No problem. It's Fort Worth.
Read the letter to the Fort Worth Mayor and council. Then show up, tomorrow. YOU are the only one that can save YOU.
UNDERSTANDING THE CODE OF ETHICS CHANGE
At the recent Fort Worth City Council meeting, the City Officials appear
to be in a rush to change the Code of Ethics. I was very disappointed
in the absolute lack of knowledge the City Council seemed to posses
regarding these changes on which they were voting at the December
4, 2010 meeting.
From the meeting, it was apparent the City Council wanted to rush the
change to the Code of Ethics Ordinance. But that shouldn't have
surprised me. The City Attorney addressed the Ethics Committee and
told them what the Mayor and City Council expected.
"Specifically, on August 19th, the council announced that
they definitively want the ability to appoint members to task
forces that have particular expertise in an area without those
members being subject to an automatic violation of the
ethics code simply because of their profession.
This was the directive from the former Mayor and Council at the time. I
had hoped the current Mayor and Council would have realized the
citizens expect more ethical behavior and not less.
At the December 4, 2010 Council meeting, the first of the comments
coming from the Council members, included, how the citizens were
confused about what the new Ordinance included and the confusion
was not on the part of the Council. The Council member insisted it
was a result of a news journal that printed half-truths, as the Ordinance
actually tightened things up according to that Councilperson. He then
explained that one example of what was tightened up, was how the
proposed Ordinance offered more protection for the Council and Board
members. The Council member failed to explain what was incorrect in
the news journal.
This Council member continued with his observations that in the Ethics
Code are many gray areas. Unfortunately, he is correct. The
Ordinance, as it is written is very cloudy and unclear in its meaning.
That is one of the many problems with the proposed Ordinance. The
Ordinance must be rewritten in a manner that is not gray, it must be
absolutely clear for the citizens to understand. An Ordinance is a law
that must be easily understood by all. When even the City Council
states it is gray, the Ordinance must really be confusing to many.
I have read what was written in the news journal he was speaking of,
and find the articles very accurate and not confusing. In fact, the
articles are amazingly correct.
It also appears the council member has not read enough of the Code
of Ethics and certainly doesn't understand its intent. In the preamble of
the Code of Ethics it explains what that intent is and why.
2-236 - Declaration of Policy
"The city council deems it advisable to enact this code of
ethics for all officers, employees and advisory board
members, whether elected or appointed, paid or unpaid, to
serve not only as a guide for official conduct of the city's
public servants, but also as a basis for discipline for those
who refuse to abide by its terms.
The Code of Ethics as it is written, indicates it is to protect the citizens
from improper actions of the City Council, employees and advisory
board members. It is not written with the idea of protecting the Council
members and board members from the citizens.
The City Council and Boards have a City Attorney for that purpose.
The Mayor also made the following observations about there being a
great deal of confusion.
I agree with the confusion, but it appears the City Council members are
the ones who do not know the true details.
She stated there was a great deal of citizen input.
I would question there being a great deal of citizen input on this matter,
as it appeared there are many citizens who were not aware of the
proceedings. If many citizens and neighborhood organizations are not
aware of a major Ordinance or policy change, shouldn't the city accept
some responsibility for that? Perhaps it wasn't publicized enough or in
the right places. Perhaps it was intentional.
The Mayor went on to say the following about the proposed Ordinance.
It doesn't mean they will meet behind closed doors.
The City will publically post these meetings and they will be subject to
Open Meeting requirements.
It has been said that all the meetings would not be subject to the Open
Meeting Act, is simply not true.
It clarifies when it is appropriate to appoint members, for short term
advisory only, Task Forces.
The truth is, no new "Advisory Only Committee" is required to meet
the Open Meeting Act requirements and the City's proposed Code has
no provision that requires it either.
The Code provides no clarification that explains when it is appropriate
to allow or require a committee or board to be called "advisory only" or
otherwise and what the distinctions must be. It refers to short term, but
it fails to explain how short term is defined. The Gas Drilling Task
Force and Air Quality Committee lasted over a year. I don't view that
short term and the City Attorney continues to insist they were "Advisory
Only".
The Mayor stated, "they have heard said, the City Attorney has the
power to give Absolute Immunity and that is not exactly true.
According to the new code there are provisions that require the
individuals follow the City Attorneys advice and receive it in writing.
Otherwise, the Ethics committee can still take it up."
At the beginning of the proposed Ordinance, Absolute Immunity is one
of the stated provisions. The new regulations of the Ordinance would
actually make the Absolute Immunity rule an unreasonable hurdle to
cross if one were filing a complaint. Additionally, if one files a complaint
when Absolute Immunity is the defense, it will most likely be dismissed
on its face due to the Absolute Immunity provision.
A horrible situation would arise if the advice the city Attorney provides
should be wrong. Not only will there not be a hearing to resolve the
issue, but the wrongdoer is allowed to continue the wrongdoing and
there is no recourse available to prevent them from doing it over and
over.
The attorney General has already provided an AG Opinion, "that a
City may regulate conflicts of interest involving City Council
members by adopting ordinance provisions that are not
inconsistent with Local Government Code chapter 171.
Thus, the city may not attempt to exempt its officers from
requirements imposed by Local Government Code chapter
171."
The Absolute Immunity provision is without a doubt, an
attempt to exempt its Officers from requirements imposed by
Local Code 171 and other State laws.
Additionally, there are various types of immunity recognized
in Law and Absolute Immunity has a legal meaning.
Absolute immunity means the official engaged in judicial, prosecutorial
or legislative acts within the scope of duty is absolutely immune not
only from liability but also from suit concerning the act. A valid claim of
this immunity is an absolute bar to the suit, and will result in dismissal of
the suit itself. No discovery or any other suit-related process is
permitted.
A defense Attorney would use this defense against any complaint filed.
When there is a Written Opinion that provides an Absolute Defense,
the complaint would automatically be dismissed regardless of what the
Ordinance states.
The Mayor also stated, "the change on Substantial Interest simply
supplements the State Statue and goes beyond what the State Ethics
require."
The City Attorney in their power point presentation "amended the
definition of Substantial Interest to be consistent with State law." There
is nothing in the Ordinance or that was said about going beyond State
Law, the City Attorney only said it was consistent with state law. In
other words, the new Ordinance actually ends up requiring less ethical
behavior of the public Officials than the current Ordinance.
The proposed Code of Ethics does not go beyond any provision
already provided by State Statute. The proposal regarding the ability of
the City Attorney to provide an Absolute Defense actually appears to
be an attempt to exempt Officers and committee members from
certain State Statues and would appear to be contrary to what the
Attorney General has stated in a legal Opinion.
An Attorney General Opinion basically carries the weight of law until it
is overturned in a court of law or rewritten. However, the City Officials
seem to downplay or ignore many Attorney General Opinions that
don't meet their needs.
On November 30th, I requested from the City Council, an explanation
or example of what benefit the proposed Code would offer the citizens.
There has been no Council Person willing or able to advise me of any
benefit to date.
The Mayor went on to say, "The Ethics Committee looked at other
Cities and these are standard practices in other large Cities."
The Ethics Committee did not look at any other City Ordinances.
The City Attorney advised the Ethics Committee they had looked at
other Cities and then "Cherry Picked" from certain other City
Ordinances. They also said that in many cases those City's Attorney
did not know where some of their Ordinances came from and in many
cases they had never applied them.
Our City Attorney advised the Council, That San Antonio and Dallas
had provisions in their Ordinance that granted immunity as a result of
their Ordinances.
Those two City Ordinances have additional provisions indicating, "that
other state and federal laws may apply" too. Absolute Immunity is not
a term they used in their Ordinance either. This is a case of "cherry
picking" only the part of other Ordinances the City Attorney wants to
meet their specific needs. It is much like taking "something out of
context". The Fort Worth Ordinance does not include other provisions
that should part of certain types of rule changes.
Mr. Danny Scarth provided his understanding of the Code change by
using the example of "having a friend who plays golf occasionally and
that person having an interest in golf, so should he be subject to a
violation if he votes on a rate change"? Mr. scarth then states his
opinion, saying, "That would be silly".
Mr. Scarth of all people should know about Ethics issues, but
apparently doesn't.
Taken from, 2010 Texas Conflict of Interest Laws Made Easy -
Office of the Attorney General
#8. What is the test for conflict of interest regarding a business entity?
State law provides a two-part test for ascertaining whether a local official has a
conflict of interest regarding a business entity that would prevent the official
from participating in a vote or discussion on that item. To determine whether a
conflict exists that would prevent that official’s participation, one should follow
the following two-step analysis:
Step one (substantial interest analysis): First, the official must determine if he or
she received more than 10 percent of his gross income in the previous year
from that business entity or if he or she owns 10 percent or more of the voting
stock or shares of the business entity or has some other substantial ownership
interest in the business entity. If the official has such an interest or a close
relative of the official has such an interest, the official must consider the second
part of the test for determining if a conflict of interest exists.
Step two (special economic effect analysis): The official must determine whether
the action that the local entity is considering would have a special economic
effect on the business entity that is distinguishable from its general effect on
the public. If it is determined that the official has a substantial interest in the
business entity and it is likely that the action would have a special economic
effect on the business entity that is distinguishable from its effect on the
general public, a conflict of interest would exist. If a conflict of interest exists,
the official is prevented from discussing or voting on an issue involving that
business entity.
There are certain thresholds to be met and are determined by law.
The City can write stricter requirements than required by State law, but
not less. Therefore if the golfer in question only has an interest in Golf
as indicated by Mr. Scarth, then by all means they should be allowed
to be on the advisory committee. On the other hand, if the interest
were financial, then the thresholds would be one of the determining
factors.
In my opinion, Mr. Scarth should be ashamed for deliberately trying to
mislead the citizens with this comment.
Virtually every issue the City Council addressed at the December 4,
2010 Council Meeting shows a complete lack of understanding of the
problems with the proposed Ordinance or even what it says.
The Ordinance must be rewritten in a manner that is not foggy as the
Council indicated and it must be easily understood by all to be
enforceable.
It will require individuals from both sides having input, for there to be a
reasonable Ordinance.
This Item will require time to get correct and it should be important to all
that it is correct this time.
This proposed Ordinance should be vetoed or at least delayed
Read the letter to the Fort Worth Mayor and council. Then show up, tomorrow. YOU are the only one that can save YOU.
UNDERSTANDING THE CODE OF ETHICS CHANGE
At the recent Fort Worth City Council meeting, the City Officials appear
to be in a rush to change the Code of Ethics. I was very disappointed
in the absolute lack of knowledge the City Council seemed to posses
regarding these changes on which they were voting at the December
4, 2010 meeting.
From the meeting, it was apparent the City Council wanted to rush the
change to the Code of Ethics Ordinance. But that shouldn't have
surprised me. The City Attorney addressed the Ethics Committee and
told them what the Mayor and City Council expected.
"Specifically, on August 19th, the council announced that
they definitively want the ability to appoint members to task
forces that have particular expertise in an area without those
members being subject to an automatic violation of the
ethics code simply because of their profession.
This was the directive from the former Mayor and Council at the time. I
had hoped the current Mayor and Council would have realized the
citizens expect more ethical behavior and not less.
At the December 4, 2010 Council meeting, the first of the comments
coming from the Council members, included, how the citizens were
confused about what the new Ordinance included and the confusion
was not on the part of the Council. The Council member insisted it
was a result of a news journal that printed half-truths, as the Ordinance
actually tightened things up according to that Councilperson. He then
explained that one example of what was tightened up, was how the
proposed Ordinance offered more protection for the Council and Board
members. The Council member failed to explain what was incorrect in
the news journal.
This Council member continued with his observations that in the Ethics
Code are many gray areas. Unfortunately, he is correct. The
Ordinance, as it is written is very cloudy and unclear in its meaning.
That is one of the many problems with the proposed Ordinance. The
Ordinance must be rewritten in a manner that is not gray, it must be
absolutely clear for the citizens to understand. An Ordinance is a law
that must be easily understood by all. When even the City Council
states it is gray, the Ordinance must really be confusing to many.
I have read what was written in the news journal he was speaking of,
and find the articles very accurate and not confusing. In fact, the
articles are amazingly correct.
It also appears the council member has not read enough of the Code
of Ethics and certainly doesn't understand its intent. In the preamble of
the Code of Ethics it explains what that intent is and why.
2-236 - Declaration of Policy
"The city council deems it advisable to enact this code of
ethics for all officers, employees and advisory board
members, whether elected or appointed, paid or unpaid, to
serve not only as a guide for official conduct of the city's
public servants, but also as a basis for discipline for those
who refuse to abide by its terms.
The Code of Ethics as it is written, indicates it is to protect the citizens
from improper actions of the City Council, employees and advisory
board members. It is not written with the idea of protecting the Council
members and board members from the citizens.
The City Council and Boards have a City Attorney for that purpose.
The Mayor also made the following observations about there being a
great deal of confusion.
I agree with the confusion, but it appears the City Council members are
the ones who do not know the true details.
She stated there was a great deal of citizen input.
I would question there being a great deal of citizen input on this matter,
as it appeared there are many citizens who were not aware of the
proceedings. If many citizens and neighborhood organizations are not
aware of a major Ordinance or policy change, shouldn't the city accept
some responsibility for that? Perhaps it wasn't publicized enough or in
the right places. Perhaps it was intentional.
The Mayor went on to say the following about the proposed Ordinance.
It doesn't mean they will meet behind closed doors.
The City will publically post these meetings and they will be subject to
Open Meeting requirements.
It has been said that all the meetings would not be subject to the Open
Meeting Act, is simply not true.
It clarifies when it is appropriate to appoint members, for short term
advisory only, Task Forces.
The truth is, no new "Advisory Only Committee" is required to meet
the Open Meeting Act requirements and the City's proposed Code has
no provision that requires it either.
The Code provides no clarification that explains when it is appropriate
to allow or require a committee or board to be called "advisory only" or
otherwise and what the distinctions must be. It refers to short term, but
it fails to explain how short term is defined. The Gas Drilling Task
Force and Air Quality Committee lasted over a year. I don't view that
short term and the City Attorney continues to insist they were "Advisory
Only".
The Mayor stated, "they have heard said, the City Attorney has the
power to give Absolute Immunity and that is not exactly true.
According to the new code there are provisions that require the
individuals follow the City Attorneys advice and receive it in writing.
Otherwise, the Ethics committee can still take it up."
At the beginning of the proposed Ordinance, Absolute Immunity is one
of the stated provisions. The new regulations of the Ordinance would
actually make the Absolute Immunity rule an unreasonable hurdle to
cross if one were filing a complaint. Additionally, if one files a complaint
when Absolute Immunity is the defense, it will most likely be dismissed
on its face due to the Absolute Immunity provision.
A horrible situation would arise if the advice the city Attorney provides
should be wrong. Not only will there not be a hearing to resolve the
issue, but the wrongdoer is allowed to continue the wrongdoing and
there is no recourse available to prevent them from doing it over and
over.
The attorney General has already provided an AG Opinion, "that a
City may regulate conflicts of interest involving City Council
members by adopting ordinance provisions that are not
inconsistent with Local Government Code chapter 171.
Thus, the city may not attempt to exempt its officers from
requirements imposed by Local Government Code chapter
171."
The Absolute Immunity provision is without a doubt, an
attempt to exempt its Officers from requirements imposed by
Local Code 171 and other State laws.
Additionally, there are various types of immunity recognized
in Law and Absolute Immunity has a legal meaning.
Absolute immunity means the official engaged in judicial, prosecutorial
or legislative acts within the scope of duty is absolutely immune not
only from liability but also from suit concerning the act. A valid claim of
this immunity is an absolute bar to the suit, and will result in dismissal of
the suit itself. No discovery or any other suit-related process is
permitted.
A defense Attorney would use this defense against any complaint filed.
When there is a Written Opinion that provides an Absolute Defense,
the complaint would automatically be dismissed regardless of what the
Ordinance states.
The Mayor also stated, "the change on Substantial Interest simply
supplements the State Statue and goes beyond what the State Ethics
require."
The City Attorney in their power point presentation "amended the
definition of Substantial Interest to be consistent with State law." There
is nothing in the Ordinance or that was said about going beyond State
Law, the City Attorney only said it was consistent with state law. In
other words, the new Ordinance actually ends up requiring less ethical
behavior of the public Officials than the current Ordinance.
The proposed Code of Ethics does not go beyond any provision
already provided by State Statute. The proposal regarding the ability of
the City Attorney to provide an Absolute Defense actually appears to
be an attempt to exempt Officers and committee members from
certain State Statues and would appear to be contrary to what the
Attorney General has stated in a legal Opinion.
An Attorney General Opinion basically carries the weight of law until it
is overturned in a court of law or rewritten. However, the City Officials
seem to downplay or ignore many Attorney General Opinions that
don't meet their needs.
On November 30th, I requested from the City Council, an explanation
or example of what benefit the proposed Code would offer the citizens.
There has been no Council Person willing or able to advise me of any
benefit to date.
The Mayor went on to say, "The Ethics Committee looked at other
Cities and these are standard practices in other large Cities."
The Ethics Committee did not look at any other City Ordinances.
The City Attorney advised the Ethics Committee they had looked at
other Cities and then "Cherry Picked" from certain other City
Ordinances. They also said that in many cases those City's Attorney
did not know where some of their Ordinances came from and in many
cases they had never applied them.
Our City Attorney advised the Council, That San Antonio and Dallas
had provisions in their Ordinance that granted immunity as a result of
their Ordinances.
Those two City Ordinances have additional provisions indicating, "that
other state and federal laws may apply" too. Absolute Immunity is not
a term they used in their Ordinance either. This is a case of "cherry
picking" only the part of other Ordinances the City Attorney wants to
meet their specific needs. It is much like taking "something out of
context". The Fort Worth Ordinance does not include other provisions
that should part of certain types of rule changes.
Mr. Danny Scarth provided his understanding of the Code change by
using the example of "having a friend who plays golf occasionally and
that person having an interest in golf, so should he be subject to a
violation if he votes on a rate change"? Mr. scarth then states his
opinion, saying, "That would be silly".
Mr. Scarth of all people should know about Ethics issues, but
apparently doesn't.
Taken from, 2010 Texas Conflict of Interest Laws Made Easy -
Office of the Attorney General
#8. What is the test for conflict of interest regarding a business entity?
State law provides a two-part test for ascertaining whether a local official has a
conflict of interest regarding a business entity that would prevent the official
from participating in a vote or discussion on that item. To determine whether a
conflict exists that would prevent that official’s participation, one should follow
the following two-step analysis:
Step one (substantial interest analysis): First, the official must determine if he or
she received more than 10 percent of his gross income in the previous year
from that business entity or if he or she owns 10 percent or more of the voting
stock or shares of the business entity or has some other substantial ownership
interest in the business entity. If the official has such an interest or a close
relative of the official has such an interest, the official must consider the second
part of the test for determining if a conflict of interest exists.
Step two (special economic effect analysis): The official must determine whether
the action that the local entity is considering would have a special economic
effect on the business entity that is distinguishable from its general effect on
the public. If it is determined that the official has a substantial interest in the
business entity and it is likely that the action would have a special economic
effect on the business entity that is distinguishable from its effect on the
general public, a conflict of interest would exist. If a conflict of interest exists,
the official is prevented from discussing or voting on an issue involving that
business entity.
There are certain thresholds to be met and are determined by law.
The City can write stricter requirements than required by State law, but
not less. Therefore if the golfer in question only has an interest in Golf
as indicated by Mr. Scarth, then by all means they should be allowed
to be on the advisory committee. On the other hand, if the interest
were financial, then the thresholds would be one of the determining
factors.
In my opinion, Mr. Scarth should be ashamed for deliberately trying to
mislead the citizens with this comment.
Virtually every issue the City Council addressed at the December 4,
2010 Council Meeting shows a complete lack of understanding of the
problems with the proposed Ordinance or even what it says.
The Ordinance must be rewritten in a manner that is not foggy as the
Council indicated and it must be easily understood by all to be
enforceable.
It will require individuals from both sides having input, for there to be a
reasonable Ordinance.
This Item will require time to get correct and it should be important to all
that it is correct this time.
This proposed Ordinance should be vetoed or at least delayed
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