Monday, September 20, 2010

Code of Ethics - Round 2

Monday evening, the Richardson City Council held another work session to thrash out a code of ethics for council members. The least significant change is a title change from Code of Conduct to Code of Ethics. The most significant development is that the council appears to be firmly behind this second draft and will likely approve it on September 27, after another public hearing.

After the jump, the actions taken to address my own concerns.

The council's progress on this issue has been blogged about frequently on The Wheel, most recently here. I recommended several changes to the first draft, which are summarized below, along with the council's decision on each.

  • Statute of limitations
    My recommendation: Strike it.
    Council's action: Strike it, but add language clarifying that it only applies to sitting council members. Complaints will be pursued to closure whether or not the accused sitting council member leaves office.

  • Confidentiality clause
    My recommendation: Strike it.
    Council's action: Leave it as is. I have more to say on this below.

  • Independent ethics commission
    My recommendation: Don't create one.
    Council's action: Don't create one.

  • Range of coverage
    My recommendation: Don't extend to city employees.
    Council's action: Don't extend to city employees. A separate ethics policy for city employees, mirroring the one for the council, will be drafted and implemented by the city manager.

So, the council went along with three of my four recommendations. Not bad, right? I guess so, but I still feel they completely missed the point on the confidentiality clause and maybe even were led astray by group think and ambiguous advice by the city attorney. There's still one more public hearing and chance for the city council to get it right.

Again to his credit, Amir Omar was the council member to challenge the confidentiality clause, although it was more a meek request for clarification than a challenge. Omar wanted to know whether, with the current wording, a council member could consult with an outside attorney about perceived improper behavior during an executive session. Would that be a violation of the confidentiality clause? The city attorney, Pete Smith, said yes, but did it in a way that led everyone to think he said no. Smith said that revealing details would be a violation, but you could pose hypothetical situations to your attorney and ask for advice as long as you didn't reveal any confidential details. Omar thought this was good enough, saying his purpose was to dispel the concern that council members couldn't talk with their personal attorneys. Maybe Omar was satisfied with the city attorney's answer, but it just reinforced my own concern, it didn't dispel it at all.

John Murphy also missed the point, supporting the confidentiality clause by comparing it to a non-disclosure agreement used in business to protect trade secrets. In business, a non-disclosure agreement is narrowly drawn and specifies what confidential information is to be revealed. The council's proposed confidentiality clause is broadly defined to include *anything* said in executive session. In fact, it couldn't be any more broadly defined. A council member could mention in executive session that he sexually abused a child and the confidentiality clause would prevent anyone from reporting that to law enforcement. It's crazy that the council would let this blanket wording stand. It's crazy that the city attorney wouldn't warn them of the implications of such a broad wording.

By the way, city staffer Michelle Thames gave the council factually incorrect information when she informed them that the most significant punishment that the council could impose on a council member would be recommendation for recall by voters. That's not true. The council itself can expel a member for official misconduct.

Richardson, Texas, Code of Ordinances >> PART I - CHARTER >> ARTICLE 3. - CITY COUNCIL Section 3.06. - Council misconduct.

Willful violation of any provision of this Charter by any member of the council shall constitute official misconduct, and shall authorize the council, by a vote of two-thirds of the total membership, to expel such offending member from the council, if found guilty after a public hearing, and thereby create a vacancy in the place held by such member.

In her defense, the city staffer may be drawing a distinction between violating the Charter and violating the Code of Ethics. Still, she ought to have discussed this other power of expelling council members when briefing the council on the subject of punishment for violating the Code of Ethics.

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