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Minutes - Regular Meeting - 8/11/1997 August 11, 1997 The Ethics Review Commission of the City of Round Rock, Texas met on Monday, August 11, 1997 at 7:00 p.m. in the City Council Chamber, 221 East Main Street. ROLL CALL: Those members present were Commissioners Dennis Graffious, Robert Griffith, Karla Newberry, Frederick Ort, Ray Shannon, and Berry Sullivan. Carol Chafin was absent. Also present were Assistant City Manager/City Secretary Joanne Land and Special Counsel for the Ethics Review Commission Barney Knight. CONSIDER PRELIMINARY HEARING TO DETERMINE WHETHER OR NOT REASONABLE GROUNDS EXIST FOR THE COMMISSION TO HOLD A FINAL HEARING ON THE COMPLAINT FILED BY DENNIS GRAFFIOUS AGAINST ROD MORGAN. (Tabled 7/23/97) Chairman Sullivan-noted that the Commission met on Thursday, August 7, 1997 to review the Ethics ordinances. He added that Barney Knight, Special Counsel for the Commission, helped the Commission understand the legalities of the ordinances. Chairman Sullivan said the Ethics Review Commission is "not a court of law we are reviewers of the claim. We have access to minutes of earlier meetings, we have copies of the ordinances that we have all been studying and we have legal counsel provided by the City. Chairman Sullivan asked Commissioner Graffious to temporarily step down from the dais, "in respect of the process and purpose of the Commission." Commissioner Graffious complied. C Ethics Review Commission August 11,1997 Page 2 Chairman Sullivan explained that Commissioner Graffious had previously served on the Ethics Review Commission. During the time that Commissioner Graffious was not on the Commission he filed the claim that is on the agenda. Since then he was appointed to fill a vacancy on the Ethics Review Commission. Chairman Sullivan pointed out that the Commission has the option of "either conducting a preliminary hearing where both parties can be questioned by the Commission or Counsel. They can determine that the claim is very similar to one that the Commission had reviewed earlier and take no action or to accept the recommendation from Counsel." Commissioner Griffith asked, "what is the exact recommendation from Counsel?" Barney Knight outlined the recommendation that he had provided to the Commission. (Exhibit"A) Commissioner Griffith asked for a rebuttal from Dennis Graffious. Dennis Graffious was sworn in by Joanne Land. Dennis Graffious said, "I am Dennis Robert Graffious and as brought up before, I was a member of the Commission that first heard the case. I would like apologize to Councilman Morgan on how long this has dragged on. At the time that I was on the Commission, I had some concerns that were not fully expanded on the whole process of what occurred. I felt it was our duty as a Commission to get to the full bottom of the story. At that time we looked at the advise of Counsel and decided to focus strictly on whether or not Councilman Morgan was acting as a paid agent for Barbara Forsythe. EXHIBIT "A" 8/11/97 MEMORANDUM TO: Ethics Commission City of Round Rock FROM: Barney Knight DATE: July 16, 1997 RE: Graffious complaint against Rod Morgan My review and comments with respect to each of the complaint; stated in the July 7, 1998 complaint filed by Dennis Graffious against Councilmember Rod Morgan are advisory opinions and recommendations only. The complaint consists of the completed, standard complaint form and the letter attached, dated July 3, 1997, signed by Mr. Graffious. The following discussion, conclusions and recommendations, are based on the in-depth facts developed and publicly presented during the recent proceeding, and my view that Councilmember Morgan may not be again prosecuted for an identical, alleged violation. In my opinion, neither of such additional complaints alleges a violation that the ;\ Commission would be precluded from hearing as a result of the earlier acquittal, i.e. different elements are present and different fact findings will be required to establish whether or nota violation occurred. It will be necessary for the Commission to separately consider each of the stated complaints at a preliminary hearing held for such purpose. Complaint No. 1. Violation of Subsection C(1)(a)(i). Discussion. Given the applicable facts and the wording and intent of C(1)(a)(i), it is my opinion that the facts as alleged, or as known, do not support a complaint under this subsection. Subsection C(1)(a)(i) is applicable only to an official accepting a gift or benefit with actual or constructive knowledge that such is given for the purpose of influencing an action to be taken by such official. This subsection covers only those circumstances in which a person provides, and the official accepts, such benefits in exchange for favorable action or inaction, i.e. a bribe. Conclusion. This subsection is not applicable to the facts and circumstances present. Recommendation. I recommend the Ethics Commission: (1) dismiss this complaint pursuant to § G(7)(e) and afford the complainant ten (10) days in which to revise and resubmit the complaint; or (2) find that no reasonable grounds exist to support a complaint under Subsection C(1)(a)(i). • Exhibit A 8/11/97 Complaint No. 2. Violation of Subsection C(2)(b). Discussion. There are a number of facts and legal precedents that, in my opinion, make this subsection inapplicable to the present case. First, Subsection C(2)(b) requires the .official to "knowingly or intentionally use" his/her official position for gain or advantage. It is not the intent of this subsection to extend to preventing an official from being given more recognition, credence, etc. simply because someone is aware such person is an official. The mere fact that someone recognizes a person is an official does not equate to the official affirmatively using his or her official position. Second, the intent of this subsection is to prohibit use of public facilities and property for private business, and circumstances in which an official affirmatively uses, i.e. asserts a public position to obtain a benefit or advantage that would not otherwise be available. Third, Councilmember Morgan is licensed by the State of Texas as a realtor and such license authorizes him to provide such services to clients before the Planning Commission. But for Ordinance No. 2469 and his serving on the City Council, no law, regulation or standard limits such right. There are numerous cases effectively holding that a councilmember has no authority as a councilmember outside of a council meeting, except as provided in the charter or delegated by vote of the City Council, i.e. as a matter of law the Councilmember was not present at the Planning Commission in his official capacity as a councilmember. Fourth, the City staff advised the Planning Commission that the subdivision plat at issue fully complied with the City's ordinances and regulations. As a result, § 212.010, Loc. Gov't. Code, required the subdivision to be approved. Thus, the potential "gain or advantage" contemplated under this particular subsection, other than compensation to be provided by his brother, appeared to have been a legally required result, i.e. not a "gain or advantage" but a right established by law. There are simply no facts alleged to support a finding that the Councilmember affirmatively used his position as a councilmember, as opposed to that of realtor or brother of an interested party, to. gain a benefit or advantage. Conclusion. Neither the tape of the Planning Commission meeting nor any other evidence indicates that Councilmember Morgan affirmatively represented himself as a councilmember, referred to his office, etc., or requested any special action be taken, i.e. there is no evidence alleged or discovered to date to support the requirement that the Councilmember intentionally or knowingly used his official position for pecuniary gain or advantage. Any attempt to construe this subsection to prahibit, or apply to, all dealings in which another,party was simply aware of the official's position would result in a potentially harmful precedent and would also not be supportable in the law. Recommendation. I recommend the Ethics Commission find that no reasonable grounds exist to support a complaint under Subsection C(2)(b). Complaint No. 3. Violation of Subsection C(2)(e). Discussion. The second sentence of this subsection appears to be inapplicable. Memorandume- Graffious Complaint 2 Exhitit A 8/11/97 However, the first sentence may serve as the basis for an additional complaint. As does each subsection of Section 9.C., this subsection is written in a manner to cover an area or potential actions not covered by the other subsections. The first sentence is a fairly broad prohibition, provided that the official has a "direct financial interest" in the outcome. Based on the evidence in the earlier proceeding, the Councilmember appears to have participated in the decision.process at the Planning Commission. The question is, did the Councilmember have "a direct financial interest in the outcome of the matter under consideration". Conclusion. The complaint alleges facts that come within the apparent intent and scope of Subsection C(2)(e). The elements and facts at issue are different from those considered in the earlier complaint and such complaint is not precluded by the earlier acquittal. Recommendation. At the preliminary hearing, the Commission should consider the evidence previously presented, any statement made by the complainant and any response provided by Councilmember Morgan. The two primary issues should be as follows. (1) Did the Councilmember participate in the decision process by appearing, making and presenting arguments to the Planning Commission? (2) Did the Councilmember have a direct financial interest in the outcome of the issue before the Planning Commission? The specific facts alleged and as known raise an issue as to whether or not a "direct financial interest" as opposed to a remote, contingent or indirect interest existed, i.e. there was an existing lot; the lot owner was entitled as a matter of statutory right to subdivide the lot into two (2) lots as proposed; a future prospect existed for a decision by the owner to decide to build a second duplex on the additional lot; a future prospect existed that the owner would select Mr, Morgan's brother to build such second duplex; and a future prospect existed that, in such events, Mr. Morgan's brother would pay Mr. Morgan an additional fee. At the same time Mr. Morgan had some financial interest in the approval of the subdivision plat. Given the purposes of Ordinance No. 2469, only the Commission can determine the intent and meaning of the ordinance and whether or not that financial interest was "direct". A clear answer of "No" to either of the above questions should result in the Commission finding that no reasonable grounds exist to support a complaint under Subsection C(2)(e). If the Commission believes there may be reasonable grounds to support an affirmative answer to each of such questions, the Commission should set the date for a filial-hearing within-3C days from the date of the preliminary hearing. Memorandume- Graffous Complaint 3 Ethics Review Commission August 11,1997 y Page 3 Testimony during the final hearing led me to wonder if there was a possibility that there was some economic benefit that could be attained in the process concerning the division of the land because if Larry Morgan, Councilman Morgans brother, did a good job and later on down the road Barbara Forsythe decided to rebuild another home on that land that contract might be awarded to Larry Morgan again. I did not know if a commission would then possibly be paid to Councilman Morgan. Since I was off the original Commission I had to make a decision. Do I follow through with this as an ex- commission member or let it stop? I felt that I had to bring the complaint forward. The first complaint said, "Was Councilman Morgan acting as a paid agent for Barbara Forsythe?" We the Commission could have wrap it up as one whole broad complaint but that was not done. The Commission voted and we voted rightly that Councilman Morgan didn't act as a paid agent for Barbara Forsythe. But we didn't address the whole issue and that is what is before the Commission now. I would like the Commission to focus on the basic part of the document that says, 'acted as an agent for someone other than himself or his immediate family and that he participated in decision making process where he had direct financial interest in the outcome.' If the Commission decides to hear this and if the testimony shows that there is a potential that Larry Morgan, the brother of Councilman Morgan, has an opportunity indirectly or not later on in the future to build a second duplex there is that possibility that Councilman Morgan then acted, and not necessarily with the intent to harm the citizens of Round Rock,but acted inadvertently to a single person and not to the citizens as a whole." Ethics Review Commission August 11,1997 Page 4 Commissioner Shannon said, "I spent a lot of time reading not only the whole transcript of the previous hearing but also the recommendation from our counsel Mr. Knight. I don't see any difference in what we are addressing here than what they addressed before. We are splitting hairs and as the complainant mentioned, I dori t think it's our purpose or authority to project what something might happen because of the result of something that did happen. We are talking months down the road and maybe years. It just seems like we are here for the same purpose that was already heard. The results that happened would have happened anyhow. That subdivision or plot would have been approved. It met all the standards. The 30 days had passed so it was going to be automatically approved. Since that was going to be approved whether there was or wasn't the financial thing is kind of a new point." MOTION: Commissioner Shannon moved that the complaint be dismissed in its entirety. Commissioner Griffith seconded the motion. Commissioner Shannon added that Mr. Knight's recommendation was on point one and two was very clear that there is nothing there substantially to consider. Commissioner Shannon said, that on point three, "if we get down and really start micro-splitting hairs we might find something but I personally don't see it." Chairman Sullivan clarified that Boardmember Shannon moved that there is no significant difference from the earlier action and this item. Commissioner Shannon added, "I don't think as a Board we can sit and try to project what a person might have thought or been thinking at the time. The fact is that Ethics Review Commission August 11,1997 Page 5 the subdivision or plat was going to be approved whether Councilman Morgan stood up and said something. If a person mistakenly stands up and says something with no intent then...after reading and re-reading the complaint and spending many hours going over the complaint I just don't see the value of it." Mr. Knight said, "If I might insert something just for clarity and consistence with the ordinance. As I understand the motion, what the motion is under the ordinance itself,is simply that if you find there is insufficient evidence to require a final hearing." Commissioner Shannon said, "absolutely and dismiss the complaint." Chairman Sullivan asked Boardmember Shannon to restate his motion for the record. RESTATED MOTION: Commissioner Shannon moved that the complaint before the Commission against Councilman Morgan be dismissed in its entirety. Commissioner Griffith noted that his second still stands. Commissioner Griffith noted that if the Commission supports the motion the vote will be "yes" and if not the vote will be "no". VOTE: Ayes: Commissioner Griffith Commissioner Newberry Commissioner Ort Commissioner Shannon Commissioner Sullivan Noes: None Ethics Review Commission August 11,1997 Page 6 Absent: Commissioner Chafin Commissioner Graffious did not vote because he had stepped down from the dais before the proceedings. ACTION: The motion carried with 5 ayes and 0 noes. Chairman Sullivan said there is no other business or items on the agenda. Commissioner Graffious said "I am satisfied with the finding that we have today and have no problems with it whatsoever. Councilman Morgan the process went to long but I felt that I had to bring it to a close. It was not meant to be vindictive to you but I felt that I had that duty bound honor to do it. I support the way you presented it to the Commission everything you had and am pleased to be on this Commission and associated with the Council and with you." Chairman Sullivan concluded that the Ethics Ordinance had already accomplished its mission and purpose by the last action but this action made it clear. ADTOURNMENT: There being no further business, the meeting adjourned at 7:30 p.m. Respectfully submitted, Christine Martinez Assistant City Secretary