Lawsuits, Legal Fees, and County Attorney Conflicts in El Paso Ethics Complaints Battle

In the midst of a big corruption probe, 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.

The Background
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.

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.

But then the county judge filed an ethics complaint 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.

But then the county judge filed a lawsuit seeking a temporary constraining order to prevent the county ethics board from hearing the council candidate's complaint against him. A temporary restraining order was made, but then yesterday a visiting state judge determined 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.

One down for the county judge, but it turns out that he filed another lawsuit seeking a permanent injunction on the ethics board.

In addition, the county judge's attorney accuses the ethics board of being a political body, and is hoping to have the complaint heard, if it all, by a new ethics commission to be formed later this year (see an earlier blog post).

According to another article in the El Paso Times, 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.

Lawsuits to Cripple Ethics Commissions
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.

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.

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. Wikipedia defines SLAPP suits 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.

Legal Fees for Ethics Defense
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.

Here's the City Ethics Model Code provision. Note that it includes a dollar limit, to prevent an official from overspending.

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."]

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.

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.

Local Government Attorney Conflicts
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.

Robert Wechsler
Director of Research-Retired, City Ethics

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