such matter:
(1) A decision concerning a bank or other financial institution from which the
Officer, Employee, or Advisory Board member has a home mortgage, automobile
loan, or other installment loan, if the loan is not currently in default, was
originally for a term of more than two (2) years and cannot be accelerated except
for failure to make payments according to the terms thereof,
(2) A decision concerning a bank or other financial institution in which the Officer,
Employee, or Advisory Board member holds a savings account, checking account
or certificate of deposit and which is fully insured by the U.S. government or an
agency thereof,
(3) A decision concerning a Business Entity with which the Officer, Employee, or
Advisory Board member has a retail or credit card account;
(4) A decision concerning the approval of substitution of collateral by a City
depository bank;
(5) A decision concerning real property in which the Officer, Employee or Advisory
Board member has a Substantial Interest if it is not reasonably foreseeable that
such decision would have a special economic effect on the value of the property,
distinguishable from the effect on the public (see Section 171.004, Texas Local
Government Code).
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(6) A decision concerning the refund of property taxes to a Business Entity in which
the Officer, Employee or Advisory board member has a Substantial Interest, if
such refund is required because of a double payment of taxes or a judicially or
administratively determined reduction in the valuation of the taxed property; and
(7) A decision concerning a Business Entity with which the Officer, Employee or
Advisory Board member has a stock brokerage or securities account; and
(8) A decision concerning whether the City should accept a gift from a Business
Entity in which the Officer, Employee or Advisory Board member has a
Substantial Interest.
(c) A Officer, Employee, or Advisory Board member shall disclose the existence of any
Substantial Interest in any person, Business Entity or real property involved in any decision
pending before such Officer, Employee, or Advisory Board member, or the body of which he is a
member. To comply with this paragraph, an Officer or Advisory Board member shall, prior to
any discussion or determination of the matter, either file an affidavit of disclosure as required by
Section 171.004 of the Texas Local Government Code or, if not so required, shall publicly
disclose in the official records of the body or of the City Secretary the nature of the interest. To
comply with this paragraph, an Employee shall notify his superior in writing of the nature of any
Substantial I.nterest he may have in a person, Business Entity or real property which would be
affected by an exercise of discretionary authority by the Employee and such superior shall assign
the matter to another Employee.
(d) The provisions of paragraphs (a), (b) and (c) shall not apply in the following
circumstances:
(1) when an Officer, Employee or Advisory Board member, or the body of which he
or she is a member, is involved in a decision concerning the levy of a special
improvement district assessment against real property which is owned by a
person, group or Business Entity in which the Officer, Employee or Advisory
Board member has a Substantial Interest if (i) assessments are levied at a uniform
rate throughout the district and (ii) such rate is applied to the value of the real
property as shown on current Tarrant Appraisal District appraisal rolls; or
(2) when a Task Force member is involved in any matter or decision before the Task
Force to which the member has been appointed.
Sec. 2- 239.1. Effect of Written Opinion of City Attorney.
Notwithstanding anything to the contrary in this Article, a person does not violate any
provision of this Division for conduct undertaken in reasonable reliance, either directly or
indirectly, upon a Written Opinion of the City Attorney that was either provided prior to the
conduct complained against or requested prior to the conduct complained against and provided
not later than fifteen (15) business days following the date of such request.
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DIVISION 2. ETHICS REVIEW COMMISSION
See. 2-240. Creation and organization.
(a) Creation. There is hereby created an Ethics Review Commission ("ERC"). The ERC
shall be composed of five (5) persons, each of whom shall be appointed by majority vote of the
City Council,
(b) Qualifications. All members shall be Residents of the City who are at least eighteen (18)
years of age. At least one (1) member of the ERC shall be an attorney licensed to practice in the
State of Texas. As nearly as is reasonably possible, the membership of the ERC shall be fairly
representative of all of the several economic, religious, cultural, ethnic and racial groups that
comprise the population of the City. The City Council may solicit community, civic and
professional organizations in the City to make suggestions for appointments to the ERC.
Additionally, no member of the ERC may be:
(1) A member of the City Council or the spouse or Domestic Partner of a member of
the City Council;
(2) An Employee or the spouse or Domestic Partner of an Employee;
(3) An elected public official;
(4) A candidate for elected public office; or
(5) A member of another City board, commission or committee if the ERC has
jurisdiction under this Article to review the conduct of that person as a member of
such other board, commission or committee.
(c) Terms. ERC members shall be appointed to two-year terms, which may be staggered. No
member shall be appointed for more than three (3) consecutive full terms. An ERC member may
be removed at any time and for any reason by majority vote of the City Council.
(d) Vacancies. A position on the ERC shall be considered vacant if a member resigns, is
removed in accordance with Section 2-240(c) or any other provision of the City Code, or no
longer meets the eligibility requirements set forth in Section 2-240(b). All vacancies shall be
filled for the remainder of the unexpired terms. A member whose term has expired shall continue
to hold office until his or her successor has been appointed by the City Council and shall also
continue to hold office after his or her successor has been appointed by the City Council for the
limited purpose of the disposition of all complaints filed prior to expiration of that member's
term, which complaints shall not be considered by the successor member.
(e) Chairperson; quorum; number of'members necessary to act. The ERC shall elect a
chairperson and a vice-chairperson to one-year terms. The vice-chairperson shall act as
chairperson in the absence of the chairperson or in the event of a vacancy in that position. Three
(3) or more members of the ERC shall constitute a quorum. No action of the ERC shall be of
any force or effect unless it is adopted by the favorable votes of three (3) or more of the
members.
Sec. 2 -241. Jurisdiction and powers; meetings.
(a) Jurisdiction. The ERC shall have jurisdiction to review and make findings and
conclusions concerning an alleged violation of Division 1 of this Article and, if a violation of
Division 1 of this Article is determined to have occurred pursuant to the process outlined herein,
to levy sanctions in accordance with Division 4.
(b) Powers. The ERC shall have the following powers:
(1) To establish rules and procedures governing its own internal organization and
operations, consistent with this Article and the City's Charter and ordinances;
(2) To prescribe forms for reports, statements, notices, and other documents required
by this Article;
(3) To cause sufficient copies of this ordinance, and other ordinances, City Charter
provisions and state statutes defining and prohibiting conflicts of interest, to be
prepared and published and see that the same are made available to Officers,
Employees, Advisory Board members, elected officials and the general public;
(4) To provide or assist in providing orientations to Officers, Employees and
Advisory Board members concerning the provisions of this Article;
(5) To review all statements and reports filed with the ERC in order to obtain
compliance with this Article;
(6) To direct the City Secretary to preserve statements and reports filed with the ERC
for a period of five (5) years from the date of receipt;
(7) To review this Article when deemed necessary and make appropriate
recommendations to the City Council;
(8) To request the City Attorney's interpretation of or opinion on any provision of
this Article except in cases involving a complaint filed in accordance with this
Article, in which case Section 2 -248 shall apply;
(9) In accordance with this Article, to review, conduct hearings, and make
determinations regarding all sworn complaints alleging violations of Division 1 of
this Article by persons other than members of the City Council;
(10) In any hearing conducted pursuant to this Article, to administer oaths and
affirmations, take evidence, request and issue subpoenas for witnesses to attend
and testify, and request and, subject to Section 2 -255, issue subpoenas for the
production of books, papers, records, or other evidence needed for the
performance of the ERC's duties or the exercise of its powers;
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(11) To request the City Council and City Manager to provide such assistance as the
ERC may require in the discharge of its duties;
(12) On the ERC's own motion or at the request of the City Council, to report to the
City Council when deemed necessary concerning the activities of the ERC; and
(13) To exercise such other powers and duties as may be established by this Article.
(c) Meetings. The ERC shall meet as necessary to fulfill its responsibilities. The City
Secretary, the chairperson, or any three (3) members of the ERC may call a meeting provided
that notice is given to each member and written notice is posted in accordance with provisions of
the Texas Open Meetings Act, Chapter 551, Texas Government Code.
Sec. 2-242. Staffing.
The City Attorney shall provide such assistance to the ERC as the ERC shall request
except in cases involving a complaint filed in accordance with this Article.
Sec. 2-243. Reserved.
DIVISION 3. HEARING OFFICERS
Sec. 2-244. Appointments.
(a) Purpose. The City Council will appoint one (1) or more Hearing Officers each year to
hear appeals of determinations made by the ERC in the disposition of complaints alleging a
violation of Division I of this Article and to make recommendations to the City Council
regarding those appeals.
(b) Qualifications, A Hearing Officer shall be a Resident who is an attorney in good
standing with the State Bar of Texas and has been licensed to practice in the State of Texas for at
least ten (10) consecutive years. No Hearing Officer may be:
(1) A member of the City Council or the spouse or Domestic Partner of a member of
the City Council;
(2) An Employee or the spouse or Domestic Partner of an Employee;
(3) An elected public official;
(4) A candidate for elected public office; or
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(5) A member of another City board, commission or committee if the ERC has
jurisdiction under this Article to review the conduct of that person as a member of
such other board, commission or committee.
(c) Terms. The City Council will appoint Hearing Officers each at its first meeting in January
of each year or as soon thereafter as practicable. The City Council shall set the prescribed
compensation, if any, that Hearing Officers are to receive during their terms of service. A
Hearing Officer shall serve a term of one (1) year or until his or her successor is duly appointed,
and may be reappointed at the pleasure of the City Council. A Hearing Officer may be removed
at any time and for any reason by majority vote of the City Council, except that a Hearing
Officer that has initiated the hearing of an appeal of a determination made by the ERC in the
disposition of a complaint shall continue to serve until final disposition of the matter before him
or her.
(d) Selection of Hearing Officer to hear complaint or appeal. If the City Council appoints
more than one (1) Hearing Officer to serve during a particular year, the City Secretary shall
maintain a list of such Hearing Officers in order of appointment. In the event that the service of
a Hearing Officer is required under this Article to hear the appeal of a determination made by the
ERC in the disposition of a complaint, the City Secretary shall designate a Hearing Officer from
such list on a rotation basis.
Sec. 2 -245. Jurisdiction and powers
(a) Jurisdiction. Hearing Officers shall have jurisdiction to review and make findings and
recommendations to the City Council concerning an alleged violation of Division 1 of this
Article.
(b) Powers. Hearing Officers shall have the following powers:
(1) In accordance with this Article, to hear appeals of determinations made by the
ERC complaints alleging violations of Division 1 of this Article, to hear
arguments from and pose questions to the person filing the appeal as well as the
person responding to the appeal if those persons have elected to make a statement
at the hearing, and to make findings, determinations and recommendations to the
City Council as to the disposition of such appeals in accordance with the
standards of review set forth herein;
(2) In any de novo hearing conducted pursuant to Section 2 -253, to administer oaths
and affirmations, take evidence, request and issue subpoenas for witnesses to
attend and testify, and request and, subject to Section 2 -255, issue subpoenas for
the production of books, papers, records, or other evidence needed for the
performance of the ERC's duties or the exercise of its powers; and
(3) To exercise such other powers and duties as may be established by this Article.
See. 2-246. Reserved.
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DIVISION 4: DISPOSITION OF ALLEGED VIOLATIONS; HEARINGS
See. 2-247. Complaints.
(a) Filing. Any Resident or non - Resident owner of taxable real property within the corporate
limits of the City who believes that there has been a violation of Division 1 of this Article may
file a sworn complaint with the City Secretary's office. The complaint must be filed within two
(2) years after the alleged violation occurred. For purposes of this provision, a complaint shall
be considered filed when it has been accepted by the City Secretary as complete as to form in
accordance with subsection (c). If a complaint is dismissed by the ERC but permitted to be re-
filed in accordance with this Division, the re -filed complaint shall be deemed to have been filed
on the date that the initial complaint was accepted by the City Secretary. A complaint must be in
writing and contain the following information:
(1) The name, street or mailing address, and telephone number of the complainant;
(2) The name and position or title of the person complained about;
(3) The date and nature of the alleged violation and the specific provision of Division
1 of this Article alleged to have been violated;
(4) A statement of the facts on which the complaint is based and the date(s) on which
the violation occurred;
(5) The sources of evidence or information that are relevant to the complaint,
including, if possible, copies of all relevant documents or materials that are
available to the complainant.
(b) Sworn nature. A complaint must be accompanied by an affidavit stating that the
complaint is true and correct or that the complainant has good reason to believe and does believe
that the facts alleged constitute a violation of Division 1 of this Article. The complainant shall
swear to the facts by oath before a notary public or other person authorized by law to administer
oaths under penalty of perjury.
(c) Acceptance by the City Secretary. If a complaint does not substantially comply with the
filing requirements set forth in subsection (a) or does not comply with the requirements of
subsection (b) above, the City Secretary shall by certified mail, return receipt requested, return
the complaint to the complainant with a letter stating the defects in the complaint. If a complaint
substantially complies with the filing requirements set forth in subsection (a) and complies with
the requirements of subsection (b) above, the City Secretary shall acknowledge to the
complainant that the complaint is complete as to form and provide a copy of the complaint to the
City Attorney, ERC and the person complained against.
Sec. 2 -248. Legal counsel.
(a) Counsel for the Person Complained Against. If requested by the person complained
against, the City Council shall provide legal counsel selected by the person complained against
15
to represent the person complained against, provided that fee arrangements with any such
independent outside legal counsel must first be approved by the City Council,
(b) Counsel for the ERC. If requested by the ERC, the City Council shall provide outside
legal counsel selected by the ERC to represent the ERC, provided that fee arrangements with any
such independent outside legal counsel must be first be approved by the City Council.
Sec.2-249. Reserved.
Sec 2-250. Standards of conduct.
(a) Objectivity. Members of the ERC are subject to this Article. Members of the ERC shall
maintain objectivity in discharging their duties. If any member of the ERC has any reason to
believe that he or she cannot be impartial and intellectually honest in the discharge of the duties
of the ERC, such member shall disclose the facts and circumstances of that belief and shall not
vote or otherwise participate in consideration of the matter.
(b) Prohibition qfexpartecommunications. After a complaint has been filed and during the
pendency of a complaint before the ERC, a member of the ERC may not communicate directly
or indirectly with any party or person about any issue of law or fact regarding the complaint
except at a meeting of the ERC. However, nothing in this section shall prohibit communications
between members of the ERC and the ERC's attorney, or between members of the ERC
concerning whether to call a hearing.
Sec. 2-251. Hearings.
(a) Scheduling. Not later than fifteen (15) business days after acceptance of a complaint, the
City Secretary shall. notify in writing the ERC, the complainant and the person complained
against of the date, time and location of a hearing on the complaint. Such written notice shall be
sent to the complainant and the person complained against by certified mail, return receipt
requested. If the hearing is not held within thirty (30) business days after receipt of the
complaint, the City Secretary shall notify both the complainant and the person complained
against of the reasons for the delay.
(b) Hearing Rules. All hearings shall be conducted in accordance with the Texas Open
Meetings Act, Chapter 551, Texas Government Code. The ERC shall have the right to establish
time limits and other rules of procedure for a hearing and relating to the participation of any
person in the hearing, subject to subsections (c) and (d) below. All proceedings of the hearing
shall be reduced to writing by a court reporter, who shall file the transcript of the hearing with
the City Secretary within such time as is specified by the ERC.
(c) Rights of the Person Complained Against. The person complained against has the right
to attend the hearing, the night to make a statement, the right to present witnesses, and the right to
be represented by legal counsel or another advisor.
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(d) Rights of the Complainant. The complainant has the right to attend the hearing, the right
to make a statement, the right to present witnesses, and the right to be represented by legal
counsel or another advisor.
(e) Order of Business. Once a quorum of the ERC convenes the hearing, the order of
business shall be as follows:
(1) To ascertain whether the complainant and the person complained against are
present;
(2) To determine whether the complaint alleges conduct which, based on
substantially the same facts asserted in the complaint, the ERC has already
determined is not a violation of Division 1 of this Article;
(3) To determine whether the conduct complained against occurred within two (2)
years of the date on which the complaint was filed;
(4) To determine whether the complaint alleges conduct which would be a violation
of Division 1 of this Article;
(5) To determine whether conduct complained against was in reasonable reliance
upon an opinion of the City Attorney, whether verbal or written;
(6) To hear evidence and statements as to whether the person complained against
violated a provision of Division 1 of this Article as alleged in the complaint;
(7) To deliberate and determine whether the person complained against violated
Division 1 of this Article as alleged in the complaint; and
(8) To deliberate and determine a sanction to be imposed.
In the ERC's sole discretion and as permitted by the Texas Open Meetings Act, Chapter
551, Texas Government Code, the ERC shall have the right to recess and continue the hearing
one or more times. However, any member of the ERC who is not present at a hearing or
continued hearing on a particular complaint may not participate in any discussion, voting or
disposition of that complaint in any further continued hearing on that complaint.
(f) Ascertaining presence of the parties.
(1) If the complainant fails to appear at the hearing, the ERC shall dismiss the
complaint and adjourn the hearing. Within ten (10) business days, the ERC shall
deliver to the complainant, the person complained against and the City Secretary a
written notice of the ERC's dismissal. The ERC's dismissal of a complaint for
failure to appear at the hearing is final and may not be appealed. If the ERC
dismisses a complaint for failure of the complainant to appear at the hearing, the
complainant may not file another complaint alleging a violation of Division 1 of
this Article for substantially the same conduct unless the complainant files a
written request for a rehearing within thirty (30) calendar days of the date of the
17
hearing explaining why the complainant did not appear at the hearing and the
ERC determines, on the basis of such written request, that there was good cause
for the complainant not to appear at the hearing.
(2) If the complainant appears at the hearing but the person complained against does
not, the ERC may proceed with the hearing in that person's absence, provided that
the City Secretary has a certified mail receipt that the person complained against
received notice of the date, time and location of the hearing.
(g) Preliminary testimony by the complainant.
In order to address the preliminary procedures set forth in subsections (h), (i), 0) and (k),
the ERC shall hear preliminary testimony of the complainant, who shall state the alleged
violation and describe in narrative form the testimony and other evidence that he or she is
prepared to present to prove the alleged violation as stated in the complaint. Such
testimony shall be under oath.
(h) Determining whether the complaint alleges conduct which, based on substantially the
same facts asserted in the complaint, the ERC has already determined is not a violation
of Division I of this Article.
If the ERC finds that the complaint alleges conduct which, based on substantially the
same facts asserted in the complaint, the ERC has already determined is not a violation of
Division I of this Article and such previous determination was not reversed on appeal pursuant
to this Article, the ERC shall dismiss the complaint and adjourn the hearing. Within ten (10)
business days, the ERC shall deliver to the complainant, the person complained against and the
City Secretary a written notice of the ERC's determination, which shall include the reasons for
such decision. The ERC's dismissal of a complaint on such grounds is final and may not be
appealed.
(i) Determining whether the conduct occurred within two (2) years of the complaint.
If the ERC determines that the conduct which the complainant alleges to be a violation of
Division I of this Article occurred more than two (2) years prior to the date on which the
complaint was filed, the ERC shall dismiss the complaint. Within ten (10) business days, the
ERC shall deliver to the complainant, the person complained against and the City Secretary a
written notice of the ERC's determination, which shall include the reasons for such decision.
The ERC's dismissal of a complaint on such grounds is final and may not be appealed.
10
0) Determining whether a complaint is insufficient.
In order to determine whether a complaint sufficiently alleges conduct which would be a
violation of Division 1 of this Article, the ERC shall hear the testimony of the complainant, who
shall state the alleged violation and describe in narrative form the testimony and other evidence
that the complainant is prepared to present. Such testimony shall be under oath, but the ERC
shall not permit testimony by other witnesses, cross - examination or any findings of fact.
Members of the ERC may question the complainant. The person complained against shall have
the opportunity, but is not required, to describe in narrative form the testimony and other
evidence that he or she is prepared to present in order to dispute or rebut the alleged violation.
If the ERC determines that there are no reasonable grounds to believe that a violation of
Division 1 of this Article has occurred, the ERC shall dismiss the complaint and adjourn the
hearing. Within ten (10) business days, the ERC shall deliver to the complainant, the person
complained against and the City Secretary a written notice of the ERC's determination, which
shall include the reasons for such decision. The ERC's dismissal of a complaint on such grounds
shall be final unless appealed in accordance with Section 2 -253.
(k) To consider whether conduct complained against was in reasonable reliance on a City
Attorney opinion.
The ERC shall give the person complained against the opportunity to testify if the person
complained against asserts that the conduct alleged in the complaint was undertaken in
reasonable reliance upon an opinion of the City Attorney, provided that the person complained
against first waives the attorney- client privilege with respect to the opinion. Such testimony
shall be under oath, and any such testimony shall constitute a waiver of the attorney - client
privilege with respect to the opinion. Any testimony that the conduct of the person complained
against was undertaken in reasonable reliance upon a Written Opinion of the City Attorney, or
upon a verbal opinion of the City Attorney that was followed by a Written Opinion of the City
Attorney within fifteen (15) business days following the date such written opinion was requested,
shall constitute prima facie evidence that the conduct of the person complained against did not
violate a provision of Division 1 of this Article.
The ERC shall then determine the extent to which the conduct of the person complained
against was undertaken in reasonable reliance upon an opinion of the City Attorney:
(1) If the ERC determines that all of the conduct of the person complained against
was undertaken in reasonable reliance, either directly or indirectly, upon a Written
Opinion of the City Attorney that was either provided prior to the conduct
complained against or requested prior to the conduct complained against and
provided not later than fifteen (15) business days following the date of such
request, the ERC shall dismiss the complaint and adjourn the hearing. Within ten
(10) business days, the ERC shall deliver to the complainant, the person
complained against and the City Secretary a written notice of the ERC's
determination, which shall include the reasons for such decision. The ERC's
dismissal of a complaint on such grounds shall be final unless appealed in
accordance with Section 2 -253. ]notwithstanding the foregoing, if the ERC
believes that the City Attorney's opinion may be incorrect or no longer valid, the
19
ERC may include in such written notice of dismissal a request that the City
Attorney reconsider the opinion, but the ERC shall not have the right to overrule
the opinion or substitute its own opinion.
(2) If the ERC determines that some, but not all, of the conduct of the person
complained against was undertaken in reasonable reliance, either directly or
indirectly, upon a Written Opinion of the City Attorney that was either provided
prior to the conduct complained against or requested prior to the conduct
complained against and provided not later than fifteen (15) business days
following the date of such request, the ERC shall dismiss complaint and adjourn
the hearing. Within ten (10) business days, the ERC shall deliver to the
complainant, the person complained against and the City Secretary a written
notice of the ERC's determination, which shall include the reasons for such
decision. In this event, the complainant shall be permitted one (1) opportunity to
amend and resubmit the complaint within ten (10) calendar days citing only that
portion of the conduct that the person complained against undertook without
reasonable reliance upon a Written Opinion of the City Attorney that was either
provided prior to the conduct complained against or requested prior to the conduct
complained against and provided not later than fifteen (15) business days
following the date of such request. Otherwise, the ERC's dismissal of a
complaint on such grounds shall be final unless appealed in accordance with
Section 2 -253. Notwithstanding the foregoing, if the ERC believes that the City
Attorney's opinion may be incorrect or no longer valid, the ERC may include in
such written notice of dismissal a request that the City Attorney reconsider the
opinion, but the ERC shall not have the right to overrule the opinion or substitute
its own opinion.
(3) If the ERC determines that some or all of the conduct of the person complained
against was undertaken in reasonable reliance upon a verbal opinion of the City
Attorney but that the person complained against requested that the City Attorney
supplement that opinion with a written opinion, and such request was made
fifteen (15) or fewer business days prior to the date of the hearing, the ERC shall
recess the hearing and reconvene on a date after the expiration of at least fifteen
(15) business days following the date the written opinion was requested.
(4) If the ERC determines that none of the conduct of the person complained against
was undertaken in reasonable reliance upon an opinion of the City Attorney, or
that some or all of the conduct complained against was undertaken in reasonable
reliance only upon a verbal opinion of the City Attorney that was not followed by
a written opinion provided in accordance with Section 2- 239.1, the ERC shall
proceed with the hearing.
(1) Evidentiary Proceeding. Unless the ERC dismisses the complaint in accordance with
Sections 2 -251 (f), (h), (i), 0) or (k), the ERC shall determine whether a violation of Division 1
of this Article, as alleged in the complaint, has occurred. All statements and testimony of the
complainant, the person complained against, and any witnesses shall be under oath. After
hearing any statements of the complainants and the person complained against and any other
evidence presented in accordance with this Article, the ERC shall make its determination based
20
on the preponderance of the evidence (the greater weight and degree of the credible evidence and
testimony). At the conclusion of the hearing, the ERC shall announce its determination and, if
the ERC determines that a violation of Division I of this Article has occurred, identify the
particular provision or provisions that were violated and announce any sanction to be imposed or
recommended in accordance with Section 2-252. Within ten (10) business days the ERC shall
deliver to the complainant, the person complained against and the City Secretary a written notice
of the ERC's determination. The ERC's determination and sanction (if applicable) shall be final
unless appealed in accordance with Section 2-253. In lieu of such evidentiary proceeding, the
person complained against may acknowledge that he or she has committed a violation of
Division I of this Article, in which case the ERC shall consider the sanction to be imposed or
recommended in accordance with Section 2-252.
See. 2-252. Sanctions to be imposed or recommended.
If the ERC determines that a violation of Division I of this Article has occurred, it shall proceed
directly to determination of the appropriate sanctions. The ERC may receive additional
testimony or statements before considering sanctions but is not required to do so.
(a) Sanctions. If the ERC determines that a violation of Division I of this Article has
occurred, it may impose the following sanctions:
(1) A letter of notification shall be the appropriate sanction when (1) the violation is
clearly unintentional, (ii) the conduct of the person complained against was done in
reliance upon an opinion of the City Attorney that was not in writing, or (iii) the violation
may have been unintentional but the ERC does not consider the level of offense to be
severe. A letter of notification shall advise the person to whom it is directed of any steps
to be taken to avoid future violations.
(2) A letter of admonition shall be the appropriate sanction in those cases in which the
ERC finds that the violation (i) may have been unintentional or (ii) the violation was
clearly unintentional but the ERC considers the level of offense to be severe.
(3) A letter of reprimand shall be the appropriate sanction when the ERC finds that a
violation has been committed Intentionally or through reckless disregard of Division I of
this Article. A letter of reprimand directed to an Employee shall also be sent to the City
Manager and included in the Employee's personnel file.
(b) Recommendations. In addition to the sanctions that may be imposed pursuant to
subsection (a) above, the ERC may make the following recommendations:
(1) Disciplinary action against persons other than the .Mayor or members of the City
Council. If the ERC finds that the person complained against (other than the
Mayor or a member of the City Council) committed a serious or repeated
violation of Division I of this Article Intentionally or through culpable disregard
of Division I of this Article, the ERC may issue a written recommendation for
disciplinary action. If the person who committed the violation is an Employee
(other than an Employee appointed by the City Council), the ERC may issue a
21
recommendation to the City Manager that the City Manager suspend or terminate
the Employee. If the person who committed the violation is an Employee
appointed by the City Council, the ERC may issue a recommendation to the City
Council that the City Council suspend or terminate the Employee. If the person
who committed the violation is an Officer (other than a member of the City
Council) or member of an Advisory Board or Task Force, the ERC may issue a
recommendation to the City Council that the Officer, Advisory Board or Task
Force member be removed from his or her position.
(2) Censure of Mayor or members of the City Council. If the person complained
against is the Mayor or a member of the City Council, and the ERC finds that
such person committed a serious or repeated violation of Division I of this Article
Intentionally or through culpable disregard of Division 1 of this Article, the ERC
may issue a letter of censure. The letter of censure may include a recommendation
of recall or a recommendation to institute proceedings for removal from office. A
letter of censure, and any recommendation of recall or to institute proceedings for
removal from office, shall be transmitted to the City Secretary and to the Mayor
and City Council. Any recall proceedings shall be subject to the procedures
specified in the City Charter. Any proceedings for removal from office shall be in
compliance with provisions of the City Charter and state law.
Sec. 2 -253. Appeal of certain determinations.
(a) Determinations that may be appealed. The following determinations of the ERC may be
appealed in accordance with this Section 2 -253:
(1) The dismissal of a complaint for failure to allege conduct which would be a
violation of Division 1 of this Article, pursuant to Section 2- 2510);
(2) The dismissal of all or any portion of a complaint on grounds that the conduct
alleged was undertaken in reasonable reliance upon a Written Opinion of the City
Attorney, pursuant to Section 2- 25I(k); or
(3) The determination as to whether a violation of Division 1 of this Article occurred,
as alleged in a complaint heard by the ERC, pursuant to Section 2- 251(1).
(b) Eligibility requirements and filing deadline. Only a party against whom a determination
of the ERC described in Section 2- 253(a) was made may file an appeal. The appeal must be in
writing and filed with the City Secretary within ten (10) calendar days after the ERC's
determination.
(c) Filing requirement. The appeal must state sufficient facts to show that the ERC
committed a material error in its deliberations.
(d) Sworn nature. An appeal must be accompanied by an affidavit stating that the person
filing the appeal has good reason to believe and does believe that the facts alleged in the appeal
22
are true and correct. The appellant shall swear to the facts by oath before a notary public or other
person authorized by law to administer oaths under penalty of perjury.
(e) Acceptance by the City Secretary. If an appeal does not comply with all of the eligibility
requirements and filing deadline requirements of subsection (b) above or the requirements of
subsection (d) above, or does not substantially comply with the requirements of subsection (c)
above, the City Secretary shall, by certified mail, return receipt requested, return the appeal to
the person filing the appeal with a letter stating the defects in the appeal. If an appeal complies
with all of the eligibility requirements and filing deadline requirements of subsections (b) and (d)
above and substantially complies with the requirements of subsection (c) above, the City
Secretary shall acknowledge to the person filing the appeal that the appeal is complete as to form
and provide a copy of the appeal to the City Council, the City Attorney and the person
complained against.
(f) Designation of Hearing Officer and scheduling of evidentiary hearing. Not later than
fifteen (15) business days after acceptance of an appeal, the City Secretary shall designate the
Hearing Officer in accordance with Section 2- 244(d) and notify in writing the Hearing Officer,
the person filing the appeal and the person responding to the appeal of the hearing's date, time
and location. Such written notice shall be sent to the person filing the appeal and the person
responding to the appeal by certified mail, return receipt requested. If the hearing is not held
within thirty (30) business days after designation of the Hearing Officer, the City Secretary shall
notify both the person filing the appeal and the person responding to the appeal of the reasons for
the delay.
(g) Hearing rules. The hearing shall be based solely on the record of the ERC's hearing.
The hearing shall be conducted in accordance with the Texas Open Meetings Act, Chapter 551,
Texas Government Code. The Hearing Officer shall have the right to establish time limits and
other rules of procedure for the hearing and relating to the participation of any person in the
hearing, subject to subsections (h) and (i) below. All proceedings of the hearing shall be reduced
to writing by a court reporter, who shall file the transcript of the hearing with the City Secretary
within such time as is specified by the Hearing Officer. All costs of preparing and filing such
transcript shall be borne by the appellant.
(h) Rights of appellee. The person responding to the appeal has the right to attend the
hearing, the right to make a statement, the right to present witnesses, and the right to be
represented by legal counsel or another advisor.
(i) Rights of appellant. The person filing the appeal has the right to attend the hearing, the
right to make a statement, the right to present witnesses, and the right to be represented by legal
counsel or another advisor.
0) Order of business. The order of business before the Hearing Officer shall be as follows:
(1) To ascertain whether the person filing the appeal and the person responding to the
appeal are present;
(2) To determine whether the appeal is based on a determination of the ERC
described in Section 2- 253(a);
23
(3) To review the record, hear statements from both the person filing the appeal and
the person responding to the appeal as to whether the record shows that the ERC
materially erred in its determination as to the issue on appeal, and, based on the
particular standard of review set forth below, to determine whether the ERC
materially erred in such determination;
(4) To make a recommendation to the City Council as to whether the person
originally complained against violated Division 1 of this Article as alleged in the
complaint originally filed; and
(5) If the recommendation to the City Council is to find that the person complained
against did violate Division 1 of this Article as alleged in the complaint, also to
recommend a sanction for the City Council to impose in accordance with Section
2 -252.
(k) Ascertaining presence of the parties.
(1) If the person filing the appeal fails to appear at the hearing, the Hearing Officer
shall dismiss the appeal and adjourn the hearing. Within ten (10) business days,
the Hearing Officer shall deliver to the person filing the appeal, the person
responding to the appeal, the ERC, and the City Secretary a written notice of the
Hearing Officer's dismissal. The Hearing Officer's dismissal of an appeal for
failure to appear at the hearing is final unless the person filing the appeal petitions
the Hearing Officer in writing within thirty (30) calendar days following delivery
of the dismissal to reconsider on grounds that the person had good cause to not
appear and the Hearing Officer grants such request. Any petition for
reconsideration filed by the appellant must include a statement that explains in
detail why the person filing the appeal did not appear.
(2) If the person filing the appeal appears at the hearing but the person responding to
the appeal does not, the Hearing Officer may proceed with the hearing in that
person's absence provided that the City Secretary has a certified mail receipt that
the respondent received notice of the date, time and location of the hearing.
(1) Determining whether there is a sufficient basis for the appeal. If the Hearing Officer
finds that the appeal is not based on a determination of the ERC described in Section 2- 253(a),
the Hearing Officer shall deny the appeal in its entirety. Within ten (10) business days, the
Hearing Officer shall deliver to the person filing the appeal, the person responding to the appeal
and the City Secretary a written notice of the Hearing Officer's determination, which shall
include the reasons for such decision. The Hearing Officer's denial of an appeal on such
grounds is final and will not be considered by the City Council pursuant to subsection (q).
(m) Determining whether the appeal is sufficient. If the Hearing Officer finds that the appeal
does not state sufficient facts to satisfy any of the requirements of Section 2- 253(b), the Hearing
Officer shall deny the appeal in its entirety. Within ten (10) business days, the Hearing Officer
shall deliver to the person filing the appeal, the person responding to the appeal and the City
Secretary a written notice of the Hearing Officer's determination, which shall include the reasons
24
for such decision. The Hearing Officer's denial of an appeal on such grounds is final and will
not be considered by the City Council pursuant to subsection (q).
(n) Review of determination that complaint does not allege conduct which would be a
violation of Division 1. If the appeal is based on the ERC's dismissal of a complaint for failure
to allege conduct which would be a violation of Division I of this Article, pursuant to Section 2-
2510), the Hearing Officer shall review the record and determine whether the ERC materially
erred in its determination that the complaint did not allege conduct which would be a violation of
Division 1. The Hearing Officer's determination as to whether the ERC materially erred in its
determination that the complaint did not allege conduct which would be in violation of Division
1 shall be based on a de novo review of the record. If, based on such standard of review, the
Hearing Officer determines that the ERC did err materially in its determination that the
complaint did not allege conduct which would be a violation of Division 1, the Hearing Officer
shall remand the complaint to the ERC, and the ERC shall proceed to consider the complaint in
accordance with the remaining order of business set forth in Section 2-251. If the Hearing
Officer determines that the ERC did not err materially, the Hearing Officer shall deny the appeal
and adjourn the hearing. Within ten (10) business days, the Hearing Officer shall deliver to the
person filing the appeal, the person responding to the appeal and the City Secretary a written
notice of the Hearing Officer's determination, which shall include the reasons for such decision.
The Hearing Officer's denial of an appeal on such grounds is final and will not be considered by
the City Council pursuant to subsection (q).
(o) Review of determination that conduct alleged was undertaken in reasonable reliance
upon a Written Opinion qf'the City Attorney. If the appeal is based on the ERC's dismissal of a
complaint on grounds that the conduct alleged was undertaken in reasonable reliance upon a
Written Opinion of the City Attorney, pursuant to Section 2-251(k), the Hearing Officer shall
review the record and determine whether the record shows that the ERC materially erred in its
determination that the conduct alleged in the complaint was undertaken in reasonable reliance
upon a Written Opinion of the City Attorney. The Hearing Officer's determination as to whether
the ERC materially erred in its determination that the conduct alleged in the complaint was
undertaken in reasonable reliance upon a Written Opinion of the City Attorney shall be based on
the substantial evidence standard of review of the record. If, based on such standard of review,
the Hearing Officer determines that the ERC did err materially in its determination that the
conduct alleged in the complaint was undertaken in reasonable reliance upon a Written Opinion
of the City Attorney, the Hearing Officer shall remand the complaint to the ERC, and the ERC
shall proceed to consider the complaint in accordance with the remaining order of business set
forth in Section 2-251. If the Hearing Officer determines that the ERC did not err materially in
its determination, the Hearing Officer shall deny the appeal and adjourn the hearing. Within ten
(10) business days, the Hearing Officer shall deliver to the person filing the appeal, the person
responding to the appeal and the City Secretary a written notice of the Hearing Officer's
determination, which shall include the reasons for such decision. The Hearing Officer's denial of
an appeal on such grounds is final and will not be considered by the City �Council pursuant to
subsection (q).
(p) Review of ERC's determination based on the evidentiary proceeding. If the appeal is
based on the ERC's determination at the conclusion of its evidentiary proceeding conducted
pursuant to Section 2- 251(1) as to whether a violation of Division I of this Article occurred, the
Hearing Officer shall review the record and determine whether the ERC materially erred in its
25
determination as to whether a violation of Division I of this Article occurred. The Hearing
Officer's determination as to whether the ERC materially erred in its determination shall be
based on the substantial evidence standard of review of the record. The Hearing Officer's
determination shall proceed as follows:
(1) If the ERC found that a violation of Division I of this Article did not occur, and
the Hearing Officer determines that the ERC did not err materially in such
determination, the Hearing Officer shall deny the appeal and adjourn the hearing.
Within ten (10) business days, the Hearing Officer shall deliver to the person
filing the appeal, the person responding to the appeal, the City Secretary, and each
member of the City Council a written copy of the Hearing Officer's
determination, which shall include the reasons for such decision. The Hearing
Officer's determination in this regard shall be final and will not be considered by
the City Council pursuant to subsection (q).
(2) If the ERC found that a violation of Division I of this Article did occur, and the
Hearing Officer determines that the ERC materially erred in such determination,
the Hearing Officer shall uphold the appeal. Within ten (10) business days, the
Hearing Officer shall deliver to the person filing the appeal, the person
responding to the appeal, and the City Secretary a written copy of the Hearing
Officer's determination, which shall include the reasons for such decision and
recommend that the City Council accept the Hearing Officer's determination that
a violation of Division 1 of this Article did not occur and that no sanction should
be imposed upon the person complained against.
(3) If the ERC found that a violation of Division I of this Article did occur, and the
Hearing Officer determines that the ERC did not err materially in such
determination, the Hearing Officer shall deny the appeal and adjourn the hearing.
Within ten (10) business days, the Hearing Officer shall deliver to the person
filing the appeal, the person responding to the appeal, and the City Secretary a
written copy of the Hearing Officer's determination, which shall include the
reasons for such decision and recommend that the City Council accept the ERCs
determination that a violation of Division I of this Article occurred and the
sanction to be imposed or recommended in accordance with Section 2-252.
(4) If the ERC found that a violation of Division I of this Article did not occur, and
the Hearing Officer determines that the ERC materially erred in such
determination, the Hearing Officer shall uphold the appeal and, based on a de
nova standard of review of the record, announce any sanction to be imposed or
recommended in accordance with Section 2-252. Within ten (10) business days,
the Hearing Officer shall deliver to the person filing the appeal, the person
responding to the appeal, and the City Secretary a written copy of the Hearing
Officer's determination, which shall include the reasons for such decision and
recommend that the City Council accept the Hearing Officer's determination that
a violation of Division I of this Article occurred and the sanction to be imposed
or recommended in accordance with Section 2-252.
26
(q) City Council hearing. Within forty-five (45) calendar days following the date on which
the Hearing Officer provides the City Secretary with a copy of any recommendations of the
Hearing Officer pursuant to subsection (p)(2), (3), or (4), or as soon thereafter as is practicable,
the City Secretary shall deliver to the City Council a written copy of the Hearing Officer's
determination and recommendations, as well as the transcripts of the hearings of both the ERC
and the Hearing Officer, and shall schedule a hearing before the City Council to consider such
recommendations. The written determination and recommendations of the Hearing Officer, as
well as the transcripts of the proceedings before the ERC and the Hearing Officer, shall form the
sole evidentiary basis for the City Council hearing. No other evidence or testimony shall be
presented at the hearing before the City Council. However, the person filing the appeal and the
person responding to the appeal shall each be entitled to make a statement to the City Council as
to whether the City Council should adopt, reject, or modify the recommendations of the Hearing
Officer. Each statement shall be subject to any time limitation imposed by the presiding Officer
of the City Council. No rebuttal statements may be made. Following any such statements and a
review by the City Council of the transcript of the testimony and evidence presented to the
Hearing Officer as well as the Hearing Officer's determination and recommendations, the City
Council shall, by majority vote, adopt, reject or modify the determination and any
recommendations of the Heating Officer. If any adopted determination includes a recommended
sanction against an Employee, the City Manager will be solely responsible for considering,
imposing and carrying out such sanction in accordance with the City Manager's authority under
Chapter V of the Charter of the City of Fort Worth, Texas. If any adopted determination
includes a recommended sanction against an Officer other than a member of the City Council,
the City Council, by majority vote, will be responsible for considering, imposing and carrying
out such sanction. Within ten (10) business days, the City Secretary shall deliver to the person
filing the appeal and the person responding to the appeal a written copy of the City Council's
determination.
See. 2-254. Criminal penalties.
Except where otherwise provided by state law or in Section 2-255, it is not the intention
of the City Council in adopting this Article that violations thereof be subject to criminal
penalties.
See. 2-255. Subpoenas.
(a) The ERC or Hearing Officer, at their discretion, may issue one (1) or more subpoenas for
the attendance of witnesses, the production of books, papers, records or other evidence needed
for the performance of their duties or exercise of their powers. The subpoena shall be issued on
the sworn application (of either the complaining party or the person complained against) stating
that the applicant in good faith believes that such item exists, and stating in detail a description of
any such items, sufficient to be able to identify such item, that the party requesting the subpoena
has not been able to obtain such item otherwise, and that the applicant in good faith believes that
the item is in the possession or control of a person or entity whose name and address is specified
in the sworn application.
27
(b) The ERC or Hearing Officer may issue any such subpoena upon terms and conditions
that they deem applicable.
(c) The party requesting the subpoena, or the party to the proceeding opposing it, and the
person or Business Entity against whom the subpoena is sought each has the right to appeal to
the City Council any decision by the ERC or Hearing Officer concerning the request for
subpoena. Such appeal shall be made in writing within ten (10) calendar days after the ERC or
Hearing Officer's decision (which must be in writing) by filing such appeal with the City
Secretary. All proceedings before the ERC or Hearing Officer shall be stayed until after the City
Council acts on the appeal.
(d) If the City Council denies such an appeal or the time for an appeal has expired, any
person who is subpoenaed by the ERC or Hearing Officer to give testimony or to produce books,
papers, records or other evidence needed for the performance of the ERC or Hearing Officer's
duties or the exercise of their powers, willfully makes default or refuses to answer any question
pertinent to the proceedings before the ERC or Hearing Officer, or refuses to obey any subpoena
or falls to produce books, papers and other evidence required by the ERC or Hearing Officer,
shall be deemed guilty of a misdemeanor and may be fined not more than five hundred dollars
($500.00), for each offense. Each day that a violation is permitted to exist shall constitute a
separate offense.
See. 2-256. Evidence of criminal conduct.
During the performance of their duties under the provisions of this Article, if the ERC,
Hearing Officer, City Manager or City Council receives evidence of criminal conduct, the ERC,
Hearing Officer, City Manager or council may provide such evidence to the prosecuting attorney
having jurisdiction of such matter for appropriate action.
See. 2-257. Postponement of hearings in certain cases.
If a complaint alleges facts concerning a possible violation of Division I of this Article
and such facts are involved in a criminal investigation or a criminal proceeding before a grand
jury or the courts, the ERC, Hearing Officer, City Manager or City Council may, when they
deem appropriate, postpone any hearing or any appeal concerning such complaint until after the
criminal investigation or criminal proceedings are terminated.
Secs. 2-258 through 2-260. Reserved.
SECTION 2.
Chapter 2, Division 4 of the Code (Financial Disclosure by Officers and Candidates) is
hereby renumbered as Chapter 2, Division 5.
28
SECTION 3.
This Ordinance shall be cumulative of all ordinances of the City, except where the
provisions of this Ordinance are in direct conflict with the provisions of such other ordinances, in
which case the conflicting provisions of such other ordinances are hereby repealed.
SECTION 4.
The sections, paragraphs, sentences, clauses and phrases of this Ordinance are severable.
If any portion of this Ordinance is declared illegal or unconstitutional by the valid final judgment
or decree of any court of competent jurisdiction, such illegality or unconstitutionality shall not
affect the legality and enforceability of any of the remaining portions of this Ordinance.
SECTION 5.
After the adoption of this Ordinance and in accordance with Section 2 of Chapter XXV
of the City Charter of the City of Fort Worth, Texas, the City Secretary of the City of Fort Worth
is hereby directed to have this Ordinance published in its entirety two (2) times in the official
newspaper of the City. In lieu thereof, the City Secretary of the City of Fort Worth may have
descriptive captions or titles that summarize the purpose of this Ordinance and the penalty for
violations thereof published two (2) times in the official newspaper of the City.
SECTION 6.
This Ordinance shall be in full force and effect following its adoption and publication as
specified herein.
AND IT IS SO ORDAINED.
APPROVED AS TO FORM AND LEGALITY:
Sarah J. Fl wider
W Full
City A�e/yv n
ADOPTED: December 18, 2012
EFFECTIVE: E 2
a
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 12/18/2012 - Ordinance No. 20548 -12 -2012,
CONTINUED FROM A PREVIOUS WEEK
DATE: Tuesday, December 04, 2012
LOG NAME: 12ETHICS CODE AMEND
REFERENCE NO.: G -17745
SUBJECT:
Adopt Ordinance Amending Chapter 2, "Administration ", Article VII, "Code of Ethics" of the Code of the City
of Fort Worth to Add and Amend Definitions; Allow for Participation by Task Force Members; Provide for
Reliance on a Written Opinion of the City Attorney; Rename the Ethics Review Committee; Establish the
Duties and Responsibilities of the City Secretary and the City Attorney; Provide for the Appointment,
Jurisdiction and Powers of Hearing Officers; Specify the Criteria of a Valid Ethics Complaint; Provide for
the Retention of Outside Legal Counsel; and Outline the Appeal Process (ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council adopt the attached Ordinance amending Chapter 2,
"Administration ", Article VII, "Code of Ethics" of the Code of the City of Fort Worth to add and amend
definitions; allow for participation by Task Force Members; provide for reliance on a written opinion of the
City Attorney; rename the Ethics Review Committee; establish the duties and responsibilities of the City
Secretary and the City Attorney; provide for the appointment, jurisdiction and powers of Hearing Officers;
specify the criteria of a valid ethics complaint; provide for the retention of outside legal counsel; and
outline the appeal process.
DISCUSSION:
Chapter 2, Article VII of the City Code establishes a Code of Ethics (Ethics Code) to serve as a
supplement to state statutes and as a guide for official conduct for City Council Members, Employees and
Board and Commission Members. The Ethics Code also establishes an Ethics Review Committee,
governs the complaint and appeal process and provides for sanctions.
On August 19, 2010, the City Council requested that the City Attorney's Office and the Ethics Review
Committee work together to review the Ethics Code and to recommend an amendment to the Ethics Code
that would allow members appointed by the City Council to Advisory Task Forces created by the City to
participate in and vote on any matters before the Task Forces. The City Council also requested that the
Committee recommend any other amendment to the Ethics Code that the City Attorney's Office and the
Committee deem appropriate.
The Ethics Review Committee conducted seven public meetings between April 2011 and October 2012 to
discuss potential amendments to the Ethics Code and to perform a comparative analysis in the cities of
Arlington, Austin, Corpus Christi, Dallas, El Paso and San Antonio. The recommendations of the Ethics
Review Committee were presented to the City Council at its November 12, 2012, Pre - Council meeting.
The attached ordinance makes the following amendments to the Ethics Code:
Division 1. Generally.
Logname: 12ETHICS CODE AMEND Pagel of 4
Declaration of Polic .
Section 2-236 is amended to clarify that the declaration of policy is intended to reflect the general intent
behind the Ethics Code and to o|ahfv that the policy is not basis for o violation of the Ethics Code. The
amendment also adds five primary purposes 0f the Ethics Code.
2.
Section 2-237 is amended to add definitions for "Domestic Partner," "Task Force," "Resident," "City
Attorney" and "Written Opinion of the City Attorney." The definitions for "Advisory Board," "Officer" and
"Substantial Interest" are clarified and to provide consistency with state law.
3. Standards of Con-duct.
Section 2-238(a) is amended to include "Domestic Partners" and prohibits a City Officer, Employee or
Advisory Board Member from knowingly allowing his or her Domestic Partner Orspouse from accepting or
soliciting a benefit that might reasonably tend to influence the City Officer, employee or Advisory Board
member in the discharge of his or official duties or to allow his or her Domestic Partner or spouse to
exchange purchase or sell real property.
Section 2-238/c\|s amended k) provide that a member ofan Advisory Board O[ Task Force may present 8
recommendation to the City Council on a matter over which the Advisory Board or Task Force has
authority if8 majority ofthe0e0berScftheAdvisoryBoandnrT8SkForcehaSvotedinfovorofsuch
Section 2-238(d)(5) is a new provision that has been added to allow a member of a Task Force to
participate in and vote OD any matter before the Task Force tn which the member has been appointed
without that constituting a violation nf the Ethics Code.
4. Disclosure of Interest.
Section 2-230/dV2)iSanew provision that has been added k) exempt a Task Force member from
abstaining from participation in and voting on any matter before the Task Force to which the member has
been appointed in cases where the Task Force member may have a Substantial Interest in that matter.
5. Effect-of Writteln Opinion of the City Attorney.
Section 2-239.1 iSG new provision that has been added k} provide that conduct undertaken inreasonable
reliance upon a Written Opinion of the City Attorney that was requested by the person and provided within
15 business days Of that request is8n absolute defense to complaint that the conduct inquestion
constituted a violation Of the Ethics Code.
Division 2. Ethics Review Commission.
Creation and .
Section 2-24DiS amended 10 change the name of the "Ethics Review Committee" to the "Ethics Review
Commission" and to prohibit an Ethics Review Commission member from being 8 nnennbe[ of any Qh/
board or commission that the Ethics Review Commission has jurisdiction over.
2. Jurisdiction, Powers and Meetings.
Logname: 12ETBk.S C()I)E AMEND Page of
Section numbers in Division 2 are combined and re-numbered, with Section 2-241 addressing the
jurisdiction, powers and meetings of the Ethics Review Commission and Section 2-242 addressing the
role of the City Attorney. The City Attorney will continue to provide general guidance and assistance tothe
Ethics Review CnnnnniasiOn. but will not represent any individual before Ethics Review COnnnniseiOn. will
not represent the Ethics Review Commission with regard hJ any complaint that has been filed, and will not
assert a position to the Ethics Review Commission as to the sufficiency of a complaint that has been filed.
rhe City Attorney can testify to the Ethics Review Commission as to whether conduct was undertaken in
reliance upon @ City Attorney opinion only if called as a vvitnmaa by the person complained against.
Division 3.Hearing Officers
Appointments.
Division 3 is new. It amends Section 2-244 to address the appointments of hearing officers each year tn
hear appeals of determinations made by the Ethics Review Commission in the disposition of complaints.
Section 2-244 also sets out the terms and the criteria for selection of a hearing officer.
2. Jurisdiction and Powers.
Section 2-245 outlines the jurisdiction and powers of hearing officers to in the appellate process.
Division 4. Disposition of alleged violations; Hearings
Section 2-247io amended k} require the person filing the complaint tObe a resident of Fort Worth ora
non-resident that owns taxable ne8| property within the City |irniiS. This Section also maC@b|inhea the
nnininnunn criteria that are necessary for complaint to be sufficient and outlines the no|o of the City
Secretary regarding the acceptance of the complaint, thereby eliminating the need for a preliminary
hearing.
2. Lggal Counsel.
Section 2-248 provides for the retention of outside legal counsel, if requested, to represent a person
against whom an Ethics Code complaint has been filed 8S well aSk}advise the Ethics Review
Commission with respect to the complaint.
3. .
Section 2-251 is amended to establish the order and manner in which the Ethics Review Commission will
review a complaint from preliminary matters to final determinations following a full evidentiary hearing.
4. Sanctions.
Section 2-252is amended to state more clearly the level of sanctions that may be levied by the Ethics
Review COOnOnissiOO and to clarify the manner in which additional recommended disciplinary action Or
censures are handled.
Section 2-253 is amended to establish a streamlined and orderly process for appeals:
[ugzornc:l2E7HTCS CODE AMEND Page 3nf4
• Appeals are limited to assertions that the Ethics Review Commission committed a material error in
making a decision in the following instances: 1) the dismissal of a complaint by the Ethics Review
Commission on grounds that the complaint did not allege conduct that would be a violation of the
Ethics Code; 2) a dismissal of a complaint by the Ethics Review Commission on grounds that the
conduct complained against was undertaken in reliance upon a Written Opinion of the City Attorney;
or 3) a final determination by the Ethics Review Commission as to whether a violation of the Ethics
Code occurred, as alleged in the complaint.
• A hearing officer is appointed to hear all appeals.
• In considering an appeal, the hearing officer's review will be limited to the record, rather than being
a de novo evidentiary hearing. The standard of review is the substantial evidence rule.
• If the appeal is based on the dismissal of a complaint, and the hearing officer finds that the Ethics
Review Commission committed a material error in dismissing that complaint, the complaint will be
remanded to the Ethics Review Commission for further action. If the hearing officer finds that the
Ethics Review Commission did not commit a material error in dismissing the complaint, the decision
of the Ethics Review Commission is final.
• If the appeal is based on a final determination of the Ethics Review Commission as to whether a
violation of the Ethics Code occurred, as alleged in the complaint, the hearing officer's finding will
take the form of a recommendation to the City Council, and the City Council will make the final
decision, with one exception: If the Ethics Review Commission determines that a person did not
commit a violation of the Ethics Code, and the hearing officer finds that the Ethics Review
Commission did not commit a material error in reaching that conclusion, the decision of the Ethics
Review Commission is final.
FISCAL INFORMATION / CERTIFICATION:
The Financial Management Services Director certifies that this action will have no material effect on City
funds.
FUND CENTERS:
TO Fund /Account/Centers
CERTIFICATIONS:
FROM Fund /Account/Centers
Submitted for CitaC Manager's Office b Charles W. Daniels (7504)
Originating_De artment Head; Sarah J. Fullenwider (7606)
Additional Information Contact: Peter Vaky (7601)
-1111111 ..
Logname: 12ETHICS CODE AMEND Page 4 of 4