1 AGENDA 2 CHARTER REVIEW COMMITTEE 3 March 1, 2017 4 5 After determining that a quorum was present, the City of Denton Charter Review Committee of 6 the City of Denton, Texas convened in a meeting on Wednesday, March 1, 2017 at 6:00 p.m. in 7 the City Council Work Session Room, 215 E. McKinney Street, Denton, Texas at which time the 8 following items were considered: 9 10 Present: Dr. Jim Alexander, Dr. Bob Bland, Erin Clegg, Kyle Eaton, Sheryl English, 11 Monica Glenn, Herbert Holl, Colette Johnson, Ron Johnson, Dr. Patrice Lyke, Joe 12 Mulroy, Dr. Annetta Ramsay, Marty Rivers, Prudence Sanchez, Steve Sullivan, 13 Jorge Urbina, Michael Upshaw, David Zoltner. 14 15 Absent: Billy Cheek, Phil Gallivan, Stu Moorhead 16 17 Staff: Vernell Dooley, Jr., Robin Fox, John Knight, Bryan Langley, Aaron Leal, Kelly 18 Campbell 19 20 21 Mulroy called the meeting to order at 6:00 p.m. 22 23 Mulroy – We are going to be recorded tonight, so of all times please don’t cross talk because they 24 are not going to be able to capture. When we get into the presentation in the Q and A, be patient, 25 we will have time for everyone to have questions and get an answer. 26 27 Regular Meeting 28 29 1. Public Comment. (5 Minutes) 30 31 Mulroy – Is there anyone from the public here and wishes to speak? 32 33 No one requested to speak. 34 35 2. Housekeeping. 36 37 A. Consider approval of the February 15, 2017 Charter Review Committee Meeting Minutes. 38 39 English motioned, and Sullivan seconded to approve the minutes. Motion passed. 40 41 3. Receive an ethics presentation from Alan Bojorquez (Texas Center for Municipal Ethics), hold 42 a discussion and provide direction to City Staff. (3 Hours) 43 44 Alexander – I was a little skeptical that we would be able to pull this off to have an expert in to be 45 with us tonight. Joe was insistent that we would be able to do it. With a lot of help from staff, 46 we’ve been able to do this as a committee. We met within about five days or so after the last

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1 meeting. We reviewed materials submitted by applicants for the position. We reached a 2 unanimous agreement that we had an excellent choice in the gentleman who will be speaking in a 3 moment. He represents some significant experience in the field of municipal law, especially as it 4 relates to ethics. I particularly like the fact that his academic background is not only a law degree 5 but also included with that law degree, a master’s degree in public administration from Texas Tech. 6 It is with great pleasure I present to you, Mr. Alan Bojorquez. 7 8 Mulroy - Special thanks to Jim Alexander, Billy Cheek and David Zoltner for getting this put 9 together so quickly. 10 11 Alexander – Thanks, also, to the staff who helped make this happen. It worked out well. 12 13 Bojorquez – Thank you. I am Alan Bojorquez and I have some prepared materials that we’ll go 14 through and then we’ll open it up to a question and answer period. The prepared materials are 15 designed to provide you with the basic overview of state ethics laws. I’ve gathered those that the 16 State of Texas has compiled that are most commonly brought up in the municipal context and will 17 run through those to try to give you a working understanding of those laws but also to try and 18 dispel some of the misrepresentations or misunderstandings about what they may or may not do. 19 And then we’ll transition into the topic of ethics, ethic ordinances, your Charter and what this 20 committee would like to recommend to the Council in terms of what to do with the Charter. You 21 have your handouts to take notes and we also have basic slides to provide us with some structure 22 and some organization. But certainly if you’ve got a question regarding a slide feel free to stop 23 me and we can discuss it for a bit. 24 25 We start with the Charge, what the City Council actually instructed this Charter Review Committee 26 to do. You were not charged specifically by the City Council to write an ethics ordinance or to 27 write an ethics provision for the Charter, but to evaluate what you think needs to be done with the 28 ethics provisions in your Charter. I know that Charge has led to a lot of possibilities and we’ll 29 actually discuss what some of those possibilities are toward the end. But looking at what the 30 Council has asked us to do, we’ll begin from there. 31 32 Looking at the Charter, the first provision is 14.05, a basic Nepotism provision. Looks very similar 33 to the 572 provision in State Law in terms of a prohibition on the hiring of relatives within certain 34 degrees, by blood, by marriage or by adoption. One aspect that the Charter provision in Denton 35 provides is that it actually applies it to department heads as well as to the City Council. Under 36 State Law, the City’s home rule charter delegates hiring/firing authority to the City Manager, then 37 the State Law Nepotism rule does not apply. Your Charter goes a little bit beyond State Law in 38 that regard and applies it to department heads regarding employees they hire for that department. 39 Much like State Law, it also has an exemption for pre-existing personnel, those employees that 40 were there before someone got elected to Council or before that department head was named. 41 42 The second provision in your Charter that you’re going to have to evaluate is one entitled Personal 43 Interest. It may otherwise be named a Conflict of Interest, which is the title that we give to State 44 Law. It applies to a member of a board and commission which is clearly going through the City 45 Council, it is one that includes P&Z and other such boards and commissions. It defines a substantial 46 interest in the way it is defined in State Statute. That definition is tied to money. Do you get

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1 income? Do you own stock? Do you own real estate? Then it goes on to say you must comply 2 with 171. What does that mean? You must abstain from voting under your Charter and file an 3 affidavit. An affidavit is a public declaration of this interest. A document that’s filed with the 4 City Secretary’s office and thus is available for anybody who requests it under the Open Records 5 Act. An interesting twist, yours actually says “voting.” If you read state statute, we’ll get to it 6 later on, it talks about participation. Participation is broader than voting. It includes discussion, 7 deliberations and so if you were to enforce that, because of reference to 171, I’d take the broader 8 interpretation of 171, but that’s just a couple of nuance points about your Charter. So those are 9 some things you’ve been asked to look at. Are they enough? Are they too much? Do we need 10 them? Do we need something else? That’s the point of today’s meeting. Let’s have a look at 11 State Law. 12 13 The notion as reflected in the Constitution of the State that says that by accepting a second position, 14 you automatically forfeit your first position. Now what does that mean? It looks only at public 15 offices of emolument. What does that mean? In a public office, you have to exercise a sovereign 16 function of government. You’re not just stamping, filing, processing. You’re exercising some 17 discretion in your position. The second part is you get paid. If you’re not getting paid, this rule 18 does not apply. There are lots of exceptions like so many provisions in our State Constitution, 19 there’s the rule and then there’s page after page after page of the exceptions to the exceptions of 20 the rule. 21 22 Next is Incompatibility. This one is not actually statutory, it’s common law. So this is something 23 where a judge will decide on a case by case basis. It depends on facts; there are many, many 24 attorney general opinions on this. Incompatibility is essentially saying that you can’t be your own 25 boss. So if you were to have the City Manager over the City of Denton, which you don’t have, but 26 if you were, you couldn’t place a City Council member to be City Manager, they couldn’t both be 27 City Manager and be on the City Council because they’d be their own boss. That’s incompatibility. 28 The more complicated versions of incompatibility is that no one can serve two masters at the same 29 time. Can you be superintendent of Denton ISD and be on the City Council? No. Not because 30 City Council and School Board Trustees are always fighting, sometimes they do. Sometimes they 31 get along really well. They are always contracting with each other, co-sponsoring programs. We’ll 32 own the swimming pool, but you operate the swimming pool. They are very, very intertwined at 33 times. So you couldn’t be a superintendent at the school and be on the City Council. But you can 34 be a school teacher with the ISD and be on the City Council. You couldn’t be Chief of a Volunteer 35 Fire Department and sit on City Council. But you can be Assistant Chief or Treasurer. How would 36 I know? Because some Attorney General has written that opinion and they give lots of advisory 37 opinions in that regard. So a conflict of duties, a conflict of loyalties, you know it when you see 38 it; you know it when you smell it. That’s what this entire body of incompatibility is about. It gets 39 really, really intricate with some positions. Can you be an emergency services director for a county 40 when some of the money you spend, your salaries support it, by city contracts but also by city tax 41 payers, and also be named to the City Council? So emergency services district manager for that 42 county but also on a city in that county. Well, there’s no AG opinion on that. So it’s a case by 43 case analysis and of course the risk is, if you go to trial and you’re bound to have incompatibility, 44 kind of like the resign to run, by accepting that second position, you are booted out of the first one. 45 The one you are booted out of is your paid position. Get your own lawyer and have them give you

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1 their opinion, on their letterhead, on whether or not you can serve in these two different positions 2 at the same time for risk of violating the incompatibility rule. 3 4 Public Disclosures. This is what we see with increasing amounts in Austin. Legislature has shown 5 an increasing interest in causing city officials, or local governments to disclose more information 6 and more paperwork regarding your own dealings. If a vendor comes in and wants a contract, they 7 have to disclose along with their portfolio whether or not they have any business relationships or 8 family relationships with City Council. If you have contracts over certain sizes, now the City and 9 the vendors have to submit information. More and more of those disclosure forms are being 10 required. The notion is, if we disclose all this information, it gets put up on the website, at the 11 state agencies, Texas Ethics Commission, or the City Secretary posts it here at City Hall or on our 12 website. Voters will have access to it, then they can judge us more thoroughly based on our 13 relationships, our money and those sorts of things. There’s no real penalty if you fail to turn in 14 these things, they have to give you a warning to give you a chance to go and submit them. More 15 ethics being viewed as more transparency. 16 17 And now we transition to the Penal Code which is not the only set of criminal statutes we have in 18 Texas, the law is spread all over the place, but the Penal Code is an obvious place to look. Whether 19 you view this as ethics or not, it’s swept under that ethics umbrella. The first one is good old 20 fashion bribery. Example is a law firm wanting a contract with the City, bribing officials. Other 21 examples are not just cities and law firms. School Board members take bribes from insurance 22 companies. Bribery is criminal, accepting, soliciting any offer of money, anything with value to 23 entice you to do something or not to do something. To thwart the execution of an ordinance or a 24 City policy or to push a policy, contract or ordinance someone’s way. Good old fashion bribery 25 is alive here in Texas. Coercion, a threat to harm, expose, ridicule someone; coercion of a public 26 official to try and convince them to do something; coercion of a voter, the three different aspects 27 of coercion in Texas. You are not allowed to accept honorariums if given because of your public 28 position. Members of the legislature getting big, nice honorariums for speaking at conferences, 29 but it’s an insurance conference, and he’s an insurance agent asked to speak as an insurance agent, 30 not because he’s a state representative. If you follow those lines, you can see it sometimes. 31 Transportation and lodging is ok for speaking at the events. There is an exception for gifts and 32 awards and mementos if they are of de minimis value. Such a small thing as a token, not really 33 worth counting. If you’re unsure whether it really is de minimis, figure out what it costs. If it is 34 more than $50, you probably shouldn’t take it. So if it is a plaque, vase of flowers, gift basket, 35 fruit, that is fine. If it is over $50 you may have an issue. As public officials, we can accept gifts 36 of transportation and/or lodging, dinners and events, as long as the people paying are along for the 37 “ride.” Example - a public official taking a trip to Arlington to see Dallas Cowboys. No disclosure 38 required, no keeping a record. Is it ethical? Nothing written about it. Voters would be upset about 39 a scenario like this, media would love to take off on it. Was it right? It’s up to the person. Why 40 is this an exception? The rule is the way it is because the legislature avails themselves of these 41 sorts of perks of office all the time. It is unlikely they are going to prohibit these types of things. 42 They work hard, it’s a part-time job and if you can’t enjoy an occasional perk, what’s the point? 43 44 Misuse of information is a crime under the Penal Code; to use information for your benefit, the 45 benefit of your friends and/or family, if you came across that information only because of your 46 relationship to City Hall.

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1 Abuse of Office comes up often. 39.02 of the Penal Code - You intend to obtain a benefit that’s 2 unavailable to the general public or to harm or defraud somebody, otherwise than the general 3 public, comes down to abuse of office. This is one of the more common ones seen that involves 4 the Texas Rangers. When interviewed by the Texas Rangers for abuse of office, it is considered a 5 very serious offense. If they are using government property, government money, government 6 services, personnel in ways the general public would not allow and is not pursuant to a City policy, 7 practice or procedure. Or using the weight of their office to try to harm someone. Not just the 8 usual code enforcement or action pursuant to City code of ordinances, this is one that will get you 9 investigated. 10 11 This is a quick run through of most of the laws that come up. The AG’s handbook has been around 12 for 18-19 years; three or four different AG’s have touched it. It gives the pitfalls for the unwary, 13 some of the more common ethics rules. Those are the highlights I just covered. 14 15 Now we are transitioning into the ones that affect you, the City of Denton and your Charter. 16 Looking at 171, which your Charter references, you’re talking about finances and real estate. So 17 often is the case, where after or during a council meeting, I’m questioned about conflicts of interest. 18 I won’t discuss with reporters. What they are usually asking about, it doesn’t “smell” right to 19 them. The relationship a city councilman has doesn’t feel right. The relationship this department 20 has to this contract just doesn’t look right. Isn’t that a conflict of interest? Example - A city out 21 west where the City Attorney is accused of conflict of interest, when the boss is the City Council 22 you should not be advising the Council on this particular conflict. You have to look and see what 23 the rule is. In Texas we no longer have common law conflict of interest. A judge and jury used 24 to decide, on a case by case basis if this was a conflict of interest or not. When the legislature 25 adopted 171, they expressly repealed and preempted all that previous body of law. It is no longer 26 precedent in Texas for defining a conflict of interest under State Law. As you’ll see, it’s tied to 27 money. How much of your income? How much stock? What’s the fair market value? Is it real 28 estate? If you have these thresholds, they will trigger 171 of the local government code. Does this 29 law prevent conflicts of interest? Not usually. What it does is to take the transaction out of the 30 shadows and brings it out into the open. First by requiring the member of City Council or the P&Z 31 member that has a conflict of interest to declare that interest in writing in an affidavit that’s filed 32 with the City Secretary and is made a public records. The second part requires that official to 33 abstain from participation. This has been defined elsewhere as voting and discussing, deliberating 34 at the dais and participating in the voting. The question most often on 171, and the rule seems 35 pretty straight forward, but I’m often asked “if I step down from the dais can I still speak at the 36 podium as a citizen, as a property owner? I don’t advise you, but the city as an entity. So if you 37 are going to risk violating this rule, you need to own that yourself, and may want to have your own 38 attorney advise you. But since we’re here, I think by accepting a position as a P&Z member or 39 maybe with Parks and Recreation, or maybe another board or commission, or utilities commission, 40 by accepting a seat on the City Council, you are giving up some of your rights that a normal citizen 41 would have. For sure the Open Meetings Act and the Open Records Act say so. By trading in 42 your work at City Hall, you are agreeing to show your emails most of the time, you are agreeing 43 you will only talk about public business with a quorum in certain settings. You don’t have the 44 exact same rights that a citizen walking down the street would have. And this is one of them. I 45 would say no, it is not a good idea to speak from the podium as a citizen, a voter, or as a property

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1 owner. If someone needs to advocate your position, ask your spouse, best friend, or a lawyer friend 2 to do so. You go get a cup of coffee. 3 4 The conflict of interest statute, the biggest, most commonly looked at ethics statute in the state and 5 it’s tied to money. Is that how you define conflict of interest? 6 7 Example – What do you do when the entire Mayor and City Council all attend the same church, 8 and they lease property to the church, for a $1 a year? Is this a conflict of interest? Nothing against 9 it in the law. Example – Wimberly TX, became a city in 2000, were incorporated. The mayor 10 was female, all councilmen were men, all part of the Lions club. The mayor is invited to speak at 11 the Lion’s club, with all of councilmen there, and speaking about public business. It’s not an open 12 meeting. Lots of problems. Mayor membership in an organization is not enough to create a 13 conflict of interest. There are cities that have contracts with Lions clubs, or other groups for use 14 of parking lots or services or for those sorts of things. Chambers of commerce and other 15 organizations, very common for cities to have contractual relationships. Mere membership with 16 an organization does not trigger a conflict of interest under State Law, it is only dollars that will 17 do that. 18 19 Regarding the rest of 171, every member of the board with a conflict will file an affidavit, they 20 cannot participate in the matter any further, unless the majority of that board has a conflict. So if 21 it is zoning decision and it effects most of the city council members or all of the board members, 22 and they declare their conflict with an affidavit, now they can go on and have the discussion and 23 vote, even though they all know they have a conflict. There are rules there to keep them from 24 paralyzing the governing body. At some point they have to take action and if they take action 25 when they had other alternatives that were not conflicts, now the politics kicks in. There will be 26 accountability at the ballot box. This law doesn’t prevent the transaction from going through. 27 28 Example – Mayor owns the only electrician shop or the only auto shop in town. Is the police 29 department or public works department going to haul away broken vehicles for maintenance 30 30 miles down the road? Or are they going to contract with the mayor’s garage to fix things? As 31 long as the mayor declares that interest in an affidavit and abstains from participation, they can 32 vote to give the mayor whatever contract he wants for that service. It really is in the public’s 33 interest to do that sort of an arrangement. They just have to go over and above any transparency 34 to make sure the citizens/voters know why they are doing this, and why it is a good idea; that it is 35 not really shady self-dealing. But there are quite a few cities that would have ethics ordinances 36 that would step in where State Law does not and prevent that transaction from going through. 37 38 Eaton – Is income, is that self-reported? 39 40 Bojorquez – It’s your tax return. It’s a percentage of your reportable income. 41 42 Example – A town near Austin had a vote on a variance request. This particular town was so 43 small, the City Council can double as the Board of Adjustment. 44 Real Estate - Emails were flooding in demanding the City Councilman abstain as a conflict of 45 interest because he was a realtor and the company he worked for was managing this project, 46 pushing the variance through. When it came to it, he read a statement to the public. He is a realtor,

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1 he does work for the company that’s pushing for the variance. I’m an independent contractor, I 2 don’t represent this project, I will not get any commission from this project, I don’t get bonuses 3 from the company, all of the folks who voted for me knew I was a real estate agent, they wanted 4 to have someone who understood real estate on the council, that’s me, so I am not abstaining. I 5 filed an affidavit just to do that, but I am not abstaining from this, I’m voting on this variance. I 6 applauded this guy, in my mind, as a City Attorney, this what you hope someone would do, know 7 the rules, apply a position and don’t look back. 8 9 There’s a second conflict of interests provision of Texas Law that is just for plats. It’s also in plat 10 of P&Z and plat of City Council. If you look at the thresholds, they look pretty similar. It’s in the 11 platting statute and specific for the approval of plats, amendment plats, modifying plats, file 12 affidavit and abstain. Those are the two Texas Statutes on Conflict of Interest. 14.04 is Denton’s 13 statute, which requires everyone to follow 171, which mentions participation. 14 15 Mulroy – On the prior slide, about Plats, how do you determine the 10% amount and it’s off the 16 tax return? That’s fairly finite, here you’ve got some fair market value. What is the elasticity of 17 that term fair market value in business? Or is there a tangible milestone or bench mark we can tag 18 onto it today? 19 20 Bojorquez – It is very elastic. I don’t know of a bench mark for that. It goes to Mr. Eaton’s point 21 about being self-reporting. I’m always cautioning city officials and though I’m not your lawyer, 22 but I would caution you to tread lightly on this and error on the side of caution because of the 23 criminal penalties that come with it. Those are unique to the person. It’s not the entity. Is voting 24 worth being investigated? Worth having a grand jury compiled on your behalf? 25 26 Sullivan – You’ve got 10% of fair market value of business and also $500,000 of fair market value. 27 Isn’t that in conflict? 28 29 Bojorquez – It’s whichever is lower. 30 31 Eaton – You mentioned something about filing the affidavit. Once you file the affidavit, are you 32 done with the issue? 33 34 Bojorquez – You file the affidavit, which is in effect, putting the world on notice that you own this 35 or you invested in this and the issue is pending before the city. Once you’ve done that there is no 36 more action you are required to do. Instead it is a prohibition on action, you’re not allowed to 37 deliberate, not allowed to vote. 38 39 Eaton – Can you pull that affidavit at a later time? 40 41 Bojorquez – No, it’s a public record forever. I’ve never seen a case that talks about having to refile 42 an affidavit if the same issue comes up the next year or the next year. I don’t believe there’s an 43 obligation to refile if nothing has changed. 44 Upshaw – The $2,500 in land, is that the value of the land or the total value of the land? 45

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1 Bojorquez – If your stake in it is at least $2,500, then you need to file an affidavit and abstain from 2 participation. 3 4 Rivers – Is that the subject property, or the land next door? 5 6 Bojorquez – It is the subject property. 7 8 Rivers – So if you own the land next door and that’s going to increase in value? 9 10 Bojorquez – Then you are back to this one (conflict of interest, under substantial interest). This 11 one’s still there. There’s no indication that the legislature will dove tale these two together. They 12 were written into the Act at separate times, but it’s still there. For many years, the Texas Attorney 13 General’s Office will publish a book. The name keeps changing, but it is basically this material. 14 For a decade or more, there was material in the AG’s book on ethics that said if you own property 15 within 200 feet of a piece of property where the city is taking action, platting, zoning, etc., then 16 you had a conflict of interest under 171. You need to file an affidavit, you need to abstain. For 17 years we were asking where the 200 foot rule comes from. 18 19 Nepotism – State Law 573 of the Government Code gives us our Nepotism Statute. The notion 20 being that we should not be bestowing patronage on our relatives. This rule applies to the mayor 21 and council and their families within two degrees if it’s by affinity. The way you calculate that is 22 to count the steps. I am related to my sister by two degrees. From me to my parents is one step, 23 from my parents to my sister is two steps. This applies again to dollars. If they are a part-time or 24 full-time employee it doesn’t matter, this rule applies. If they are an independent contractor, that’s 25 not an employee. If they are a volunteer, that is not an employee, the rule does not apply. This 26 rule does not apply to smaller towns/cities. If the voters elect relatives, it is their choice. If the 27 Charter gives the city manager hiring authority, then this does not apply to employees of the city 28 to trace their employment back to the city manager. Your Charter provision Nepotism looks very 29 similar, except it goes a little bit beyond State Law and adds that department heads language. 30 31 Do we need to take a break? We are about to transition away from the State Law discussion into 32 the next phase. 33 34 Mulroy – Let’s continue. 35 36 English – In regards to Nepotism, if that does happen, even though it’s not in our Charter, what is 37 the typical recourse? 38 39 Bojorquez – The typical recourse is they are fired. If they weren’t here for a pre-existing period, 40 then they are fired. This comes up routinely. 41 42 Zoltner – Does the family member have to be directly hired by the city or governing body or in 43 receipt of public money paid through a third party contract? 44 45 Bojorquez – If they are a city employee, but their funding comes from a non-tax source? 46

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1 Zoltner – Not a City employee, but are paid through the contract with city funds; paid through a 2 third party. 3 4 Bojorquez – If they are not an employee of the city, I don’t think this rule applies whether it is 5 your Charter rule or State. 6 7 Zoltner – Ok. 8 9 Eaton – So, go back to 171 then? 10 11 Bojorquez – Voting on it would. With this one unit, they are a pre-existing employee. That 12 Council member is prohibited on voting on their future raises, any personnel actions, etc., even if 13 they pre-date their relative elected to the City Council. 14 15 That’s it for State Law. I don’t think the interpretations I’ve given you vary from what you’ve read 16 in the AG’s handbook or on your own reading. 17 18 What’s left of our discussion is going to be a lot of my opinions about the law and what I’m going 19 to suggest to you as best practices having done this for many years either guiding my own clients 20 through ethics issues or occasionally hired as special counsel to help a city on ethics issues. If you 21 want to foster integrity at City Hall, if that’s how you interpret the City Council’s mandate to the 22 Charter Review Committee, then these are the five ways I think it’s done. Maybe you could give 23 me three or five or more ways. Maybe you don’t like these ways, but as we approach the topic of 24 what to put in the Charter, if anything, or what to recommend goes into future ordinances, if 25 anything, think about these things. These are my opinions, but there is quite a bit of literature out 26 there on the topic of government ethics and these are things that I think work. 27 28 1. Leadership: If a community outside these walls wants to see increased integrity, ethical 29 behavior, good conduct at City Hall, you have to start with leadership. So City Council, 30 Mayor, City management, department heads will have to walk the walk and talk the talk. 31 It is a very powerful indicator of whether or not you have an ethical organization. Do they 32 behave in a certain way? Do they expect those who work for them to behave in a certain 33 way? Are they role modeling? Are they having a conversation on a regular basis about 34 ethical issues that arise all the time? If you can’t get leadership buy-in to model these rules, 35 no amount of ethics ordinances you adopt are going to result in an organization or cultural 36 change. You can’t skip this step. I trust whatever you recommend will have leadership 37 buy-in. 38 39 2. Training: Not just once a year. Once you’re elected, but on an ongoing basis. Most of the 40 literature will say, in order to get an ethical organization, you have to have an ethical 41 conversation, will become an ongoing part of your dialogue. It is something routinely that 42 colleagues and piers discuss, then their supervisors get involved and then it crosses over 43 departments. What is the right thing to do? What should we do? What’s required of us to 44 do? Sometimes your staff is part of a professional association that can go off and do 45 training. Some, like lawyer or city planners, are required to go through so much ethics 46 training a year to keep their license/certification.

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1 2 3. Administering: This is the least desirable of them, all. Administration, process, procedures. 3 We yield ethical results by having ethical processes. It doesn’t matter who you are if you 4 apply for a plat amendment, it matters did you fill out the application? Did you give us the 5 data the ordinance requires? Did you pay your fee? Did you meet the timelines? If you 6 need a variance or a re-zone, have you met the standards to get a variance or a re-zone? 7 Doesn’t matter who you are related to or how wonderful or fantastic the project is. What 8 matters is if you followed our process. And it’s through the boring process and procedures, 9 the forms and the check-lists that we achieve justice in a procedural manner. 10 11 4. Regulation-Adopting Rules: Measuring people’s compliance with the rules. What’s the 12 rule, what’s the action? Is there compliance, is there not? If there’s not, is there 13 punishment? What’s the punishment? Having that sort of regulatory process is something 14 you need to think about. Some rules are more aspirational than others at City Hall, things 15 we should aspire to because they are somewhat lofty. Some are very, very mechanical, 16 very basic. I’ve seen some of the shortest, smallest ethics ordinances have some of the 17 strongest provisions. When I ask other Texas ethics experts that I know that deal with City 18 Halls, what is your ordinance, what’s the best one? They respond with “none of them.” 19 Because every single ordinance was tailored to deal with the demons that city was wrestling 20 with. Aaron and your City Attorney’s office will tell you whenever you are drafting an 21 ordinance, usually there is an impetus for that and you are reacting or responding to that, 22 whether it is a dog incident or ethical incident. And it should be drafted to better fit the 23 community. Example of ordinance. Every city is going to adopt something unique to their 24 rules. But who will enforce it? Is it an ethics commission? An oversight review or an 25 outside party? Having regulations is a more common step along this path of achieving a 26 more ethical City Hall. Read some of the data that I’ve read, or look at some of the poles, 27 or go online, use Google: Ethics rules, public trust and government, you will see a steady 28 decline in the public’s trust of government from the 1970s through today. But if you go in 29 reverse, you see a spike of ethics rules being adopted. There’s no study I’ve seen that has 30 any correlation that more ethics rules yields more public trust. The same studies that I look 31 at will say that (1) it’s nice that they trust local government more than federal government, 32 and (2) they trust staff more than elected officials. Doesn’t make sense, they get to choose 33 the elected officials, but don’t get to choose the staff. Study after study shows employees 34 at City Hall instill more confidence in the voters than the elected officials. If Denton 35 chooses to go down the path of adopting a more comprehensive ethics ordinance and you 36 need to figure out if that’s going to happen because of something you recommend for the 37 Charter or not, but for sure adopting regulations and trying to achieve a compliance rules 38 and regulations is a part of it. 39 40 5. Elections-Ballot Box: City after city where their perception of a transparency, that voters 41 tend to have their say when election time comes along. If there is a bunch of stealth feeling 42 or back room, sweetheart, good ole’ boy deals, the voters tend to fight about that and hold 43 people accountable at the ballot box. Maybe not all the time, that’s why sometimes you 44 do have strong ethics ordinances, ethics commissions to police that behavior because the 45 voters who voted to throw the bums out, didn’t win. The bums are still there, we get at 46 them through the ethics channel. To debate right or wrong, you’ll need to go somewhere

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1 else after the meeting to do that, I think it is all part of the package and how much the City 2 of Denton chooses to adopt something like this is going to depend more on you folks and 3 what you recommend. 4 5 Bojorquez – Some simple rules to achieve integrity on a daily basis, know the law. You were just 6 briefed on it you and have your notes; it’s there. There’s really no excuse. Know your city’s 7 policies and how Denton has adopted its own rules whether it’s by resolution or through an 8 ordinance or the little bits you have in your Charter. I’m a big believer in professional norms. I 9 did get my degree in Public Administration and when you read about the theories and those of us 10 who got MPAs know that a lot of discretion is entrusted to employees, department heads, police 11 officers, to school teachers. They get to make a lot of choices every single day with very little 12 oversight and no direction on the scene. How do you make sure they make good decisions? You 13 get them lots of training, drill them on your expectations and you have professional norms that 14 help fill in those gaps when you don’t have a rule that applies to that exact situation. 15 16 I know Denton has a history of being very involved in TML and other professional groups, trade 17 groups. So I’m sure your staff is getting trained. I saw an article by Professor Peter Sandman which 18 broke it down pretty easily into the acronym LEADS. Don’t you ask yourselves these questions 19 every time you are faced with a dilemma? Is it legal? Is it ethical? Because they are not the same 20 thing. Is it acceptable, does it just make sense? Is it defensible when it’s written about on the 21 newspaper’s front page, or worse the blogospheres? When the bloggers get ahold of this, can you 22 defend what you did? Is it just sensible? And it’s so often the case, that I can tell you yes, the 23 limousine trip to AT&T stadium in Arlington was legal. Yes, it was ethical because it didn’t 24 violate an ethics rule. Is it acceptable, defensible, or is it sensible? A lot of your faces wrinkled 25 up when I told you that. That is what you’re getting. You’re getting to the end of that and that’s 26 part of the conversation that really, if you did nothing else, would have your employees, elected 27 officials and volunteers run through this LEADS example, I’d bet you’d see improved results in 28 your community. I suspect that’s not going to be enough for those who want a more stringent 29 ethics code but I think it’s a good start. 30 31 So I mentioned the professional networking, these are just some of the ones that are very common 32 in Texas: American Planning Association, Society for Public Administration. I was amazed the 33 Building Official Association of Texas has a very strict code of ethics. How did I know that, as 34 my brilliant legal mind discovered? I was at a TML conference and they had a booth. So, in the 35 exhibit hall at TML, I walked up to the vote booth and said, “What are you all doing about ethics?” 36 Let us show you our code of ethics. The city secretaries have one, finance officers have one, 37 municipal clerks have one, your city secretary, Texas City Managers Association has one, 38 International City Managers Association, and talk about tough. Do we have any ICMA members, 39 TCMA members here? They will boot you out of the organization. They self-police it. They are 40 so strict they won’t let me teach ethics for TCMA. You have to be a city manager to teach ethics 41 and have to be a dues paying member of TCMA to teach ethics and they don’t want my curriculum, 42 they want their ethics rules, their tenants to be taught. They take it seriously. So much so that I’ve 43 known of city managers who have this great side deal and the city really would benefit from 44 contracting with this side deal but TCMA would never let this happen. So, the city manager resigns 45 from TCMA. They just contract with city manager as a side business. Once it’s all inked, city 46 manager rejoins TCMA. Nice trick right? Very ethical being. But these are tough rules. So while

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1 to some, it could be fluff. To most of these associations, I am active in one way or the other, and 2 they take their ethics training very seriously I think money you spend on sending your people to 3 stuff like this, is money well spent. So all of that funnels down to what’s in front of you. And the 4 question has come up. I’ve seen some of your minutes and spoken to some of your members, is 5 this notion of your charter. Is it enough? Is it lacking? Is it too much? Is it holding you back? 6 Do you need a stronger more comprehensive ethics ordinance than whatever ordinances you have 7 on the books? Do you need to repeal and replace the ethics policy you have? When you look at 8 the world of ethics ordinances, these are the kinds of things they normally address. Will there be a 9 board or commission? 10 11 It’s amazing to me, one of the standards that’s held out there as being one of the more 12 comprehensive, thorough, well managed, is the City of San Antonio. The City of San Antonio, in 13 order to have an ethics review commission that processes this stuff, not only do they have ethics 14 advisors who are lawyers, who don’t work under the city attorney, they work under the internal 15 auditor’s office of the city. Even then, there are some in the community that are not pleased with 16 the process and they want a completely independent body, not appointed by city council. The 17 auditor is appointed by the city council. The Ethics Review Commission in San Antonio is 18 appointed by the city council. We need one from somewhere else. Where would they come from? 19 I don’t know, are they elected? Are there elected ethics commissions. I was in El Paso last week 20 advising them on this exact same issue in El Paso. What are some people clamoring for in El Paso? 21 Oh, we’ll let our municipal court judges select our ethics review commission members because 22 you know how objective and nonpolitical municipal court judges are, right? In El Paso they have 23 like 20 judges. It’s a very large court; they have day and night court; the whole thing. As a City 24 Attorney I get a little knot in my stomach at the thought of judges picking them. But you get to 25 decide. The City of Denton gets to decide if you are going to have a thorough ethics ordinance. 26 Who is going to administer that? Is it volunteers? Is it staff? Is it like the City of Plano, where 27 complaints are sent to city council for action? Okay, so there’s no commission. It goes to the city 28 council. Is there going to be some sort of preview? Is someone going to do an initial assessment, 29 a preliminary evaluation to make sure a complaint has merit? Before it goes prime item on the big 30 screen broadcast on the news channel whatever, who is going to do that? Is it the City attorney 31 office? Is it the auditor’s office? Is it a sub-committee? What are you going to do to make sure 32 that neighbor on neighbor violence isn’t showing up in the form of an ethics complaint or warring 33 candidates in a contentious election is going to come up as an ethics complaint? Cities vary on 34 which version they are going to do. What is your process and criteria? 35 36 One town brought me in, they had a requirement to review their code of ethics every five years. 37 So they got a new ethics review commission their going to review their ethics ordinance, they look 38 at it and say they want to take a look at the ordinance. Two interesting parts of this. Your ordinance 39 says that deliberations regarding ethics complaints in the preliminary stage by the commission are 40 confidential and closed door. When you look at what the powers that group, the ethics review 41 commission in that town looks a whole lot like a governing body just like a city council or a 42 planning and zoning or a board of trustee or county commissioners...so the open meetings act is 43 triggered. Is it a personnel matter that allows you to go into executive session? Or you look further 44 down all documentation regarding complaints that are unsubstantiated are confidential. I think the 45 open records act, the public information act has got a lot to say about that issue. You’re looking 46 at the rules and process and procedures and the practicalities of state law and the mandates of state

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1 law are going to get involved. Your ordinance will have to reconcile that, at some point. What is 2 the punishment? Is it a letter of admonishment? Is it a public mocking? Do this again and we 3 shall taunt you in public. Okay. Maybe it’s a censure or a public reprimand. Well, employees 4 can get fired, volunteers can get booted off the board. In representations of others, it’s a common 5 attribute of many ethics ordinances to say, if you are a member of a board or commission you 6 cannot for money represent anyone else before that board or commission. But you can play with 7 it. Is it that board or commission only or for all boards and commissions? Or if you do it on a 8 volunteer basis are you okay? I can represent my mother before P&Z. I can’t represent my 9 neighbor for money. The ordinances change. 10 11 But at the City of San Marcos, they had an ordinance that just says period. If you serve on a city 12 board or commission you cannot represent somebody at city hall in front of any other board or 13 commission. And the chair of Planning and Zoning broke that rule and was automatically under 14 the ordinance, kicked off as chair of Planning and Zoning. The bad news. He was a lawyer. And 15 lawyers are just the worst. And so he sued the City of San Marcos wanting to get his seat back on 16 P&Z. Most P&Z commissioners I know would go “woohoo”! Thank you. I’ve done my public 17 duty, I can go home. No. He sued and he lost and it went all the way up to the San Antonio Court 18 of Appeals, which found that the volunteer had no property interest, no judiciable right to be on 19 the planning and zoning, that when he agreed to serve in that capacity, he agreed, knowing the 20 city’s rules and when he broke the rules, he was out. That’s one of the few actual reported appellate 21 opinions we have on the on a municipal ordinance in Texas. 22 23 Conflicts and gifts. Maybe you think the $50 rule is too generous. Knock it down to $25 or $10 24 or $0. Another town I represented they were going through their ethics ordinance and boy oh boy, 25 they set their targets, no comped meals. The definition of a gift means a comped meal. I said okay 26 can we table that until the next meeting. In between I called the Chief of Police, come join us at 27 the ethics committee. He said what have we done wrong? What have our officers done wrong? I 28 said what do you mean? Well I don’t know about Denton but a lot of other places, when you show 29 up in a police or fire uniform, you often don’t pay for your tab or you don’t pay for the full tab. I 30 know because I’ve been there. I pay. I get my bill but the police officer sitting next to me that 31 I’m having lunch with, gets his comped. It happens a lot. Well why, would you guess. I don’t 32 know if cops are there and police cars are parked out front, maybe the place won’t get robbed. 33 Maybe they’re really appreciative maybe they hope the cops will respond to calls faster, I don’t 34 know. Really all cops don’t change who they respond to calls based on free meals. I know that 35 when I travel whenever I see a restaurant that looks like a dump but there’s a fire truck and two 36 police cars are parked there, that’s where I’m eating because the food is guaranteed to be top notch. 37 I don’t know why restaurateurs do that. But in this town they said, sorry Chief. We pay your 38 officers enough that they can buy their own breakfast, lunch and dinner. If you’ve got an issue 39 with how much they are being paid, bring it to the Council during budget time but no comped 40 meals. Chief’s like okay. Tell me the rule, we’ll follow the rule. So some go well beyond the gift 41 rule when it comes to those sorts of things. Moonlighting is a big one and again I pick on police 42 officers because that’s where I get the HR problems. Usually because the department will set a 43 policy not the city. So okay, police officers can moonlight as security fine. Can they wear the city 44 uniform? Can they have a city car? Is the city getting paid for the use of the city car? Can they 45 do security anywhere? Or anywhere except those places that have a TABC liquor license beer 46 permit. Okay it can be anywhere that has a liquor permit but nowhere that’s a sexual oriented

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1 business and on and on. Is the same thing true for your planning department? Your engineering 2 department? Do you care if employees have outside jobs, if so, what are the rules on doing that? 3 Otherwise, it’s usually legal for them to do so, as long as they are not using city equipment to do 4 that. I even had a guy recently, a city planner who was indicted because even though the council 5 knew he had a sideline business, he told everyone he had a sideline business he mistakenly 6 responded to a personal business issue with his city email address. And the DA said that the use 7 of a city email address was abuse of office and abuse of city equipment and resources and had him 8 indicted for that. That’s still pending. That’s stricter than I’ve ever heard of, from a criminal 9 standpoint. 10 11 Revolving door is big. City of Dallas did not have a revolving door provision in its code of 12 ordinances until they created a new Sports Authority, got the taxes approved, got the bonds issued 13 and the City Manager goes and resigns from the City of Dallas to emerge as executive director of 14 the new Sports Authority. Now, the City of Dallas has a revolving door policy. Again, a lot of 15 these ethics ordinances no matter how you try to draft the perfect beast, they are in response to 16 things that come up in your community. Do you have rules? I think the City of Plano has rules. If 17 you’re a city council member, you can’t represent someone before the city for six months or ninety 18 days after you left office. If you are an employee, you have to wait a year before you can come 19 back and do that. If you are a volunteer on boards and commissions, it’s a certain time period. If 20 you don’t have a revolving door, state law does not restrict it. There is a state statute for state 21 employees. If you work for TCEQ or the Water Development Board and there’s a period of time, 22 usually, it is two years before you can take payment at an outside employer working on the exact 23 same issue that you worked on. But if you’re working on unrelated issues, unrelated to your time 24 of state employment, then you can jump ship from the state agency and go to work in private 25 practice. But unless you adopt a local rule on the revolving door, there is no such limitation on 26 staff, elected or volunteers. 27 28 Purchasing rules is a whole other topic. Your procurement department will have those that go 29 beyond just the bidding requirements, competitive proposal requirements, historically 30 underutilized business requirements, but those types of limitations on spending money and 31 contracting also achieve some ethical results. Disclosures, you know the state law disclosures, 32 some cities have additional disclosure requirements. Lobbying is one that I would like to see more 33 of but they are very unpopular. In part, because lobbying restrictions are restricting people talking 34 to people grownups talking to grownups. Also the lobbyists are pretty good at lobbying on behalf 35 of lobbyists. I met the guy who created the lobbying association in Austin that lobbies on behalf 36 of all their lobbyist in the state. It’s a great thing to do. I know that even in Austin for example, 37 where I live, where my office is, I’ve helped communities that have incorporated before as cities. 38 One of them was partially in Austin’s ETJ and they wanted Austin to release it. So I had to go 39 down and knock on doors and try to convince people to release it. Austin’s ethics ordinance has a 40 lobbying component that reads if you’re going to lobby, you’ve got to register. What’s your name? 41 Who's your client? What’s your issue and pay a fee? I think back then, it was $500 a year. It’s a 42 substantial registration fee. I think its fair game. Even right now, currently pending, both Travis 43 County and the City of Austin are reviewing and revising their lobbyist rules. 44 Another part that is sort of ethics related that you see cities starting to do a little bit of, is campaign 45 finance. Some cities, San Antonio is one of the examples, I think it’s if you give more than $1,000

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1 to a candidate, you are banned, prohibited from entering into certain kinds of contracts with the 2 city for a period of time. That’s not all contracts but it’s categories of the major contracts. I’ve 3 heard anecdotally from some from some of the staffers at the City of San Antonio that the elected 4 officials hate that rule. It really makes raising money for a modern campaign difficult. The vendors 5 love that rule. Oh, thank goodness. I can now have lunch and breakfast or dinner or go home, 6 whatever, or see them at the Lions Meeting and they don’t have their hand out, constantly asking 7 for donations, receptions, hosting events, and whatever. So, if the city were to adopt campaign 8 finance laws they can have that separate or they can have that as part of their code of ethics. 9 10 This is not exhaustive, there are plenty of other things that are in ethics ordinances. Whoever 11 designs one, for Denton, if you go down that road, is going to have to kind of go through a list. I 12 think first of: what’s the problems? What are the boogeymen that keep you awake at night? What 13 are the issues that the community is upset or concerned about that we need to address that are not 14 already sufficiently addressed elsewhere. As a lawyer, it’s a general rule, I don’t know how Anita 15 Burgess or how Aaron Leal is going to approach this. I tend to try to counsel clients against 16 duplicating what is already in state law. Whether it’s regulating dogs or regulating ethics or 17 regulating whatever. Go above and beyond if you need to, fill in the gaps if you need to. I don’t 18 see a lot of benefit in that level of overlap. By way of example, this is all in the media, so I’m not 19 conveying anything confidential. That would be unethical. Last week, the dilemma before the El 20 Paso Ethics Commission was that mayor and council members have been publicly accused of 21 violating the Open Meetings Act by having a series of discussions, less than a quorum, without 22 public notice or public participation. Some call that a rolling quorum, walking quorum, whatever. 23 Ethics complaints were filed against the mayor and those council members for violating the Open 24 Meetings Act. The question I had to wrestle with was, does the ethics review commission of the 25 City of El Paso have jurisdiction and authority over the Open Meetings Act. Well some could 26 look at language. They should be lawyers themselves. They are good at some obscure language 27 and try to bootstrap the Open Meetings Act into the ethics ordinance, and I declined to do that. 28 29 I did not support that interpretation. Was I influenced by the fact that I know the Texas Rangers 30 was in city hall interviewing people? Was I influenced by the fact that little birdies had told me 31 grand juries had been convened? I don’t know. Grand juries. Those are secret deliberations. I 32 have no idea. But the state is handling that. But that’s just one guy’s opinion. Several on the 33 ethics review commission said that this is exactly the kind of stuff we should be reviewing. If it’s 34 not in our ethics ordinance, it should be in our ethics ordinance. What if the state does nothing? 35 What if their no-billed? What if they go to trial and the jury finds nothing? We still think that if 36 they did this, it was unethical for them to do so and we should hold them accountable as an ethics 37 commission. Okay. That’s what you think and if you want the Council to amend the ordinance to 38 do that. That is a political policy conversation for the City Council to do that. Some ethics 39 ordinances are incredibly broad, some are very narrow. 40 41 If you are San Antonio, you will have to have a very, very substantial ethics infrastructure. I don’t 42 know what else to call it. The personnel and the funding to go through all the things that San 43 Antonio monitors and they do it for about ten complaints a year. Somewhere between eight to ten 44 complaints filed a year in San Antonio. In El Paso, I think probably seven complaints have been 45 filed since I’ve been standing here. Its way out west and it’s obvious that the ethics ordinance is 46 a political tool. A weapon of sorts. By the way, some of the complainants that have filed the most

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1 recent complaints are also candidates for office and they filed against incumbents. Doesn’t mean 2 there were no ethical issues there, my review was limited to what does the ordinance have to say. 3 And I know that is a question that some of you want to get to, is if you are going to pursue a more 4 ethical culture at the City of Denton, does that mean every bit of behavior has to be tied to a written 5 standard or can you have broader, general standards that folks can be held accountable to, even if 6 you can’t find a very specific breach or specific violation. And that is certainly something that we 7 can talk about. Because where we are is this slide and some of you may have been there when you 8 walked in the front door. You are already here and you didn’t need the rest of the material I was 9 asked to present on. But what are you going to do? You are a charter review committee. You’ve 10 looked at several aspects of the home rule charter. This is just one of them. You have a specific 11 charge regarding this. What are you going to do? 12 13 Some people out in the community might think that number one is a non-option. Nonsense. I’m 14 a lawyer here to tell you that doing nothing is always an option worth evaluating. It’s possible 15 you’ve learned all you need to learn and you either think that state law has got this covered, your 16 charter has already got this covered, or fixing this is beyond the scope of what you are going to do 17 with your charter. So, I would certainly say, consider doing nothing and decide if that’s 18 appropriate for Denton or not. If you choose to do something, what is that? You could recommend 19 the City Council do something else. They could establish a broader policy or a more specific 20 policy. It could be done by resolution which is really a statement of the Council’s will. The one 21 policy you have right now, I mentioned before in my opinion, is fairly aspirational. I know it’s 22 likened to the Boy Scout Oath and Boy Scout Law and makes me laugh because when I do ethics 23 training, this is not my usual ethics training course. I get into the Girl Scout Law and Boy Scout 24 Law and think there are lots of good things in there for people who are trying to be good actors. 25 They are trying to behave themselves, conduct themselves in a way that instills trust and 26 confidence in the voters. A lot of us learn these rules young in life and a lot of us, big overgrown 27 Eagle Scouts standing in front of you, we’ve never stopped thinking about those rules. I’ve got a 28 ten-year-old Girl Scout and we go over those things on a regular basis. Because, if she forgets 29 everything else, she’ll eventually remember those laws. 30 31 Well yours has a lot in common with that. Don’t know how it was drafted. I know the mayor who 32 was there when it was adopted and signed and the former city attorney. Is that enough? Do you 33 need another resolution? Do you need another policy? Or is that not going far enough? Is your 34 recommendation going to be here needs to be an ordinance? An ordinance is actually law. An 35 ordinance can trigger all sorts of things including: expending of resources, fines, penalties, hiring 36 of people, and firing of people. It seems to me and you can argue with me in a moment, beyond 37 the scope of your charge for this group to write an ethics ordinance. But certainly you’ve had 38 enough discussions and a lot of you have done your own research to where you’ve gathered 39 information that would be good to go into an ordinance and maybe that’s the next step. But if you 40 want an ethics ordinance like Plano, Ft. Worth, San Antonio, San Marcos, San Antonio or the other 41 cities, who have them, that could be something that is done and the process and procedures are set 42 up for that. That might be your recommendation. Or the fourth one, which is what we are really 43 charged with, is the charter. What do we do about the Charter? What you have right now is 44 basically state law. The nepotism provision adds a little bit. You could leave it there, you could 45 recommend it be repealed. I hate to say repeal and replace, but that’s where we are. Do you want 46 to recommend that your charter language be repealed and replaced with something else? Is it

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1 replaced with an ethics ordinance? Is it replaced with a charter provision that requires an ethics 2 ordinance? 3 4 Because, as a municipal lawyer, I tend to view a charter as two things. It establishes the basic 5 framework for your government which is different than Dallas, Ft. Worth, Plano or Richardson. It 6 is your government, your charter. The voters have given you these powers and they’ve held back 7 these other powers for themselves. That framework for your government is the key part of the 8 charter. Another part of a charter is limitations. There may be things that state law allows the City 9 of Denton to do but the charter prevents the City of Denton from doing. The third part, which is 10 much more common, is an enabling piece of legislation that was voted on by the voters. It 11 specifically empowers the city to go and do this. As long as state law does not prohibit it, the city 12 can do whatever its charter allows it to do. In Texas, 1200 cities and 450 or so are home ruled or 13 450 different ways to do it. I don’t know what other charters you’ll have looked at or other charter 14 language but if you’ve looked, you’ve probably seen a lot of different approaches to the same 15 problems. One thought is, if you feel like the mandate from the Council and what your hearing 16 from your fellow citizens is such that you need to have more ethics rules in Denton, then you can 17 consider adding a line that says, “The City Council may adopt an ethics ordinance.” That’s easy. 18 Its one sentence. You could do a similar sentence, “The City Council shall adopt an ethics 19 ordinance and.” What goes after that? You could stop there, you could say “and appoint a charter 20 commission” or just leave it to the ordinance to decide. How much guidance do you think the 21 voters of Denton want to give the City Council on what’s next? Now again, speaking as a lawyer, 22 I like things to be clean. Can we do a double proposition to adopt language in the charter that 23 requires the City Council to adopt an ethics ordinance and repeal the two provisions you already 24 have in the charter, so that everything is in an ethics ordinance? That’s clean. It’s neat and tidy. 25 Your ethics ordinance should put in what the penalties are, the enforcement provisions. That’s 26 nice. Now. Will the voters do that? You can have a joint proposition now, we used to not do that 27 but now we can have joint propositions. Maybe that’s something to do or maybe you leave the 28 charter as is and the council just adopts an ethics ordinance. Because it’s my opinion that nothing 29 about your current charter prohibits the council from adopting an ethics ordinance. I think legally, 30 they can still do so. Its better, it’s preferable, if you have language from the charter that gives them 31 the power to adopt an ethics ordinance. It kind of bolsters that power, but I don’t necessarily think 32 it is necessary. It’s just more ideal. 33 34 Mulroy – Allow or empower or “they shall”, must. That’s one of the questions because they could 35 adopt an ordinance now, if they so choose. There’s just been no movement. 36 37 Bojorquez – The Council’s position on the charter ethics provisions or the notion of having an 38 ordinance that is not information I am privy to and I purposely stayed away from that because I 39 don’t know their political desires ideals or limitations. I’m hired by the City but I’m here to help 40 you guys right now. 41 42 Mulroy – You work for this committee. You’re being paid through a City apparatus but you’re 43 really working for the committee in total. I want to re-phrase my comments and say, is there 44 anything in our charter, right now, that prohibits the City Council from writing an ethics ordinance? 45 Bojorquez – I don’t think so. And, I did not talk to Ms. Burgess or anybody else about prior 46 interpretations so I’m just going on my own here. I think if I were someone that was opposed to

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1 that, I would say, well, we need enabling legislation. We need the voters through the charter to 2 tell us that we can adopt an ethics ordinance. Or, lawyers doing what lawyers do, I can look at it 3 and say, the voters have already given you the ethics provision they want and so, don’t do anything 4 else. State law covers everything else. If the voters wanted you to have ore ethics power, they 5 would have given you more ethics power. To do anything else is to go beyond the charter, go 6 beyond the voters, and possibly conflict with the charter. And so, that’s why I say, my ideal, as a 7 municipal lawyer would be to have at least a little light in there saying, “shall or must adopt an 8 ordinance”. That gives the Council first of all, some political cover, because you can’t ignore the 9 politics of these kinds of issues. Also, the Council may want that push. They may need that push 10 or maybe, because I don’t do politics, you’ll can do that. The voters need to have something on 11 some future ballot that they can click “yes” that communicates to City Hall how the voters feel 12 about ethics at City Hall. You want to give them that avenue. Well, what I’m always going to 13 recommend is that the Charter be as lean and mean as possible. Whether I’m doing my adjunct 14 professor work or I’m being a lawyer or I’m doing whatever, you look at the U.S. Constitution 15 over here with the Bill of Rights and you look at the Texas Constitution over here and you get 16 nauseous, because, there’s something in it for everyone. Every special interest group for a zillion 17 years has shoved something in there and the Legislature is constantly putting before the voters, 18 who may or may not be informed, to amend our Constitution. Well your charter is kind of your 19 constitution so, I’ve always got a bias, less is better in the charter. If the question were posed to 20 me, should this group write an ethics ordinance and then turn it into a proposition that gets voted 21 on, on a ballot to go into the charter, I would urge you to be very cautious of doing that. I think it 22 is a hard thing to draft, it is a hard thing to communicate to the voters and it is a hard thing to 23 administer. Because no matter how well you write an ordinance, there’s going to be some 24 problems with it. And charters can only be amended, as you know, every two years and they are 25 difficult to amend. And so, what you choose to do is going to be on you. I also caution you to 26 start off fairly simple and get more complex as time goes on. 27 28 I mentioned Wimberly to you. One of my final stories before we get into questions and answers 29 is when the newly created Village of Wimberly was incorporated in 2000, one of the first things 30 they did was want an ethics ordinance. I thought that was ambitious for a town that still hadn’t 31 gotten zoning or subdivisions or signs or other things that cities need to regulate. I said, “I’ve done 32 a lot of work. I’ve written papers for the City Attorney Association, I’ve sampled ordinances 33 across the state, I’ve got kind of a package of samples, why don’t I come up with a draft that I 34 think fits a town of 2,000 people and you’ll can tweak it or modify. “No, that’s okay lawyer boy, 35 we got this covered. We got the mayor’s blue ribbon panel on ethics. Someone from the school 36 district, a local reverend, a local realtor, retired teacher, big property owner, some very influential 37 citizens, sitting as the blue ribbon panel and they wrote their own ethics ordinance with no legal 38 guidance at all”. A professor from Texas State University, then Southwest Texas, very smart 39 people. Then a week before it goes to Council, they call a meeting to approve it and the week 40 before that, they give it to me to review, just for the lawyer’s blessing. And I know staff loves 41 when that lawyer’s blessing thing comes along at the last minute. 42 43 I look at this ordinance and I appear before their ethics blue ribbon panel. As an illustration of 44 what they had done, I pointed out how incredibly strict this ordinance was. That under their 45 proposed ethics ordinance, if they had a janitor, a custodian at night who swept up, from a vendor, 46 there’s a contract custodial firm. I doubt any cities have employees who sweep up anymore, it’s

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1 usually a vendor. If that janitor at City Hall had a spouse and that spouse had a mutual fund and 2 in that mutual fund was some Dell stock, that ethics ordinance would prevent the Village of 3 Wimberly from ever buying a Dell computer – no matter what the bid was, no matter what the 4 technical specs were. It would completely take that off and I can’t see how a janitor’s spouse’s 5 mutual fund has any effect on transparency or integrity at City Hall. I was cautioning them that 6 they may want to ratchet it back a little bit because I thought it was a little unworkable. So, the 7 heading – it’s a weekly newspaper out in Wimberly – the heading, front page of the Wimberly 8 newspaper in the next issue, “City Attorney opposes ethics ordinance.” Did I mention that I am 9 the former City Attorney of Wimberly, Texas? It was a good run while it lasted, but it’s hard to 10 come back from that. And I think some of you are going to be in that position. I think the City 11 Council is going to be in that position. Politically, it’s a very hard thing to do to oppose an ethics 12 ordinance, even if you’re opposing it because of some of the specificity, some of the nuances, 13 because of some of my experiences. You’ve got a university here, you’ve got a very engaged, 14 educated electorate, but often there are voters that don’t do nuance and they don’t understand the 15 finer points. And so, if you’re going to draft an ethics ordinance, I recommend that’s something 16 separate and apart but you decide what to do about your charter. I’ve given you a couple of options 17 there, so, that’s all the prepared materials. I’m yours for questions and answers. 18 19 Mulroy – Let’s open up for some hard questions. 20 21 Bojorquez – Don’t have to be hard. Softballs are okay too. 22 23 Johnson – To the extent that you are aware of, what happened in the North Dakota Legislature 24 related to ethics? 25 26 Bojorquez – Sorry. I’ll have to plead ignorance on that one. I’m just not familiar with it. 27 28 Johnson – You’re aware of what happened? 29 30 Bojorquez – No sir. I missed that. 31 32 Johnson – The people of North Dakota voted an ethics law into effect and the Legislature 33 apparently calling an emergency to discount it, tossed it aside. 34 35 Bojorquez – We know all about initiative and referendum here in Denton so we know how that 36 goes when we have voters give us laws. David, did you have something? 37 38 Zoltner – Two questions kind of related. I was kind of intrigued by your comment that as there’s 39 a decline in public trust, there’s a rise in ethics ordinances. Now, those two metrics are either 40 related or they’re not. If they are related, then that would kind of suggest that ethics ordinances in 41 general are kind of irrelevant. So, the second part of that is, we all know it is kind of cliché that 42 ethics ordinances do not create ethical people but they may influence an ethical culture. In your 43 experience, does ethics ordinances at least, kind of up the ante a little bit ethically in those 44 communities, even if they don’t, they’re not perfect, I get that, but does it improve the ethical 45 climate or the culture, in some way, in these communities that have already enacted some of these 46 more comprehensive?

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1 2 Bojorquez – I think so and I’m not anti-ethics ordinances. I just don’t know the public’s distrust 3 is going to be remedied by adopting rules. It is possible adopting rules will in fact, increase ethical 4 behavior but you don’t see that reflected in public trust. A lot of folks theorize. I mentioned the 5 federal thing. Lots of folks theorize that so many citizens are so upset at the federal government 6 that, we feel that at City Hall because they can’t effectuate the federal government very much. But 7 they know who their mayor is, their council member is and they should know who the city manager 8 is. So, they take it out on those of us local. I know in my own experience, anecdotally, I’ve had 9 to sit through council meetings during the citizen’s comment period. We’re getting griped at by 10 citizens and what they’re really griping about is not a municipal issue at all. It is a state or federal 11 issue but they can’t find someone in Austin to gripe out but they know city council meets 12 Wednesday nights at 7:00 p.m., and Tuesday nights at 6:00 p.m. And so, even though I don’t think 13 there’s any study that shows that correlation between more rules means more trust, maybe we get 14 more behavior. The whole thing goes back that people trace the increase in ethics rules nationally, 15 to Watergate. And in Texas, they trace ethics rules and open government rules, to the Sharpstown 16 Bank scandal, which again, was state legislators, not city officials, not school board trustees. So 17 more and more rules get adopted but public opinion polls keep going down. I think having a few 18 standards is a good idea. I’m very much in favor of professional ethics standards for lawyers, 19 planners, and everybody else. And of course, that five pronged approach to try and get city hall to 20 be a place where folks trust at some point that I may not know what’s going on at city hall but that 21 they’re not trying to enrich themselves. So I can worry about my kid’s soccer game or something 22 else. To me, that’s the goal we should be working for, if we accept a public position. 23 24 Zoltner – If I could ask one more question real quick, unless there’s someone else. Of all the state 25 penal and conflict statutes that you’ve mentioned that are still there and may still be enough to 26 protect us, we all know that local district attorneys are never politically motivated. But you’ve 27 mentioned the Texas Rangers a couple of times. How does that work in terms of investigation or 28 prosecution of something flagrant? 29 30 Bojorquez – Usually, when it’s a public official, which could be elected or a city planner, it’s 31 usually going to be, someone goes to complain to the DA’s office and the DA’s office will have 32 the Texas Rangers investigate. Some district attorneys have their own staff investigators that do 33 it for them. Usually, they are police officers that are working as the DA’s investigators. Some 34 counties don’t have that resource. For elected officials, it’s quite often the Texas Rangers. There’s 35 been times where I have been ordered by a majority of the city council to take my file and go and 36 drop it on the desk of a DA’s office because a former city council member stole monies, theft of 37 services in utilities, something like that. I’ve actually had Texas Rangers tell me to my face that 38 when it comes to politically charged, high profile elected officials, they will not do a full 39 investigation, unless they first get from the district attorney a letter that says, “if you bring me back 40 evidence, I will prosecute”. That’s because the Texas Rangers have gotten tired of getting caught 41 in political fights between local officials and DAs. And so, you’re right. That’s an on-going issue 42 in Texas right now. We used to have the public integrity unit in Austin based in Travis County. 43 It was accused of being too partisan in its politics. So now, the legislature had fractured that out 44 back to the various district attorneys across the state, unless its Austin officials. 45 Zoltner – So, it’s pretty much discretionary then, with the DA, I guess. 46

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1 Bojorquez – A lot of discretion rests with the district attorney’s office for these offenses, yes sir. 2 Open meetings, open records, it’s sometimes the county attorney, if that particular attorney has 3 criminal authority. 4 5 Sullivan – Seems to me the idea of the level of trust and the number of ethics rules and so forth, to 6 me, can be explained very simply. Whenever you see, on the one hand, gifts, awards and 7 mementos okay, if under $50 and then you give the example of paying a limo to AT&T Stadium 8 where the tickets are more than $50, limo ride is more than $50, and the meals are more than $50. 9 Everything about the whole trip individually is more than $50 and yet, they could do it. And, I 10 think when the public sees those kinds of things, they’re saying, “So what’s the point of having 11 these rules, if you can break them?” If you can drive the limo through them. And I think, that’s 12 really what the general public sees is locally, we’ve seen that first hand and we’re thinking, well, 13 why wasn’t anything done? Like from the real estate aspect, and other things. So it’s just how do 14 you get those two together, where you drive the limo through it, and I guess, you get where the 15 janitor’s wife’s mutual fund thing? There has to be a happy medium somewhere that those can 16 work in the same world. 17 18 Bojorquez – Well, I can tell you that I have served cities where city councils, granted these are 19 smaller cities, they’re not as large as Denton, where city council have put it on an agenda, convened 20 a meeting and publicly, out in the open, reprimanded a mayor or city council member for conduct 21 that the city council deemed to be improper or in appropriate and there was no ethics ordinance. 22 There was no written local rule that said, “Thou shalt not be a jerk to city staff.” But after this 23 mayor had come in and yelled, hollered and been a bully to so many city officials, the city council 24 decided, we can’t operate our business with this thing going on. We don’t need a written rule. 25 We’re going to give you the public “shame on you” in the form of a written resolution that’s 26 passed. And I’ve seen that in multiple cities, with no ethics ordinance. 27 28 Alexander – That doesn’t even have to be a charter revision. 29 30 Bojorquez – No. These towns are too small to have a city charter. I think that is totally within 31 their authority to do so and I think the City of Denton can do that. In part, it’s politics. In part, 32 it’s a public statement of values, priorities and characteristics we want to see in our public servants. 33 But then I have some folks that say, “If I can’t find it in writing, then I can do it and who are you 34 to accuse me of it?” Well then they get lawyers to write rules. They’ve got to find a technicality 35 because some lawyer found an exception to the rule. Well, you know, what are they accused of 36 having done? Or they’re accused of having disclosed something to a citizen. Was it confidential? 37 No. But it was private. So, I don’t know what private means and what confidential means. I think 38 if you want to have a more ethical organization, you’ve got to have more public conversations 39 about it. Must they all be accusatory or judgmental? No. But you need to have more conversations 40 about it. You know, back when I interned for the City of Lubbock, I interned in the trash 41 department, which was the best job I’ve ever had in my life, in Solid Waste Management for 42 Lubbock. And they’ve got their quarterly safety meetings. It’s about safety because they had their 43 own trash trucks, people hanging off the backs of trucks, ran a land fill, and that was a good deal. 44 That was an excuse to bring in everybody, park the trucks for a little while, coffee, donuts, and 45 orange juice. What they really did was talk about their values as a department. Back then, they 46 hired an outside company to come in and do a survey. The highest job satisfaction in any

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1 department in the City of Lubbock was the Solid Waste Department. The folks were not only the 2 most ethnically diverse, lowest educated, lowest paid and probably the most at risk, other than 3 utilities. But they had a lot of satisfaction because it was all about values. Well that stuck with 4 me to where I’m coaching cities. Where’s your quarterly ethics meetings? Where’s your twice a 5 year meeting to get coffee, donuts, orange juice, and talk about your values as a department and 6 what instills the public’s trust in you, so they don’t have to see everything that’s on your desk on 7 in your email, they believe you are out there working for them. Well, very few of my clients ever 8 have those conversations. We’ve talked about the City of San Antonio which again, has a huge 9 infrastructure. I don’t know what they spend on their ethics ordinance but they have routine 10 training. Every new employee has ethics training. Every new council member has ethics training, 11 periodically they have to go through ethics training. Is it going to be the online DVD or is it going 12 to be in person? Each lawyer that covers each department head is trained on the ethics ordinance 13 and is that department’s ethics advisor and answers behind the scene ethics questions. Can we do 14 that? Should we do that, don’t do that? I think a lot of ethics complaints don’t rise to the level of 15 a complaint anymore because they put together this infrastructure to deal with this issue in San 16 Antonio. But it’s broad, it’s comprehensive, it’s undergone lots of changes and it’s very expensive. 17 And, some citizens are still not pleased with it and want to amend the charter to change it. 18 19 Eaton – The question I have is, who does the policy apply to? Because it says, “elected officials 20 can appoint all the boards and commissions.” And then it says, “they must adhere to the following 21 Texas statutes:” and then they give all the statutes. So my first question is, in your opinion, who 22 are elected and appointed officials? 23 24 Bojorquez – The aspirational part talks about city’s boards and commissions are asked to subscribe 25 to Texas Statutes, the Charter, the rules. I’m looking at the most recent version. Elected city 26 council members as well as appointed members to cities boards and commissions. 27 28 Eaton – On page two it has something different. Seems like there’s three separate clauses there. 29 30 Bojorquez – Normally I think of appointed officials as city council members who are appointed to 31 fill a vacancy, if you are allowed to do that, and people who are appointed to boards and 32 commissions. Yes, people are appointed to staff department head levels, but I normally don’t 33 interpret that to mean that. 34 35 Eaton – My question is, because this is a policy, how does this go back to 171? 36 37 Bojorquez – 171 applies to the city council, and to it applies to boards and commissions that 38 exercise sovereign functions. The best example is planning and zoning. Whether or not other 39 commissions are subject to it, I would have to look at the commission’s membership and what 40 they do to make that decisions. 171 does not apply to employees under state law; it does not apply 41 to independent contractors. 42 43 Eaton – So the enforcement aspect of this is actually created by an ordinance. Does it make sense 44 to have an ordinance to carry out a policy? 45 Bojorquez – In reality city councils are allowed to take action one of two ways. They can adopt a 46 resolution, which is really a statement of their collective will; that’s how its best described. Or

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1 they can adopt an ordinance, which is law. If you look at State statutes, some of them are 2 inconsistent about whether an action can be done by ordinance or resolution. Or sometimes in state 3 law it says you can do it by ordinance or resolution, as if they are interchangeable; and I don’t 4 think they are interchangeable. I think you can adopt a policy by either one. Policy can be 5 aspirational; things you hope people will be like. But there is no punishment because there is no 6 bright line test, no clear standard. You can adopt a policy by ordinance. I would recommend to a 7 client that if you are adopting something that you’re putting some teeth into, that’s going to cost 8 someone their position or cost them money, or cost them a reprimand, then I think it should be 9 done by ordinance. That’s just my preference as a municipal lawyer. A policy can be adopted 10 either way. 11 12 Eaton – Is it common to have a policy enforced by an ordinance? 13 14 Bojorquez – I don’t know what’s common in that regard. I would recommend you roll them into 15 one thing. Some ordinances, the barking dog ordinance, could have some policy statements at the 16 beginning as to why controlling barking dogs is important. Then you get to the meat of it; if your 17 dog is barking after these hours, here is how you do a complaint; here’s how you do code 18 enforcement; here’s how you do punishment. You go to something more important like ethical 19 behavior, you can have an ordinance that takes care of all the policy stuff up front and then gives 20 you the actual rules. You cannot accept a gift if it’s over $25, you cannot accept sporting tickets 21 if the value is over whatever. And then here is the punishment if you do so. Part of the difficulty, 22 especially with complex organizations, is you or your ethics review commission might think 23 something is an ethical issue. But your city manager might think it’s a human resources issue. 24 And they want to deal with it because they are the ultimate boss of these employees. But someone 25 over here has jurisdiction, because you created an ethics ordinance that gives that person 26 jurisdiction. That’s why you have to be careful about what activities are dealt by whom. I’ve seen 27 ethics ordinances where if there is a violation of the ethics ordinance by an employee, it’s referred 28 to HR. Now it’s in the city manager’s world. If it’s a violation by a boards and commissions 29 member or council member, then it goes to the ethics review commission. That’s one way they 30 dealt with the tension between internal and external matter. I think ethics policies are fine. I think 31 what the Council has adopted here is fine. The question is, is it achieving the results your 32 community wants? If the answer is no, then something more is required. You may not need to go 33 as far as San Antonio has gone and incur the cost they have, but you may want to do something 34 more than this. 35 36 Holl – In those communities who chose to go beyond the state statutes, what was their reason? In 37 cities that have a structure or mechanism outside of city council to review those things, are those 38 primarily cities that have their own ordinances in addition to 171? 39 40 Bojorquez – I’ll answer the second question first. A city that would have an ethics review 41 commission that’s because they adopted an ordinance setting forth some rules and they wanted a 42 body to administer it. Just last week in El Paso, the mayor and each council member gets to appoint 43 their member to the board of ethics. Some say that’s too political. In the City of Bastrop, Texas 44 that I’m also helping, they only have a three member ethics review commission and it’s appointed 45 by the entire city council. The second question – what was the impetus that led them there? I’m 46 not going to be any help there, because it’s all over the board. The little town of Wimberly, there

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1 was no city there in the past to behave badly. They wanted to have the openness and transparency 2 to avoid problems in the future. In other cases, what I’ve seen more often is case by case, they 3 adopted ordinances restricting this or that. I’ve seen communities that say, we understand state 4 law and we get it; we know the DA is out there looking, but that’s not good enough for us; we 5 want something tight. I dealt with a board of ethics where the chairman is now being charged with 6 reviewing their ordinance; he was a retired Rear Admiral and he had gone to Annapolis. He asked, 7 Alan what’s the code? A cadet shall not lie, cheat or steal or tolerate those that do. Why do we 8 need a 40 page ordinance, when that was good enough for us back in Annapolis? Once we got 9 into the details, he understood why more specific rules were helpful. Is a police officer stealing 10 when they accept a free meal from a restaurant? To me, that’s not clear. I bet that’s happening at 11 cities all across the state; police officers and firefighters getting comped meals a lot. Does that 12 make them unethical? Are they likely to perform their services differently than if they paid for 13 their meal? I’ve seen no indication that it would. But that one ethics commission was not having 14 any of it. We don’t like the way it looked; we don’t want restaurateurs to feel pressured to do that; 15 we pay our officers enough to buy their own meals. So the whole “cadet shall not lie, cheat, steal 16 or tolerate those who do” doesn’t fit that scenario. And while I don’t think you can’t ever craft an 17 ordinance that would fit every scenario, you can hit on the big themes and then fill in those holes 18 with training and professional standards that let folks know that “yeah, maybe I could do it, but I 19 shouldn’t do it. It’s not going to look right; it doesn’t feel right. 20 21 The janitor’s wife’s mutual fund scenario is why I’m always going to recommend that if y ’all do 22 this, make sure you have a waiver clause; make sure there’s a way to get out of the ethics rule; a 23 procedure for doing that. Because sometimes the rule will make no sense at all. You want to have 24 that bypass mechanism. It’s not a loop hole; it’s a process, because no ordinance that we can draft 25 is going to make sense; and if an ordinance is achieving a ridiculous result there should be some 26 type of a safety valve built in. You can ask city attorneys of Plano, San Antonio, and San Marcos 27 and they will tell you no matter how proud we are of our ordinance, there’s always a scenario that 28 comes up and puts us in a corner and we wish we had a way out. And that’s why San Antonio 29 does have a waiver in theirs. 30 31 Zoltner – For Denton or any other city that was trying to decide if state law was enough or did they 32 need to go beyond; you mentioned that the DA is out there watching. Is the actual history of a 33 prosecutor’s office relevant to make that decision? 34 35 Bojorquez – So, is the local DA’s history of enforcement a factor to be considered in deciding on 36 whether or not your city should just rely on state law or go and adopt your own rules? I’ve seen 37 DA’s change too many times. It used to be that DA’s did not want to be caught up in local politics. 38 The voters put this person there. What I’ve seen lately is DA’s across the state are actually looking 39 into these matters, and the Texas Rangers are investigating. It’s been tough when the local Texas 40 Ranger is actually in charge of doing that. The public integrity aspect of the business is reassigned 41 to the border. I’ve had to deal with those sort of things – asset allocation challenge. Whether the 42 Texas Rangers are going to spend their time dealing with a local ethics issue when they’ve got 43 bigger problems and mandates coming from above to deal with. And the DA is the same way. 44 45 It’s an old mantra from my municipal court prosecution days. The process is the punishment. If 46 you go to trial for a speeding ticket and you get off usually your prosecutor is going to say, well I

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1 don’t care. I still made them show up; they had to take two days off work. Oh well, I bet they’re 2 not going to speed here anymore. Being investigated by the Texas Rangers or taken before a grand 3 jury is enough to make most folks not do it again. Righteous people are not going to let themselves 4 get caught in that trap. Sloppy people are. The hard core actors that that think they are above it 5 all, nothing is going to change them and not ethics ordinance is going to deter them. 6 7 I have council members right now who I represent who’s family own big chunks of property; and 8 while they’ll do the proper thing and “abstain” from deliberations at the dais, when the vote comes 9 up they are really still behind the scenes at city hall gathering as much data and influencing the 10 process as much as they can so that their family can maximize their return on this development 11 deal. And there is no amount of ethics rules that is going to change this person. And the voters put 12 them there not once, but twice. 13 14 Alexander - The DA and Texas Rangers are likely to only be involved in a case where there is a 15 criminal statute. They are not going to investigate if it’s simply a violation of a policy. 16 17 Bojorquez – they don’t care about your local rules much. Though I have seen a DA take a city’s 18 ethics ordinance and try to bootstrap that into a state law violation. And I thought it was a very 19 tortured interpretation. What does our personnel policy have to do with your investigation of a 20 state law offense? But I’ve seen them do it against someone in city management. It was 21 uncomfortable for me because I disagreed on their approach. One thing they do care about – 22 there’s been times when a citizen hates the outcome they are getting from city hall, so they file an 23 ethics complaint at city hall triggering the ethics ordinance. They go and file a complaint with 24 DA, and they go to the media. Which is the unofficial third enforcement arm. I try to guide the 25 city through those scenarios and I get calls from the DA’s office saying, I know you are looking 26 into all those complaints. You go ahead and police your ethics ordinance. We’re asking you not to 27 touch the state law stuff. Because we don’t want you questioning witnesses about things that we’re 28 going to be questioning in a criminal context. We don’t want cross contamination. So we’re being 29 told by the DA not to investigate. So my response from Council is, we do what the DA says. We’re 30 not going to bite off a fight with the DA, so we are going to decline. That’s why it’s another good 31 idea to have something in the ethics ordinance to abate or temporarily suspend any kind of ethics 32 review if you know a criminal action is being investigated elsewhere. I’ll go back to the notion of 33 an ethics review board reviewing what is, in essence, an open meetings act violation. The 34 legislature gave us a process for that. Let that run its course. It is what it is. You focus on what 35 the legislature did not do. That’s my recommendation. 36 37 Eaton – Where does Section 145 fit in all of that, with the reporting of financial statements? Should 38 that fall in there as well? 39 40 Bojorquez – I think you could, but it is not required. Just because the state has put you in the 41 business of collecting and storing these forms and sometimes rendering them back to the state, I 42 don’t think you have to do that. I see where it would make sense to do so because you listed these 43 other things. That’s like me telling my client, you must follow the law. They already had that 44 requirement to do that. Me telling them didn’t really add anything other than maybe educational 45 component. I still know don’t know that this gives anyone at the city of Denton the authority to 46 police these things. Does state law achieve the results you want? What’s lacking? Is it education,

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1 is it enforcement, or does the state law not go far enough. For those who are convinced state law 2 doesn’t go far enough, or they think no one is enforcing state law, then you can create your own 3 provisions that are as tight, or tighter than state law. If you’re going to do that, there’s a resource 4 allocation challenge, but y ‘all can meet it. With 145, I think it’s an option, it’s not required. 5 6 Mulroy – What do other like cities do in initiating newly elected council members and boards and 7 commissions in regards to ethics training? 8 9 Bojorquez – Some cities have an in person training session; some have a video tape. A lot of cities 10 view new member orientation as being a task for TML, NCTCOG, or someone else to do and 11 spend the money for them to get their training that way. Others take it on in-house. It’s amazing 12 how you can google certain ethics complaints about newly elected officials not taking ethics 13 training. What people are really referring to is the required open meetings/open records training, 14 which is another state law requirement. 15 16 Mulroy – Aaron, what does the City of Denton do as far as the introductory tutorial to city council 17 members or boards and commission appointees? 18 19 Leal – With respect to all appointed boards and officials, especially the P&Z and ZBA, that do 20 have final decision making authority, we conduct separate orientation with them. One of the topics 21 discussed is ethics. As far as new member orientation for the Council members, the City 22 Attorney’s office has our own, in addition to the City management’s orientation. And ethics is 23 covered in the orientation itself. We try to get to the laws that most commonly get implicated 24 while they are serving. Which is the conflict of interest, and nepotism. We also offer them 25 documents to read to more fully know about ethics. 26 27 Langley – As Aaron mentioned, the City Manager’s office always has orientation. Most of our 28 new members go to TML Newly Elected Officials Orientation, and they have a series of sessions 29 that they go through. 30 31 Ramsay – I found your comments on trust really interesting, and this may be a bit of a side issue, 32 but what have you seen cities do in an effort to increase trust from citizens. 33 34 Bojorquez – the thing I see is moving toward more transparency. Which is really more of an open 35 records open meetings thing. It’s a response to that notion that decisions are being made at city 36 hall and we the electorate don’t know why; we don’t know what. So even though they could be in 37 executive session more often, they’re not. Even though they could withhold some records, they’re 38 not. I see cities big and small spending more and more on technology; for laser fiche to upload 39 data to the web where people don’t even have to file open records requests. They can search for a 40 lot of it themselves, and the city doesn’t even track that they were there. That’s a little more 41 expensive, but I see a lot of that. Partly because I see newly elected officials coming in on a 42 transparency platform. You have to realize what that really means. Often the city, in my 43 experience, is fine with the records being sought. It’s the process of doing it. Large cities are 44 creating whole new sites, or aspects to their site just to push more data out there. I don’t see a lot 45 of ethics reform. 46

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1 Eaton – The way the 10% reads – it says 10% of the persons gross income from the previous year. 2 Does the person have to receive 10% the prior year from that business entity and then the conflict 3 of interest comes into question? Or are they looking at the current time? 4 5 Bojorquez – My understanding is your gross income the previous year. If more than 10% of that 6 came from this entity, then when that entity comes before you the following year, 171 is triggered 7 and you are prohibited. 8 9 Alexander – What about a project you might be voting on from which you got no income because 10 the project didn’t exist last year. Now you’ve got a project that you’re working on and you still 11 haven’t had any income yet, so you can still cast your vote on that project without violating 171. 12 Is that not the case? 13 14 Bojorquez – I think it’s the case of it involves real estate. You’ve got the $2,500 threshold. It’s 15 an either or. Whether it’s a plat issue or anything else, if you own $2,500 worth of that real estate 16 you’ve got a 171 conflict, even if it didn’t generate any income the previous year. 17 18 Rivers – What if your property is next door and the project you’re voting on increases the value of 19 the property you own, and there’s no transaction happening today or next year. This project is 20 going to make this land more valuable and I’ll sell it in ten years. That income isn’t realized, but 21 the value goes up. Some of those types of thing s have come up around here recently. It probably 22 doesn’t violate anything in here, but it doesn’t look good to the community. Maybe I’m not getting 23 money today, but I might down the road and that’s where we’re getting into. 24 25 Bojorquez – If it affects your property different than it affects your neighbor’s property, then there 26 is an argument that 171 does kick in. Because you own property that is valued at more than $2500, 27 and you’re voting on something next door that’s going to affect your property more than another, 28 therefore you should file the affidavit and abstain. To cover that type of thing the Attorney 29 General’s office used to use the 200 foot rule, in which case yours would be triggered. You’re not 30 voting on your property, you’re voting on the property next door, but yours is going to be affected 31 different than the public at large, therefore abstain. 32 33 Rivers – So abstaining, in general, is abstaining from the conversation? 34 35 Bojorquez – I think what it means is discussion at the dais; voting at the dais. And I would say 36 don’t go grab the podium and try to influence from it there. What I wish people would do is stop 37 talking about it all together at city hall. Don’t go back to the city manager’s office and talk about 38 it; don’t go back to Planning and talk about it. It says abstain from participation. But there are 39 really no opinions going that far. 40 41 Alexander – What if we, in Denton, added language in an ethics ordinance that clarified that 42 participation means more than voting. Participation means being actively involved in discussions 43 or considerations or lobbying for approval of x,y, or z. 44 Bojorquez – As a city staffer in other cities, I would appreciate that. Just because I see the pain on 45 the city planner’s face, or the deputy city manager’s face when they’re having to deal with 46 questions from a council member about property that’s clearly covered by 171. And that council

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1 member does everything right during council meetings and says, whoops that’s my issue, I gotta 2 go get some coffee. But behind the scenes they are bugging staff nonstop trying to either get 3 information or they’re trying to put their thumb on the scale. I don’t think state law gives us an 4 answer for that, so I caution people to go above and beyond so people don’t think we’re doing self- 5 dealing. That’s exactly the kind of thing an ethics ordinance would take care of. And your staff 6 would probably appreciate it because that gives them an out when they are feeling pressured by 7 their bosses to cooperate when they don’t feel right about doing so. 8 9 Eaton – Are these affidavits blanket. Do you have to sign a separate affidavits for each one? 10 11 Bojorquez – I think you can file one affidavit and identify what the interest is and what it’s a 12 conflict with. If it changes, you’d want to file a new one. 13 14 Glenn – I think we are having a good discussion about what we could see and what could happen, 15 but I think we should go back to our initial charge and decide as a committee what exactly we 16 should be doing here. If we should be adding this language to the Charter or if we should just be 17 adjusting the language to do the ordinance; instead of getting into the weeds of exactly what it 18 should say. 19 20 Mulroy – At some crossroads, we’ll have to decide if we want to amend the Charter or change the 21 language; and then recommend that an ordinance be written or not. And then with that 22 recommendation we can be proscriptive of what we think should be included; item x,y and z and 23 here’s some specifics that need to be addressed. We will have an opportunity in a narrative form 24 to forward to City Council what we perceive as a rough playing field and how it could be smoothed 25 out in an ordinance. But that would be beyond our original charge of what do we want to do with 26 the Charter. So we would take care of the Charter, we have the latitude to make a recommendation 27 on the ordinance and what it could contain. 28 29 Sullivan – To me the charge says to revise the current provisions, to replace with alternative ethics 30 provisions. Is that not asking us to get into the weeds? Is that telling us to add this language? Joe 31 what do you see it as. 32 33 Mulroy – I’m looking at the “whether”. It doesn’t say go out and change it. Whether and in what 34 manner. To consider and advise “whether”. The Charter language as we’ve been advised, you 35 want to be careful with it. You’re not going to write something that is going to be overly 36 burdensome, that you have to come back and rewrite every two years. We just need a platform. 37 Alan has suggested we keep the Charter minimum, but we can open the door for council. We can 38 say you “shall” write an ordinance. Beyond that we can make a recommendation of what it should 39 include, but the Charter language, we would keep that mean and lean. We can say we think you 40 have everything you need right now as written to operate on an ethical basis and reprimand 41 anybody that doesn’t comply with that. You can make the case of do nothing. The reason for 42 empaneling a group of diverse citizens is to hash it out. Whatever we recommend, Council has to 43 vote whether to put it on the ballot in November. So it has to be meaningful, practical, acceptable 44 and sustainable politically with the community. Somehow your sense of trust in public officials 45 has been forfeited and squandered. We need to find a way to open the door to transparency and 46 expectations of behavior from your elected appointed officials. Rebuild that trust. You can write

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1 an ordinance 100 pages long with lots of fine print, but if you have the wrong people elected, they 2 will find a way to circumvent whatever letter of the law you have. But we have to respond 3 politically to the fact that the trust has been dissipated. The community is going to want more than 4 us saying “we’re leaving the charter alone”. We have to come back and deliver something to the 5 community to show that they’ve been heard. 6 7 Sullivan – What I’m hearing is like the auditor position, “you must hire an auditor. Are we being 8 asked to say you must have an ethics ordinance and now go do it, and expect a city council who 9 doesn’t want to take it upon themselves to do it to begin with; are we going to trust that they are 10 going to follow through and actually come up with an ordinance? 11 12 Mulroy – the upheaval that caused this committee to be formed is the lack of trust. We have to 13 have a vehicle that helps build that trust. 14 15 Holl – Are we really dealing with an issue of content or an issue of mechanics? Is it that the law 16 as written doesn’t do enough to address ethics? Or is it that there is a corporate disregard? 17 18 Eaton – I don’t think it’s very clear. I don’t feel like people understand the scope. 19 20 Alexander – My personal preference would be to write the leanest and cleanest charter provision 21 we could and still achieve our goal. Which might be to simply remove those existing provisions 22 in Article 14 because they’re already there and they’re going to be there regardless. But under the 23 current climate in Denton we should be careful about taking that approach. I’m leaning toward 24 leaving those provisions intact and adding that there will be an ethics ordinance and it will be the 25 responsibility of the Council to establish it. 26 27 Zoltner – We haven’t had much direction from council at this point. We don’t need to amend the 28 Charter for them to go to work on it. 29 30 Mulroy – we can add one sentence to the charter language to go to the voters “you shall” have an 31 ethics ordinance. 32 33 We are addressing an environment more than technical language. You’re not representing a 34 council member any longer, you’re representing the community. The community wants a 35 demonstration that ethics is going to be put back in place as important. We can do that by adding 36 the one sentence and then making a recommendation of what that ordinance at a minimum should 37 contain. Now, will an ordinance be subject to change every two years; yes. We don’t have to 38 decide that tonight. We can use Alan’s experience. It’s an environment that we need to address. 39 40 Bland – How serious is the problem? How do we restore the good old days. 41 42 Urbina – From the standpoint of the State guidelines vs. what we have currently, where is the 43 strength? Should we bump up to the state guidelines? We also want someone to oversee this. Is 44 Denton weaker or stronger? 45

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1 Bojorquez – I think what you have on the books in Denton is weaker. The State rules addressed 2 what most people are concerned with most of the time. You may have an enforcement problem. 3 Sometimes it’s a matter of convenience. 4 5 Mulroy – I suggest that if we have any written questions following the meeting, we will get them 6 to Alan. If we find we need to have more conversation, we could do a conference call if we desire 7 to do it. We’ll have access to Alan, or he can come up for another meeting. 8 9 Alan appreciate you driving up. You’ve been a great resource. 10 11 4. Concluding Items. 12 13 A. Scheduling of next meeting(s). 14 15 After discussion regarding spring break, it was decided that the next meeting would be on March 16 15, 2017. 17 18 5. Adjourn. (Committee Chairperson) 19 20 Meeting was adjourned at 9:00 p.m.

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