Lawsuits, Legal Fees, and County Attorney Conflicts in El Paso Ethics Complaints Battle
In the midst of <a href="http://www.elpasotimes.com/publiccorruption" target="”_blank”">a big corruption probe</a>, a pair of back-and-forth ethics
complaints filed with a nearly toothless ethics commission in El Paso
doesn't seem like much. But it does sheds some light on how much El
Paso government is about the players rather than the citizens. And it
touches on some issues that are important everywhere, including the use
of lawsuits to cripple ethics commissions, legal fees for ethics
defense, local government attorney conflicts, and city-county relations.<br>
<br>
<b>The Background</b><br>
During this year's city council election campaign, one candidate asked the county
judge (effectively the county mayor, not an actual judge; this
particular county judge is a former member of the city council) for
copies of his opponent's job application from two years before. The
county judge asked the county attorney whether the job application was
a public document, and the county attorney said it was. The job
application listed the opponent's address as outside the district she
was elected to represent in 2007, and the candidate used this fact to
try to discredit his opponent. The opponent said that she had just
moved, and used her old address.<br>
<br>
The opponent filed a complaint against the county judge with the county
ethics board, arguing that he had interfered with the campaign
(apparently, county officials are not allowed to participate in
campaigns). The county judge said that the county attorney approved his
turning over of the document. On its face, it looks like the complaint
would not have gone anywhere.<br>
<br>
But then <a href="http://www.kvia.com/Global/story.asp?S=10324949" target="”_blank”">the
county judge filed an ethics complaint</a> against the candidate who'd
filed a complaint against him. He asserted that she had accepted an
illegal campaign contribution. The candidate said that she'd included
it in her report, but had not put it in the bank and, in fact, had
asked the state ethics commission if it were legal. Again, on its face
it looks like this complaint too would not have gone anywhere. Just
politics.<br>
<br>
But then <a href="http://www.elpasotimes.com/news/ci_12550062" target="”_blank”">the
county judge filed a lawsuit</a> seeking a temporary constraining order
to prevent the county ethics board from hearing the council candidate's
complaint against him. <a href="http://www.elpasotimes.com/ci_12515695" target="”_blank”">A
temporary restraining order was made</a>, but then yesterday <a href="http://www.elpasotimes.com/news/ci_12550062" target="”_blank”">a visiting state
judge determined</a> that the ethics board could hear the complaint and
that the county attorney could advise it, even though the county judge
was advised by the county attorney's office on the matter central to
the complaint.<br>
<br>
One down for the county judge, but it turns out that <a href="http://www.elpasotimes.com/news/ci_12550062" target="”_blank”">he filed another
lawsuit</a> seeking a permanent injunction on the ethics board.<br>
<br>
In addition, the county judge's attorney accuses the ethics board of
being a political body, and is <a href="http://www.elpasotimes.com/ci_12515695" target="”_blank”">hoping to have the complaint heard</a>, if
it all, by a new ethics commission to be formed later this year (see an
earlier <a href="http://www.cityethics.org/node/681" target="”_blank”">blog post</a>).<br>
<br>
According to <a href="http://m.elpasotimes.com/elpasotimes/db_10658/contentdetail.htm%3Bjsess…; target="”_blank”">another
article</a> in the El Paso <span>Times, </span>the
county judge is seeking to have the county pay his legal fees and then
seek reimbursement from the council candidate. But the county judge
refused to agree to reimburse the county if the ethics board found him
in violation. So it looks like the county Commissioners Court (yes, not
a court at all, but a council) will not agree to pay the legal fees.<br>
<br>
<b>Lawsuits to Cripple Ethics
Commissions</b><br>
There are various sorts of lawsuits used to cripple ethics commission.
One type, including this one, seeks to prevent a complaint from being
heard, usually for jurisdictional reasons. Sometimes, of course, there
is a serious issue concerning jurisdiction. Sometimes ethics
commissions go beyond their area of jurisdiction, often out of a lack
of understanding of what government ethics is.<br>
<br>
But sometimes the filing of such a suit is just a way to delay
consideration of a complaint or put into question the the complaint's
validity. It can also be used as a weapon against an ethics commission
that lacks a budget to defend against such a suit. This places the
decision to go ahead with the complaint effectively in the hands of the
council, which must authorize the money to defend against the suit. If
the council sides with the respondent, it can kill the complaint
without becoming directly involved in the matter.<br>
<br>
Another type of lawsuit is the SLAPP suit (SLAPP stands for Strategic
Lawsuit Against Public Participation), which in an ethics case is
usually filed against the complainant. <a href="http://en.wikipedia.org/wiki/Strategic_lawsuit_against_public_participa…; target="”_blank”">Wikipedia
defines SLAPP suits</a> as suits "intended to intimidate and silence
critics by burdening them with the
cost of a legal defense until they abandon their criticism or
opposition." The goal is not to win the suit, but to prevent speech or
action, in this case, to prevent the complaint from going forward. I
will try to write a blog post on ethics-oriented SLAPP suits soon.<br>
<br>
<b>Legal Fees for Ethics Defense</b><br>
Legal fees for those accused of ethics violations is an important issue
when writing an ethics code. Officials always want this included, at
least when an ethics commission finds that there is no ethics code
violation. What is odd in this situation is that the county judge
wanted fees to be paid for him even if he was found to have violated
the ethics code.<br>
<br>
Here's the City Ethics Model Code provision. Note that it includes a
dollar limit, to prevent an official from overspending.<br>
<br>
213.14. Legal Fees: The city will pay
reasonable
attorney's fees, up to a limit of $_______, with respect to an Ethics
Commission proceeding, not including a request for an advisory opinion,
if the Ethics Commission does not find the respondent to have violated
this code [or, in the alternative, "finds that a complaint was filed
with the knowledge that it is without foundation in fact."] <br>
<br>
The alternative reflects the fact that many reasonable complaints do
not lead to findings of violations for many reasons, including
settlements, technicalities, quorum problems, and even threats of
lawsuits against the commission or its members. Using the actual
finding of a violation as the standard forces the local government to
pay legal fees for officials who have violated an ethics code.<br>
<br>
A related issue is whether the complainant should be required to pay
legal fees. Here, certainly, if the complaint is not frivolous, or at
least if probable cause is found, I don't believe that a complainant
should be required to pay legal fees.<br>
<br>
<b>Local Government Attorney
Conflicts</b><br>
Once again, there is what appears to be a clear government attorney
conflict in this matter. When one party to a dispute says he depended
on the county attorney's advice, how can an ethics board turn to the
same attorney's office for advice in making determinations with respect
to that party? It may be expensive to look elsewhere for counsel, but a
decision made on the advise of conflicted counsel will not be trusted
by the public.<br>
<br>
Robert Wechsler<br>
Director of Research-Retired, City Ethics<br>
<br>
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