Cover photo: The city’s Ethics Review Commission is meeting virtually during the pandemic. | Image courtesy of the city of El Paso
Proposed amendments to the city’s ethics ordinance include restrictions for who can file a complaint and punishments for people who file complaints that are deemed to be frivolous — changes that are raising concern among some current and former city officials.
Among the key changes being recommended are to limit complaints being filed to only residents of El Paso and to ban anyone found to have filed a frivolous complaint from filing new complaints for up to four years.
“I don’t know where these recommendations are coming from. I don’t know the legal basis for a lot of them and they really just raised concerns,” city Rep. Alexsandra Annello said.
Annello said the City Council was briefed about the changes last February and she raised concerns about some of the recommendations at the time. She said the changes were presented again at the end of the year and were initially set to be voted on at the Jan. 5 meeting.
“It didn’t seem like the issues that I had were resolved at all, or even acknowledged,” Annello said, adding that the item was removed from the agenda for the first meeting of the year and will be revisited in February.
Mayor Oscar Leeser, who was sworn into office during the Jan. 5 meeting, declined to comment on the ethics ordinance, stating he would not discuss items on an agenda prior to them being discussed during City Council meetings.
City staff declined El Paso Matters request for an interview, or to answer questions about the proposed changes, because the item was postponed.
“It would be premature to discuss the proposed ordinance amendments at this time,”city spokeswoman Laura Cruz-Acosta said.
The Ethics Review Commission hears complaints about alleged violations of the city’s ethics ordinance by elected officials or city staff. The mayor and the eight City Council members each appoint a member, who are not paid.
The city’s current ethics ordinance states that the City Attorney’s Office would refer a complaint that may be frivolous to a panel of the Ethics Review Commission for dismissal. The ordinance also states that a sanction may be imposed, but does not clearly state what the sanction would be.
In the amended version, the city is proposing that the full Ethics Review Commission determine if a complaint was filed frivolously and ban the person from filing another complaint for two years. If the individual attempts to file another complaint within the two-year time frame, the person can be banned for an additional two years, according to the proposed amendment.
Former Ethics Review Commission Chair Stuart Schwartz, an attorney who served when multiple ethics complaints were filed against the city manager and several members of the City Council in 2016 and 2017, said the issue of frivolous complaints would not have reached the board.
“Frivolity isn’t really an issue before the commission. It never has been because if a complaint is frivolous, it’s never going to be accepted by the city attorney. It’ll be rejected or refused, whatever the term is — almost immediately — and therefore there’s not much time or effort spent that would require somebody to be sanctioned for filing a frivolous complaint,” Schwartz said.
He said one of his concerns with the proposed change is who would be responsible for determining whether a complaint was frivolously filed and what recourse someone has if they are sanctioned.
“What process is there to reverse that determination and effectively violate somebody’s First Amendment right to speak out?” Schwartz said.
Annello also had concerns about the sanctions and First Amendment rights.
“I understand that there are frivolous ethics complaints all the time, but I just don’t know legally if we can limit people’s individual interaction with their government,” Annello said.
Annello said she was also concerned about the criteria listed in the ordinance that may be used to determine whether a complaint is frivolous.
Those factors include the nature and type of any publicity surrounding the filing of the sworn
complaint and the degree of participation by the complainant in publicizing the fact that a sworn complaint was filed with the city; the existence and nature of any relationship between the respondent and the complainant before the complaint was filed; and any evidence that the complainant knew or reasonably should have known that the allegations in the complaint were groundless.
City Rep. Cassandra Hernandez said she also has concerns about some of the determining factors.
“I have stated before that the complainant should not be afraid to issue a complaint nor should alerting or publicity be a factor in deciding if it were frivolous or not,” Hernandez said. “Yes, I have been hit with a frivolous complaint before and the news was engaged, but through the media I was able to set the record straight. So I don’t believe that it should be a deciding factor.”
Hernandez said she is not opposed to sanctions because they could deter politically motivated complaints.
Sanctions throughout the state
Sanctions for frivolous complaints at the state level and in other Texas municipalities, if imposed, are typically monetary in nature.
The Texas Ethics Commission can impose a civil penalty of not more than $10,000 for the filing of a frivolous or bad-faith complaint. The state defines a frivolous complaint as one that is groundless and brought in bad faith or is groundless and brought for the purpose of harassment.
The commission may also determine that the complainant is liable for an amount equal to the greater amount of $10,000 or the amount of actual damages incurred by the respondent, including court costs and attorney fees, according to the statute.
“In my time with the commission we’ve never had to exercise that power,” said J.R. Johnson, general counsel for the Texas Ethics Commission. “We want to encourage Texans to bring legitimate violations of law to our attention, but we are also aware that some people may seek to file and publicize unsubstantiated bad-faith complaints before the allegations can be investigated. Penalties for filing frivolous complaints are designed to discourage that practice.”
Austin and Fort Worth do not mention frivolous complaints in their ethics ordinances. Dallas has a process for how frivolous complaints are addressed, but does not impose sanctions, according to the ordinance.
San Antonio’s ethics ordinance stipulates that the Ethics Review Board may impose a civil penalty of not more than $500 or impose attorneys’ fees incurred by the respondent of the frivolous complaint. The board may also refer the matter to a criminal investigation agency or prosecution entity for investigation of perjury.
In Galveston, a frivolous complaint is considered unlawful and punishable by a misdemeanor offense with a fine not to exceed $500.
Up for discussion
David Marcus, a certified public accountant currently serving as chair of the Ethics Review Commission, said he does not recall whether commissioners or city staff recommended the sanctions. He said the changes may be discussed at an upcoming commission meeting.
Marcus said sanctions were brought up as part of amendments to the ordinance not long after Dallas-based attorney Stuart Blaugrund filed multiple ethics complaints against former Mayor Dee Margo in June 2019.
“It’s probably very much a reflection of what we were talking about,” Marcus said.
The complaints alleged Margo had improper interest in a Downtown trust that manages and develops property and that he discussed city business on his personal email and did not provide those emails in accordance with a public information request.
Marcus said the Ethics Review Commission did not find a violation of alleged improper financial interests by Margo and did not have jurisdiction over allegations that Margo violated the Texas Public Information Act.
“It’s truly frustrating when you realize that you’re looking at a politically motivated complaint that really has no basis in fact, and it’s your time they’re wasting because we’re not doing anybody any good by doing this (we’re) not accomplishing anything,” Marcus said, adding it was a unanimous feeling on the commission at that time.
The ethics ordinance, as it is currently written, allows anyone to file a complaint if they believe that an elected official, city employee, board member or municipal judge have violated the city’s standards of conduct.
In the proposed changes the ordinance would only allow for residents of El Paso to file a complaint.
The process of updating the city’s ethics ordinance has taken at least four years after a variety of complaints were filed against the city manager and elected officials following multiple El Paso Times investigations of city government in 2016 and 2017.
Schwartz said members of the commission at the time saw a need to make changes to the outdated ordinance and took an active role in making recommendations aimed at both strengthening the ordinance and review process of complaints.
According to city documents, several of the originally proposed amendments were not included in the current recommendations. They include allowing the commission to review complaints that were dismissed by the city attorney and allowing the commission to select firms for outside legal counsel.
Schwartz said the commissioners also recommended that an appeal process be implemented for those found guilty of violating the ethics ordinance. That amendment is included in the current changes being proposed.
Author: Elida S. Perez – El Paso Matters
Elida S. Perez is a longtime community and investigative reporter. Her experience includes work as city government watchdog reporter for the El Paso Times, investigative reporter for El Paso Newspaper Tree and communities reporter with the Salem, Oregon, Statesman Journal.
Disclosures: David Marcus is a board member and financial supporter of El Paso Matters. Stuart Schwartz is a financial supporter of El Paso Matters.