Ethics commissioners, city attorney spar over dismissed complaints

Members of the City Ethics Commission spent hours Tuesday night passionately arguing with the city attorney over complaints that weren’t even in front of them. One day before the meeting, City Attorney Sylvia Borunda-Firth dismissed two ethics complaints against the mayor and four city representatives after concluding the commission lacked jurisdiction to hear them since they alleged violations of the Texas Open Meetings Act and not a specific violation of city ordinance. Commission Chair Stuart Schwartz vehemently disagreed. “To conclude that we don’t have authority I think is very wrong,” he said. “We are not to decide criminal matters, but I do believe there is jurisdiction for us to take up the matter.” Firth explained the complaints filed by Jud Burgess and David Aviles on December 19 and 20, 2016, respectively, failed to describe the city ordinance the council members allegedly violated and instead centered on a possible violation of state law and therefore, the city ethics commission had no business hearing the case. Mayor Oscar Leeser and City Representatives Cortney Niland, Lily Limon, Peter Svarzbein and Jim Tolbert are accused of walking in and out of meetings with advocates of Duranguito neighborhood residents seeking to convince city officials to spare the area of demolition to make way for a $180 million arena. Surveillance video obtained by ABC-7 shows representatives entering and leaving city hall during the meeting on December 16, 2016. Four days later, the four city representatives voted to remove Duranguito as a possible location for the arena. City representatives Niland and Limon told ABC-7 last week they were aware of Texas Open Meetings Act rules mandating there not be a quorum of government officials converging outside posted meetings and therefore, were careful to avoid it. However, conspiring to avoid a quorum by walking in and out of meetings –what is called a “rolling quorum” — is also a violation of the law. District Attorney Jaime Esparza has referred the case to the Texas Rangers for investigation. Members of the commission told Firth a possible criminal violation of the Texas Open Meetings Act could mean there was an ethics violation, too. “They tie in completely,” Schwartz pressed. Ethics Commission Member Adolpho Telles agreed. “The fact that somebody tried to pull a group together without having a quorum is unethical. Maybe it’s not a criminal act, but maybe it’s an ethical violation,” he said. “Violations of the Texas Open Meetings Act are not for this group to decide,” Firth insisted. Schwartz was also frustrated by Firth’s decision to not bring in an independent attorney to even consider whether the complaints should have gone to the Ethics Commission before she dismissed them. As per the ethics ordinance, she also had the option to refer the case to a 3-member panel of the commission to decide if the claims should be brought to the full commission but Firth said she found the forms so lacking in specifics, she saw no reason to forward them even to a reduced panel for consideration. Schwartz took exception with the wording used by Firth to dismiss the complaints saying her letters could be interpreted by a lay person to mean the claims of potentially unethical behavior caused by circumventing a quorum cannot be heard by the ethics commission. “It leads them to believe that they have no right to appear before us because you left it out of these letters.” Stuart said, calling them “only half of the story.” “Absolutely not,” said Firth. “That’s how I read it,” replied Schwartz. “I chose my words carefully,” added Firth. “You chose your words legally,” finished Schwartz. Firth said it would have been inappropriate for her to rewrite the complaints to make them fit the criteria to be presented to the commission. However, if the complainants file the form again citing a specific violation of a city ordinance, Firth explained, the matter could be different. She would recuse herself, bring in outside counsel and refer the case to the commission. In the end, commissioners unanimously agreed to work with the City Attorney’s Office to improve the ethics complaint form and also agreed to clarify the timeline that specifies when complaints must be reviewed and forwarded to the commission. Last week, commissioners said they expected to hear from Firth about the Burgess and Aviles complaints in keeping with a 20-day calendar period. Firth said her office interpreted it to mean 20 working days. She explained city hall was closed for 10 days during the holidays so workers would’ve been forced to work during that time to meet a deadline of 20 calendar days. The commission agreed to amend the ordinance to specify it refers to working days.