The Fort Worth Council, Mayor, and City Attorney Deal Irresponsibly With a Conflict Situation

Anonymous

Mon, 08/23/2010 - 10:53

City Related

Updates: August 24 and 26, 2010 (see below) 
 
For those who, like me, believe that neither a mayor nor a local
legislative body nor a city attorney has any business getting involved in the government
ethics process, here's an example you can use of the mess they can make when they
do get involved.

First, here is the background of the Fort Worth situation. According to
<a href="http://www.star-telegram.com/2010/08/19/2414687/fort-worth-leaders-rule…; target="”_blank”">an
article in the Star-Telegram last Thursday</a>,
in late June the city's Ethics Review Committee (ERC) determined that three
members of an Air Quality Study Committee (AQSC) who work for major
drilling companies had a conflict of interest (for more on the
decision, see <a href="http://www.star-telegram.com/2010/06/24/2292054/fort-worth-ethics-panel…; target="”_blank”">another
Star-Telegram article</a>, from June). According to <a href="http://www.fortworthgov.org/citynews/default.aspx?id=73776" target="”_blank”">a
city government press release dated March 22</a>, the ten-member AQSC was
formed this year "to address recent air-quality studies regarding the
short- and long-term health effects of emissions from gas facilities.
The committee is charged with ensuring that data regarding air quality
are comprehensive, specific to Fort Worth and sufficient to answer
residents’ questions. The committee will evaluate and make a
recommendation to the City Council on the qualifications of proposed
companies and a scope of work for an air-emission study." 
 
In addition to three gas company representatives, the AQSC also has one
environmental representative, one representative
of the local area council of governments, and two advisory members from
state and federal environmental agencies. The other five members are
listed as "citizens." 
 
Mistake #1: Overturning the ERC Ruling 
According to the Star-Telegram article, on Thursday the council
unanimously overturned the ERC ruling. The mayor said, "It is a typical
and standard procedure to ask citizens who are subject matter experts
... to serve on our boards. We want to protect those individuals who
volunteer their expertise." 
 
This is a clever way of covering both the council's responsibility for the problem, and the council's conflict in considering whether to overturn the ERC's decision concerning the problem. The council appointed the AQSC members, and it should have recognized its
conflict and taken responsibility for the problem. That would have been the best and most honest way of protecting the AQSC members. 
 
In fact, the ERC's decision was actually a
criticism of the council, not of the AQSC members. The council did not
follow the ethics code in appointing the members and, therefore, it
should have apologized to the members and taken full responsibility for
the mistake. Instead, it voted unanimously to cover up its mistake and effectively placed the blame on the ERC. The council's
responsibility for the problem is described in <a href="http://www.star-telegram.com/2010/08/22/2418084/fort-worth-ethics-inqui…; target="”_blank”">a
Star-Telegram editorial</a> that appeared yesterday. 
 
What I love about the editorial is this sentence: "it has been pointed
out that the Star-Telegram was
represented similarly on an advisory committee a few years back when
the city was considering limits on newspaper racks on sidewalks. It
wasn't OK then, either. Shame on us." 
 
The council's mistake was exacerbated by the fact that some council members earn
money from gas leases (including relationships with at least two of the companies that appealed the ERC ruling) and, therefore, look like they're giving preferential treatment to the gas companies pleading their case before them. 
 
Mistake #2: Overturning the Decision at a Special Meeting 
Another mistake was overturning the decision at a special meeting, for
which I could find no agenda or minutes on the city website, and for
which members of the ERC itself were not given notice, <a href="http://www.fwweekly.com/index.php?option=com_wordpress&p=5987&Itemid=48…; target="”_blank”">according
to the Fort Worth Weekly</a>. 
 
Mistake #3: Replacing the ERC Members 
According to the same article, the mayor called the ERC members and
told them they were being replaced. What's interesting is that,
according to one ERC member, the call came the morning of the special
council meeting and yet the ERC members, whose decision was to be
considered, were not told about the meeting. 
 
Mistake #4: Changing the City's Policy on Advisory Board Members with Conflicts 
The fourth mistake is that tomorrow the
council will suddenly be considering changes to <a href="http://library.municode.com/index.aspx?clientId=10096&stateId=43&stateN…; target="”_blank”">the
ethics code</a> (Part II, Ch. 2, Art. VII), after years of ignoring it
(see <a href="http://www.cityethics.org/node/724" target="”_blank”">an earlier blog post
of mine</a>). One of those changes is to allow members of task forces
to serve even if they have a conflict of interest. 
 
Here is the explanation given for <a href="http://www.fortworthgov.org/council_packet/mc_review.asp?ID=14085&counc…; target="”_blank”">the
proposed amendment</a>:<ul>
The City Council regularly creates task forces to make
recommendations to the City Council regarding a variety of issues that
are highly technical, specialized and complex. The members
of these task forces are citizens who are volunteering their time in
response to a request by the City Council for assistance and service. 
 
In order for such task forces to be able to address these issues in
any substantive and effective way, members of these task forces often
need to have personal or professional knowledge, insight and expertise
with respect to the issues before their
committees. Therefore, it is sometimes inevitable that a
member of one of these boards will be an employee of, or have some
other remunerative relationship with, a business or industry interest
that is, in some way, tied to the issues before the task
force. In fact, these professional connections typically are
not only known by the City Council at the time of the member's
appointment to the board, but are actually prerequisites or a primary
basis for the appointment.</ul>
As I explained in my last blog post, it is not inevitable that
members of task forces will have conflicts of interest, because there
are many alternative solutions to this problem. It would have made the
argument look far worse if the drafter had responsibly considered
alternatives rather than declared conflicts "inevitable." 
 
Mistake #5: Letting the City Attorney Compete with the ERC on Ethics Advice 
It's worth noting that the council requested the city attorney to
prepare amendments to the code of ethics only last Thursday, and they
were already up on the website on Saturday. It's also worth noting that
another amendment would give the city attorney the authority "to review
all [ethics] complaints and to notify the Ethics Review Committee if he or she
believes that the conduct asserted in the complaint was undertaken in
reliance upon an opinion of the City Attorney." In addition, such
reliance would create "prima facie evidence that the person complained
against did not violate the Code of Ethics." 
 
In other words, the city attorney wants to give himself the authority to be
an alternative to the ERC in giving ethics opinions and, in addition,
the city attorney wants to be the sole individual who can determine whether his own
client's conduct was taken in reliance upon the city attorney's
opinion. This creates a serious conflict situation, and allows
officials to choose whether they'll get a more sympathetic opinion
from the unknown ERC or from their very own counsel. 
 
The bottom line: we have the council making ethics decisions
about its own appointees and refusing to take responsibility for a conflict situation it created; we have the mayor firing ERC members when they do
something he disapproves of (after doing almost nothing for years); and we have
the city attorney recommending that he effectively takes over the ERC's
most important role, that of independent ethics advisor — to those he represents. With the city's top officials ignoring their own conflicts like this, how can they be expected to fix the ethics code and make decisions regarding ERC decisions? 
 
This is why
officials should have no role in the ethics process other than passing
ethics laws. 
 
Update: August 24, 2010 
<a href="http://www.star-telegram.com/2010/08/19/2414687/fort-worth-leaders-rule…; target="”_blank”">An informal poll by the Star-Telegram</a> asked the question, "Do you think that gas company employees should serve on city committees that oversee their industry?" 21% chose the answer, "Why not? They know the business." 79% chose the answer, "Never - a conflict of interest, plain and simple." This is an ongoing issue that has apparently undermined the public's trust in Forth Worth's government. In government, expertise is extremely important. But in government ethics, public perception is the most important thing. The council should recognize this and decide not to make an exception from the ethics code for task forces. 
 
Update: August 26, 2010 
According to <a href="http://www.star-telegram.com/2010/08/25/2425399/fort-worth-mayor-counci…; target="”_blank”">an editorial in yesterday's Star-Telegram</a>, the Fort Worth council met on Tuesday and did only one of the things that had been proposed: it filled three open spots on the Ethics Review Committee. This is long overdue. Crises shouldn't be required to fill vacant seats on an ethics commission. Two long-serving members will be replaced only after two pending cases are over. 
 
The council acknowledged that it did not have time to study the proposed changes to the ethics code, nor was there time for public review and comment. The mayor said the changes wouldn't be considered until after the Ethics Review Committee could give the council its advice. 
 
Robert Wechsler 
Director of Research-Retired, City Ethics 
 
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The Fort Worth Council, Mayor, and City Attorney Deal Irresponsibly With a Conflict Situation

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