Tuesday, May 22, 2018

The City Has Some Explaining To Do, Too

Yesterday, in response to the federal indictment for bribery of former Richardson mayor Laura (Maczka) Jordan, I explained and apologized for my endorsement of her for mayor in 2013. The City of Richardson itself (whoever the "City" might be) offered up its own response to the indictment. I'll let others judge my response. But in my opinion, the City's own response falls short of any hint that I might not be the only one with some explaining and apologizing to do.

The City of Richardson's "Statement on Indictment of Former Mayor", in full:
The City has been aware of this ongoing investigation and has been fully cooperating with the FBI in this matter.

In 2015, the City initiated its own related ethics investigation by an independent investigator in response to several citizen complaints regarding former Mayor Laura Maczka’s relationship and employment with Mark Jordan and his company. The City exercised the full extent of its power following existing law to conduct the investigation, which was specific to potential City and state ethics violations, finding none. As a non-criminal investigation, the independent investigator did not have subpoena powers and focused solely on alleged violations of specific City and state ethics laws based on the then-available evidence. After the ethics investigation was complete and the investigator’s report was publicly delivered to the City Council, the City then handed over all related materials to the Dallas County District Attorney’s Public Integrity Unit for further review.

Due to the ongoing investigation and pending legal proceedings, the City must defer any further public comment on this matter to the appropriate authorities.
Let's unpack that statement.

"The City exercised the full extent of its power following existing law to conduct the investigation, which was specific to potential City and state ethics violations, finding none."

The city's extensive code of ethics must surely cover bribery. The DOJ indictment alleges that "Jordan paid Maczka over $18,000 in cash and $40,000 by check, paid for over $24,000 in renovations to Maczka’s home, paid for Maczka’s luxury hotel stays and airfare upgrades." So the City saying "finding none" is an admission that the ethics violation investigation process has a fatal weakness.

"As a non-criminal investigation, the independent investigator did not have subpoena powers."

And there's the weakness. According to the indictment, Maczka denied accepting things of value from Jordan, things allegedly worth many tens of thousands of dollars. And lacking subpoena power, that's where the City left it. The City's investigation concluded, "While the facts in this case do not reveal a cognizable violation of the Code of Ethics, it is certainly understandable that the sum of the Mayor's actions would be viewed by the public as offending the overriding interest of the Code of Ethics." That word "cognizable" has significance that I did not fully appreciate at the time. Lost in the headlines of the time was the conclusion that the mayor's actions failed, as the Code of Ethics puts it, "to avoid even the appearance of impropriety." The Code of Ethics appears to be toothless on that front. Or the City Council declined to bite. An explanation on the former possibility is called for, and an apology on the latter fact might be called for.

"The City must defer any further public comment..."

In other words, the City intends to bury its own role in this matter, a role that fell short of serving the public good. While Laura (Maczka) Jordan is fighting her case in court, the City needs to take steps to ensure future ethics investigations have better success. It can't do that by going back to business as usual. A review is called for by an independent outside expert of the Code of Ethics, the Maczka investigation, and the City Council's non-reaction to that investigation.

That brings me to the subject that isn't mentioned in the City's statement. That is what this bribery case was all about, the Palisades development. Fifty years from now, long after Laura Maczka is a fading memory in Richardson's history, the city will still be living with what's being built on those 59 acres. It's been called an example of "improper town planning," a "substandard project" that looks like a "prison complex." Did Mayor Maczka unduly influence City staff, the City Manager, the Planning Commission, or the City Council to approve a development that did more to enrich her future husband, the developer, than it did to serve the city's long-term best interests? While the courts are determining if Mayor Maczka broke the law, the City needs to determine if its own planning process is flawed. A public commission to review that is called for. As one resident put it, "There must be a lasting lesson here other than don't be a crook."


mccalpin said...

In reading your response, I understand your concern and regret for endorsing Laura Maczka. However, I would not want the benefit of 20/20 hindsight to persuade us to want to use the wrong tool to solve a problem, like using a chainsaw to slice butter.

You state, "The city's extensive code of ethics must surely cover bribery." No, the city's Ethics ordinance (Richardson Code of Ordinances, Chapter 2, Article I - https://library.municode.com/tx/richardson/codes/code_of_ordinances?nodeId=PTIICOOR_CH2AD_ARTICOET) does not cover "bribery" per se. And why should it?

Bribery of a public official (whether offering or accepting) is a felony of the second degree according to the Texas Penal Code, Title 8, Chapter 36 (https://statutes.capitol.texas.gov/Docs/PE/htm/PE.36.htm) - see 36.02, the section aptly titled "Bribery". In the State of Texas, felonies are prosecuted by the state, not a municipality.

As best as I can tell, municipal courts prosecute only Class C misdemeanors, the lowest class of criminal conduct (above this from least to most serious are Class B and Class A misdemeanors, and felonies of the third degree, of the second degree, and of the first degree).

In fact, there is the Dallas County District Attorney’s Public Integrity Unit whose job is explicitly to “… [investigate] complaints from citizens and cases filed by law enforcement agencies pertaining to individuals and organizations that violate the law while operating within the public's trust.” This includes, of course, officeholders who appear to have violated the law, whether municipal or state.

I have doubts that it would be cost-effective or even legal for a municipality to subpoena records in the course of investigating a felony.

The real question to me (and I hope, to you) is why the indictment came from the federal government and not from Dallas County. As you noted, the City of Richardson, "...then handed over all related materials [of the ethics investigation] to the Dallas County District Attorney’s Public Integrity Unit for further review." What happened after that?

To understand the Public Integrity Unit better, perhaps you would like to read this Dallas Morning News article from 2010: https://www.dallasnews.com/news/news/2010/12/12/dallas-county-da_s-public-integrity-unit-rarely-investigates-officials

In terms of full disclosure, I met the original head of the Public Integrity Unit, Ted Steinke, many years ago in the course of a political campaign – my campaign manager was discussing possible election violations committed by others. At that point, as the News notes, the unit’s focus was only on election fraud, and I believe that Ted was committed to fighting it, although he was understandably wary of interfering with elections in the same way that the Texas Ethics Commission normally does not report on campaign violations until after the election has been completed.

But over the years, the unit’s scope has expanded to include a much broader range, including misbehavior by elected officials. So why isn’t it working?

I would ask this first before creating expensive and possibly overreaching powers under the Charter.

Mark Steger said...

Bill, thanks for the feedback. No one wants us "using a chainsaw to slice butter." We shouldn't characterize ideas that have no opportunity to arise due to the absence an honest, open, independent review of the Code of Ethics and our city planning process.

We disagree on whether the City's Code of Ethics covers bribery. The way I read it, it's all about bribery. I would quote, but there are just too many places.

I'm not recommending the Maczka case be prosecuted in municipal court. I'm not saying whether the state or federal officials should. By the way, you ask good questions about why the Dallas County District Attorney didn't pursue this. I don't know. That's another question suitable to be asked during a review of the City's ordinance.

Again, thanks for the feedback. Sincerely. It's already led to more discussion than the whole city council participated in during the three legally required bi-annual reviews of the city ordinance. Frankly, I consider that a dereliction of duty on the part of the City Council.