An Ethics Overview
Ethical Issues Facing Municipal Judges and Officials
Ross Fischer
Seguin City Attorney
205 N. River
Seguin, TX 78155
(830) 401-2775
This paper is excerpted from “Beyond the Smell Test: Ethics in Land Development Permitting” by Alan J. Bojorquez and Ross Fischer, originally presented at the 11th Annual Land Use Planning Conference, April 12-13, 2007, in Austin, Texas.
INTRODUCTION
Municipal courts handle more cases annually than any other type of court in Texas[1]. It should come as no surprise then that in fiscal year 2007 municipal courts generated $685,793,685.00.[2] For better or for worse, both state and local governments have found themselves increasingly relying on revenue generated by fines and costs assessed by courts of limited local jurisdiction. As courts consider methods for ensuring efficiency, there is no shortage of vendors seeking to sell products to cities and their courts – products arguably designed to increase efficiency, output, or both. Examples range from court management software to red light cameras to collection services and so on. Cities and courts, traditionally concerned with municipal police powers and the enforcement of ordinances, are being forced to assess a growing array of services and the corresponding sales pitches. Additionally, with the advent of the court technology fund[3] and the court security fund[4], local courts have resources at their disposal for use in court enhancement. Dealing with these issues means ensuring that the relevant ethical standards are met as public entities engage in private business decisions. This paper is designed to be broad overview of the ethical considerations facing public officials and members of the judiciary.[5]
GIFTS, TRAVEL, MEALS & LODGING
Public officials, their counsel, and those seeking to influence public business should be aware of the statutes governing the giving and receiving of gifts, meals, travels, and lodging.
Title 8 of the Texas Penal Code sets forth offenses against public administration. The Penal Code creates four separate offenses that prohibit an individual from attempting to unlawfully influence a public official: Bribery[6]; Coercion of Public Servant or Voter[7]; Improper Influence[8]; and Offering Gift to Public Servant[9]. The law also criminalizes certain behavior by public officials, to wit: Acceptance of Honorarium[10] and Gift to Public Servant by Person Subject to His Jurisdiction.[11]
However, most officials and their counsel find themselves asking what they are allowed to receive. The answer to this question is found, in part, in Penal Code 36.10, which lists the exemptions to the established prohibitions. A public servant may accept the following:
- A fee prescribed by law to which the public servant is entitled or for which he give legitimate consideration in a capacity other than as a public servant;
- A gift conferred on account of a pre-existing relationship;
- A benefit required to reported on the official’s Personal Financial Statement or on a campaign finance report;
- A political contribution;
- A gift, award or memento required to be reported by a registered lobbyist;
- An item with a value of less than $50 (but not cash);
- Food, lodging, transportation, or entertainment lawfully reported by either the donor or donee.
CANONS OF JUDICIAL CONDUCT
The Texas Code of Judicial Conduct sets forth the relevant standards of professionalism for judges in the State of Texas. This paper will address the canons that are relevant when judges, or their staff, find themselves the target of a sales solicitation.
The canons prohibit a judge (or judge’s family member residing in their household) from accepting a gift, bequest, favor, or loan, except in certain circumstances.[12] The exceptions generally include acceptance of legal resources by publishers, attendance at bar-related activities, the acceptance of gifts on traditional gift-giving occasions, and the acceptance of loans from lending institutions in the regular course of business.[13] The canon stresses the importance of ensuring that any gifts or loans received by a judge or judge’s family member are commensurate with the occasion and relationship, and could not be perceived as intended to influence the judge’s performance of official duties.
Additionally, the canons urge judges to avoid impropriety and the appearance of impropriety in all of the judge’s activities.[14] Judges are required to comply with the law and encouraged to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judicial system.[15]
Ethics Ordinances
Municipalities may choose to pass ordinances regulating the conduct of city officers, and those who lobby city hall. These restrictions may mirror or go beyond the requirements of state law. These regulations may take the form of charter provisions, ordinances, resolutions, or policies. In enacting ethics ordinances, remember that city officials retain their constitutional rights, such as the right to free speech,[16] and the right to privacy.[17] However, courts have recognized the authority of cities to impose certain restrictions on these freedoms for the purpose of effectuating good government.
As has often been noted, written codes are helpful, but they are not enough if the goal is to maintain the public trust. Enacting ethics codes is simply the first step in a long process that moves government officials and the organization from mere compliance toward a commitment to integrity. Only then can the public be sure that good intentions are transformed into performance that promotes trust.[18]
Local lobbying or ethics ordinances cover a wide range of topics, including: political activity by city employees; who is required to register as a lobbyist; registration requirements and fees; which officials or staff are subject to lobby restrictions; conflicts of interest for board members and staff; financial and ethical disclosures; nepotism; the acceptance of gifts or honoraria; enforcement by local ethics review boards; and penalties for violating the ordinance.
Conflicts of Interest
Many municipal ethics issues revolve around conflicts of interest problems. Often, these issues are born out of a conflict of interest relating to personal financial gain, employment or special consideration for family members. Texas has a statute that governs conflicts of interest as they pertain to local public officials.[19] The general purpose of the statute is to prevent public officials (e.g., city council members, members of a planning and zoning commission)[20] from using their positions for hidden personal benefit and for the benefit of their relatives.
The Texas Local Government Code prohibits a local public official from knowingly participating in a vote or decision on a matter involving a business entity in which the official has a substantial interest if it is reasonably foreseeable that an action on the matter would confer an economic benefit on the business entity.[21] If there will be a special economic effect, the statute requires the official to file an affidavit stating the nature and extent of the interest before a vote or decision on any matter involving the matter.[22] The affidavit must be filed with the official record keeper of the governmental entity (e.g., city secretary).[23] In addition to filing an affidavit, the public official is required to abstain from further participation in the matter.[24] Where a council member is disqualified from voting, the number of members is reduced prior to determining whether any required majority or super-majority is achieved.[25] If the official fails to abstain, any action is voidable only if the measure would not have passed without the vote of the person who had a conflict.[26] A person has a substantial interest if, at the time when the governmental body takes up the matter, the person:
(1)owns 10% or more of the voting shares of the business;
(2)owns either 10 % or more, or $15,000 or more of the fair market value of the business;
(3)receives more than 10 % of the person's gross income from the business; or
(4)has an equitable interest in real property with a fair market value of $2,500 or more.[27]
A public official is also considered to have a substantial interest in a matter if a person related to the official in the first degree by consanguinity (blood) or affinity (marriage), has a substantial interest in the business or real property.[28] Thus, if the daughter of a local public official earns a small income, yet it is substantial to her as it exceeds 10% of her gross income, then her father, as a local public official, must file an affidavit before any action can be taken that will have a special effect on the business that employs the daughter.[29]
There are special procedural requirements for budgetary matters when a conflict of interest exists, beyond the filing of the affidavit and abstention. Members of the governing body must vote separately on any item involving a budget item specifically dedicated to a contract with a business entity in which the official has a substantial interest.[30] However, if a budget item does not include the specific day-to-day expenditures that involve the conflict, then no conflict exists unless the governmental body later approves the individual invoices.[31]
Compliance with the conflict of interest provisions is important as a violation of chapter 171 is a criminal act punishable as a Class A misdemeanor.[32] The Texas Supreme Court has said that the rule prohibiting public officials from conflicted transactions should be scrupulously enforced.[33]
OPEN MEETINGS
Lobbyists and Agents
Individuals who seek authorization and approvals from government decision makers have the same need to understand the Texas Open Meetings Act as those lawyers who represent government officials. A person who acts independently to urge individual members of a governing body to place an item in the board’s agenda or vote a certain way on an item on the agenda does not necessarily commit an offense, even if he or she informs particular board members of other members’ views on the matter. Although a person who is not a member of the governing body may be charged with violation of section 551.143 or 551.144 of the Open Meetings Act, under sections 7.01 and 7.02 of the Penal Code, that person does not commit an offense under these provisions unless, acting with intent, he or she aids or assists a member or members who knowingly act to violate the Open Meetings Act.[34]
DISCLOSURES UNDER LGC CHAPTER 176
Texas Local Government Code Chapter 176
Chapter 176 of the Local Government Code is a relatively new law that, in certain cases, imposes disclosure requirements on both local government officials and vendors seeking to business with local governmental entities. The law applies to most political subdivisions, including cities.[35] The law applies to members of a city council, and may be extended by the governing body to apply to an employee who has the authority to approve contracts on behalf of the city.[36]
When a public entity is considering contracting with a vendor, an officer is required to file a conflicts disclosure statement if the officer (or the officer’s family member[37]) has a relationship with the vendor that has resulted in more than $2,500.00 in taxable income during the preceding twelve-month period.[38] This amount does not include investment income.[39] An officer is also required to file the disclosure statement if the officer (or a family member) accepts gifts from the vendor with an aggregate total value exceeding $250.00 during the preceding twelve-month period.[40] However, the gift disclosure requirement does not apply to a gift given by a family member, to a political contribution, or to food, lodging, transportation, or entertainment accepted as a guest.[41] An officer shall file the disclosure statement within seven (7) business days of becoming aware of the facts that require disclosure.[42]
Chapter 176 requires a vendor to file a conflicts of interest questionnaire if the vendor has a relationship with an officer (or officer’s family member) that has resulted in more than $2,500.00 in taxable income in the preceding twelve months, or if the vendor has given the official (or a family member) gifts with an aggregate value exceeding $250.00 during that same time period.[43] A vendor must file the questionnaire not later than the seventh business day after the later of the following: (1) the date that the vendor begins discussions or negotiations to enter into a contract, or submits a response to a bid request; or (2) the date that the vendor becomes aware of a existence of a relationship or donation of a gift.[44] Just as with an officer’s disclosure statement, a vendor questionnaire is to be filed with an entity’s records administrator, and failure to file constitutes a Class C misdemeanor.
CONCLUSION
As municipalities and their courts deal with increased caseloads and increased financial responsibilities, it is likely that public officials, judges, and court personnel will be forced to deal with entreaties from private service providers seeking to sell products to the court. As officials weigh these services, they should always bear in mind the ethical standards to which the law holds them. These guidelines are designed to ensure the integrity of the institutions and individuals charged with serving the public.
This paper is presented for educational purposes only and in no way should be considered to constitute legal advice.
1
[1] “Texas Judicial System Annual Report Fiscal Year 2007”, Office of Court Administration.
[2] Id at 55.
[3] See Code Crim. Pro. 102.0172.
[4] See Code Crim. Pro. 102.017.
[5] This paper is composed primarily of excerpts from “Beyond the Smell Test: Ethics in Land Development Permitting” by Alan J. Bojorquez and Ross Fischer, which was originally presented at the 11th Annual Land Use Planning Conference, April 12-13, 2007, in Austin, Texas.
[6] Tex. Penal Code 36.02
[7] Tex. Penal Code 36.03
[8] Tex. Penal Code 36.04
[9] Tex. Penal Code 36.09
[10] Tex. Penal Code 36.07
[11] Tex. Penal Code 36.08
[12] Tex. Code of Judicial Conduct, Canon 4(D)(4).
[13] Id.
[14] Tex. Code of Judicial Conduct, Canon 2.
[15] Id.
[16]Price v. City of San Marcos, 744 S.W.2d 349 (Tex. App.--Austin 1988, writ denied).
[17]City of San Antonio v. Rankin, 905 S.W.2d 427 (Tex. App.--San Antonio 1995, no writ) (ethics ordinance required annual financial disclosure statements).
[18] Randy G. Pennington, From ethics to integrity: How to Make Doing What’s Right a Way of Life, Management Exchange, (TCMA, December 1995).
[19] See Tex. Loc. Gov’t Code § 171.001. This statute preempts the common law of conflict of interests and establishes the standard for determining the existence of a conflict of interest for local public officials in Texas. The provisions of chapter 171 are cumulative of municipal charter and ordinance provisions.
[20] See Tex. Loc. Gov’t Code § 171.001 (defining “public official”); Op. Tex. Att’y Gen. DM-309 (1994) (stating that members of a planning and zoning commission are local public officials). The conflicts of interest statute does not apply to 4B Economic Development Corporations. See Op. Tex. Att’y Gen. No. JC-338 (2001).
[21] See John Mixon et al., Texas Municipal Zoning Law § 11.907 (3d ed. 1999).
[22] See Tex. Loc. Gov’t Code § 171.004(a).
[23] See id. § 171.004(b).
[24] See id. § 171.004(a).
[25] See Hannan v. City of Coppell, 583 S.W.2d 817, 818 (Tex. Civ. App.-Dallas 1979, writ ref’d n.r.e.).
[26] Tex. Loc. Gov’t Code. § 171.006.
[27] See Tex. Loc. Gov’t Code §171.002.
[28] See Tex. Loc. Gov’t Code § 171.002.
[29] See Op. Tex. Att’y Gen. No. JC-0063 (1999).
[30] See Tex. Loc. Gov’t Code Ann. § 171.005.
[31] See Tex. Att’y Gen. LO-98-112 (1998).
[32] See Tex. Loc. Gov’t Code Ann. § 171.003(b).
[33] See City of Edinburgh v. Ellis, 59 S.W.2d 99, 100 (1933).
[34] Id.
[35] Tex. Loc. Gov’t Code Ann. § 176.001(3).
[36] Tex. Loc. Gov’t Code Ann. § 176.005(a).
[37] For the purpose of this law, “family member” means a person related within the first degree of consanguinity or affinity. Tex. Loc. Gov’t Code Ann. § 176.001(2).
[38] Tex. Loc. Gov’t Code Ann. § 176.003(a)(2)(A).
[39] Id.
[40] Tex. Loc. Gov’t Code Ann. § 176.003(a)(2)(B).
[41] Tex. Loc. Gov’t Code Ann. § 176.003(a-1).
[42] Tex. Loc. Gov’t Code Ann. § 176.003(b).
[43] Tex. Loc. Gov’t Code Ann. §176.006(a).
[44] Tex. Loc. Gov’t Code Ann. §176.00(a-1).