RumorCheck Urges Addition to City of Richardson Proposed Code of Conduct The City Staff has, at the request of the City Council, prepared a sample Code of Conduct for City Council members and members of all boards and commissions, as part of the Council's 2009-2011 goals. We commend the City Council and City staff for moving forward with this necessary tool to assure the public of open and transparent government. Note that such openness works to the benefit of both the public and the officers who serve them, because not only is the public assured that an open process was followed to determine if a conflict of interest may exist, but officers are able to point to such process as evidence that the issue was properly and openly considered and determined. The current copy of the Code of Conduct has a number of items that need to be corrected or at least reviewed - after all, this copy is just a draft - and RumorCheck.org has forwarded its thoughts in writing to the City Attorney, City staff, and the City Council. However, the goal of this editorial is to argue for an addition to the proposed Code of Conduct, to make up for a missing section in the draft Code. This missing section is a lack of clear discussion of how Council members or members of boards and commissions are to deal with the situation in a transparent and open way where they believe but are not sure that they have a conflict of interest. There are three Sections in the draft Code that are relevant: Section 2-6 (as numbered in the draft) outlines the process by which a Council member or member of a board or commission handles the situation when he/she believes that he/she has a "substantial" interest in a matter pending before the body that he/she is a member of. Section 2-7 of the current draft outlines the process by which complaint by a citizen should be handled. Section 2-10 states that any officer may ask the City Attorney to issue an opinion. But no section fully addresses what may be the most common case: that a Council member or member of a board or commission may be concerned that he/she may have a conflict of interest in some matter, and not only wants a ruling but wants it in an open and transparent manner. This process would be similar to a complaint from a citizen as outlined in Section 2-7, but would be, in a sense, a tentative "complaint" or concern about one’s own potential behavior, and the process should be open in a similar way. In other words, there are three possible scenarios in the course of operations of the Council or a board or commission: the officer (of the Council or board or commission) believes that he/she has a substantial interest in a matter before the Council or board or commission, and abstains from any discussion or vote on the matter. the officer (of the Council or board or commission) knows that he/she has an interest in a matter before the Council or board or commission, but does not know if this interest meets the definition of "substantial" either in the letter or the spirit of the law. the officer (of the Council or board or commission) participates in the discussion and vote on the matter, either because the officer believes that he/she does not have a substantial interest in the matter, or wishes to conceal such substantial interest. It is a goal of this Code of Conduct not only to ensure that discussions and votes are free of unseemly influence, but to ensure that they are transparent to the public as well. Item #1 above is clear and transparent, because the officer will state at the time of the discussion and/or vote that he/she is withdrawing from participation (and why). Item #3 above forces transparency because the process of resolving the complaint by the public dictates openness. However, the draft Code does not clearly provide transparency for Item #2. Not only should there be a process described for how to handle the situation of uncertainty by the officer (which is in the draft Code in an abbreviated way at Section 2-10), but the openness and transparency that the public desires should also be built into the process. Note that the likelihood of Item #2 occurring is more common than one might think. For example, the largest property tax payer in the City of Richardson is AT&T. When it comes to a discussion of possible tax abatements or financial dealings with AT&T, how many Council members have a financial relationship with the company? Actually, all of them might, not only because they may or may not own AT&T stock directly, but all of them may own AT&T stock indirectly through mutual funds in retirement accounts. Obviously, it is highly unlikely that any reasonable person would think that a Council member owning 0.0001% of AT&T’s stock through a mutual fund would sway that member's judgment; yet, we hear calls for any financial relationship to be disclosed. Wouldn't it make much more sense than having such relationships (many less clear than this example) discovered years later to be the source of rumors and accusations, to have the Council member say the following just before the discussion begins? "Everyone, please note that I indirectly own a small amount of AT&T stock through a mutual fund; I have consulted with the City Attorney who assures me that this does not constitute a conflict under the law; and I am raising the point here to see if any of my fellow Council members have a problem with my relationship before I join you in discussion and voting on the matter." Recent Actual Examples As examples, there have appeared in the last year or so two occasions where a more open and transparent way of resolving such issues would have prevented unnecessary charges of 'conflict of interest' in the public space, one involving Mayor Gary Slagel and the second involving former City Council candidate Chris Davis. RumorCheck recently wrote about the accusations against Mayor Slagel that he had a conflict of interest concerning discussion and votes relating to the Galatyn Overpass because of a relationship with Fossil founder and chairman Tom Kartsotis. The story is too involved to repeat here (mainly because it's considerably more complicated than residents were led to believe); you can read the full story at Mayor Slagel and Fossil. However, because the City at that point had no Code of Conduct for determining possible conflicts of interest, he did what seemed reasonable: he consulted the City Attorney. Note that in doing so, Mayor Slagel did exactly what the draft Code of Conduct calls for (in Section 2-10). But such actions, while correctly handling the issue of uncertainty, did not satisfy the public's desire to know that the process was open and transparent. If there had been a Code of Conduct at the time containing the additional section outlined below, then Mayor Slagel would have not only asked the City Attorney to render an opinion, but would have also brought the request and opinion forward to the Council before any discussion or vote, and if any Council member objected to the City Attorney's opinion, there could have been a vote to formally determine if the Mayor’s interest should be classified as "substantial". In such case, rather than the accusation of conflict of interest appearing years later by anonymous flyer in the middle of a bond campaign, the matter would have been raised and disposed of years before, one way or the other. Neighborhood leader and former City Council candidate Chris Davis (candidate for Place 3 in 2009) found herself in a similar situation when she was accused of having a conflict of interest by fellow candidate Sheryl Miller during the 2009 City Council election. At the time of the campaign, Ms. Davis was an executive assistant to Dallas County Commissioner Maurine Dickey. The potential problem was that Ms. Dickey's District 1 on the County Commissioners Court and Place 3 of the Richardson City Council completely overlap, setting up the situation where an employee of an officeholder in one governmental jurisdiction would be running against (and presumably criticizing) an officeholder in another governmental jurisdiction, covering the same geographic area. In addition, had Ms. Davis been elected to Place 3, there would have been further complications in that she would have had to deal with repeated instances where the City and the County were interacting on matters. RumorCheck cannot find a formal conflict of interest policy for Dallas County, but if the County had one similar to the one proposed for Richardson, then Ms. Davis would have brought up this issue with whatever legal advisor the County's policy specified, or brought this issue up formally with her superior, Commissioner Dickey, or the entire Commissioners Court or whatever the body provided for in the County's Code of Conduct (note that while Richardson's Code of Conduct does not cover employees, other Codes do). Without a doubt, the proper authority would have determined in an open and transparent manner that Ms. Davis had no conflict in the election and would lay out any limitations in her behavior should she be elected. Thus, when challenged at a candidates' forum at the outset of the campaign about a potential conflict of interest, Ms. Davis could have immediately and permanently disposed of the issue by pointing to the results of the County process that she followed. Note that in neither case did Mr. Slagel or Ms. Davis have an actual conflict of interest in a legal sense; had they also had available to them a process that would have openly and transparently showed the determination of “no conflict”, both they and the public would have benefited from being able to dismiss such accusations at the time they were raised.   Also note that there is no presumption of guilt in the case of Item #2; the officer simply wants to know in advance in a way accessible to the public if the relationship that the officer has with a party to the matter to be considered should be determined a “conflict of interest”. Realizing this fact should make it considerably easier for officers to bring such issues forward. Potential new section The following would be a potential new section describing the process by which a Council member or board member brings a potential case of a conflict of interest forward (as opposed to a "substantial" conflict as described in Section 2-6). Note that the numbering in the draft Code will be updated in any case. Sec. 2-6a. Disclosure of a possible interest. (a)    When a Council member or member of a board or commission is aware that he/she has an interest in a matter before the body, board, commission, corporation or committee of which the officer is a member, but does not believe that the interest rises to the level of a "substantial" interest as defined in Section 2-3, then the officer is required to follow the subsequent steps: (b)    The officer will file a written report with the City Attorney describing the interest in the matter, along with enough detail to help the City Attorney review whether the interest is substantial. (c)    The City Attorney shall submit a written report to the City Council as soon as possible but not later than seven (7) business days after the receipt of the report from the officer, unless an extension is granted by a majority of other Council or board members. The City Attorney may contact the officer, interview witnesses and examine any documents necessary for the report. Such report shall be comprehensive and explain in detail all facts, findings, and conclusions in support of the City Attorney's opinion as to whether or not this situation represents a substantial interest, as defined in Section 2-3. (d)    If the City Attorney determines that the officer's interest in the matter is substantial, then the City Attorney will submit a written report stating such a conclusion both to the officer and the Council, board, or commission in question, with the direction that the officer should abstain from any discussion or vote on the matter in question. (e)    If the City Attorney determines that the officer's interest in the matter is not substantial, then the City Attorney will submit a written report stating such a conclusion both to the officer and the Council, board, or commission in question. However, if two (2) or more members of the Council, board, or commission wish the Council, board, or commission wish to review the determination by the City Attorney, these members can call for a regular or special meeting to discuss the original report from the officer, the written report from the City Attorney, and any other matters related to this matter. If a majority of the Council, board, or commission votes to hold that the officer's interest is indeed substantial, then the officer shall refrain from any discussion or voting on the matter. (f)    If a board or commission votes to hold per Section 2-6a(e) that the officer's interest is substantial, the officer may appeal this ruling to the City Council, where a majority of Council members shall determine the issue. If it is the City Council that votes to hold per Section 2-6a(e) that the officer’s interest is substantial, a majority of Council members shall determine the issue, and there is no appeal. William J. 'Bill' McCalpin Richardson, Texas