As used in this rules of procedures, the following words and
phrases have the meaning ascribed to them in this section, unless
the context requires otherwise or more specific definitions set forth
elsewhere in this code apply
Representation or appearance “before the City”
means before the city council; before a board, commission, or other
city entity; or before a city official. Representation “before
the city” does not include representation before a board where
members of that board are not wholly appointed by the city council.
The days of the week, Monday through Friday, in which the
administrative offices of the city are open for business.
The City of Gonzales.
“Code of ethics,” “ethics code,”
or “this code” means the city’s code of ethics,
its amendment(s), and/or enhanced definitions.
An individual who has filed a sworn complaint with the city
secretary as provided herein.
Includes all information held by the city that is not available
to the public under the Texas Public Information Act and any information
from a meeting closed to the public pursuant to the Texas Open Meetings
Act, unless disclosure is permitted under the Open Meetings Act.
Includes the ethics code of the city and any applicable state
statutes that establish rules and regulations for elected and appointed
city officials.
Includes violations of any of those enactments.
A person acts intentionally, or with intent, with respect
to the nature of his or her conduct or to a result of his or her conduct
when it is his conscious objective or desire to engage in the conduct
or cause the result.
A person acts knowingly, or with knowledge, with respect
to the nature of his or her conduct or to circumstances surrounding
his or her conduct when he or she is aware of the nature of his or
her conduct or that the circumstances exist. A person acts knowingly,
or with knowledge, with respect to a result of his or her conduct
when he or she is aware that his or her conduct is reasonably certain
to cause the result.
The term “official” or “city official”
includes the mayor and members of the city council. Members of all
boards, commissions, committees, and other bodies created by the city
council pursuant to federal or state law or city ordinance, including
entities that may be advisory only in nature, who are appointed by
the mayor, the city council, or who are designated in the bylaws or
organization papers of the entity to serve on behalf of the city;
and board members of any entity who are appointed by the mayor or
city council to such board membership.
Includes any affirmative act (including the making of a recommendation)
within the scope of, or in violation of, an official’s duties
Includes information gathered or created by or on behalf
of the city, in the conduct of the city’s business, and under
the power and authority of the city as a political subdivision of
the state.
A person acts recklessly, or is reckless, with respect to
circumstances surrounding his or her conduct or the result of his
or her conduct when he or she is aware of but consciously disregards
a substantial and unjustifiable risk that the circumstances exist
or the result will occur. The risk must be of such a nature and degree
that its disregard constitutes a gross deviation from the standard
of care that an ordinary person would exercise under all the circumstances
as viewed from the actor’s standpoint.
A presentation of fact-either by words or by conduct-made
to induce someone to act. “Representation” does not include
appearance as a witness in litigation or other official proceedings.
An individual identified in a sworn complaint to have allegedly
violated the ethics code of the city.
(Ordinance 2020-25 adopted 11/16/20)
(a)
In accordance
with the Texas Constitution, the Texas Local government Code, the
city code, and the city charter, the city council has the powers and
duties specified in therein, and other powers and duties prescribed
by ordinance.
(b)
Composition
of the city council includes the mayor and each member of the city
council.
(c)
A member
of the city council shall recuse himself or herself from any case
in which, because of familial relationship, employment, investments,
or otherwise, his or her impartiality might reasonably be questioned.
A councilmember may not participate in official action on any complaint:
(d)
If the
number of councilmembers who are recused from a case is so large that
a council meeting cannot be convened to consider the complaint, the
mayor shall nominate a sufficient number of ad hoc members so that
the case can be heard. Ad hoc members must be confirmed by a majority
vote of the city council and serve only for the case in question.
(Ordinance 2020-25 adopted 11/16/20)
(a)
Jurisdiction.
The city council has jurisdiction to investigate and make findings
and conclusions concerning an alleged violation of the city’s
ethics code enacted from time to time by ordinance.
(b)
The city
council shall not consider any alleged violation that occurred more
than 180 days prior to the date of the filing of the complaint.
(c)
The city
council has the discretion to accept or decline consideration of an
alleged violation that has been resolved by the city manager, or by
a governmental agency or council with jurisdiction over the matter.
(d)
Powers.
The city council has the power:
(1)
To
establish, amend, and rescind rules and procedures governing its own
internal organization and operations, consistent with ordinances pertaining
to the ethics code;
(2)
To
meet as often as necessary to fulfill its responsibilities;
(3)
To
issue advisory opinions on behalf of the council;
(4)
To
request from the city manager the assignment of staff necessary to
carry out its duties;
(5)
To
review, index, maintain on file, and dispose of sworn complaints;
(6)
To
make notifications, extend deadlines, and conduct investigations,
both on referral or complaint;
(7)
To
compel the production of sworn testimony, witnesses and evidence;
(8)
To
recommend cases for prosecution by appropriate authorities and agencies;
(9)
To
enforce its decisions by assessing sanctions authorized by ordinance;
(10)
To
request the city attorney to provide an independent counsel to advise
and represent the council, when appropriate or necessary to avoid
a conflict of interest;
(11)
To
provide assistance in the training and education of city officials
with respect to their ethical responsibilities;
(12)
To
exercise such other powers and duties as may be established by ordinance.
(Ordinance 2020-25 adopted 11/16/20)
(a)
Filing.
Any person (including a member of the city council, acting personally
or on behalf of the council) who believes that there has been a violation
of the ethics laws may file a sworn complaint with the city secretary
to allege such violations. A complaint filed in good faith is qualifiedly
privileged. A person who knowingly makes a false statement in a complaint,
or in proceedings before the city council, is subject to criminal
prosecution for perjury or a private cause of action.
(b)
Assistance.
The city secretary shall provide information to persons who
inquire about the process for filing a complaint.
(c)
Form.
A complaint filed under this section must be in writing and
under oath and must set forth in simple, concise, and direct statements:
(1)
The
name of the complainant;
(2)
The
street or mailing address, the telephone number, and email address
of the complainant;
(3)
The
name of each person complained about;
(4)
The
position or title of each person complained about;
(5)
The
nature of the alleged violation, including, if possible, the specific
provision of the ethics code alleged to have been violated;
(6)
A statement
of the facts constituting the alleged violation and the dates on which
or period of time in which the alleged violation occurred; and
(7)
All
documents or other material available to the complainant that are
relevant to the allegation; a list of all documents or other material
relevant to the allegation and available to the complainant but that
are not in the possession of the complainant, including the location
of the documents, if known; and a list of all documents or other material
relevant to the allegation but unavailable to the complainant, including
the location of the documents, if known.
(8)
The complaint must be accompanied by an affidavit stating that the information contained in the complaint is either true and correct or that the complainant has good reason to believe and does believe that the facts alleged constitute a violation of the Ethics Code. If the complaint is based on information and belief, the complaint shall state the source and basis of the information and belief. The complainant shall swear to the facts by oath before a notary public or other person authorized by law to administer oaths under penalty of perjury. A complaint that is not sworn as required shall not be forwarded by the city secretary to the city attorney as provided in subsection (d) but shall be returned to the complainant. The complaint must state on its face an allegation that, if true, constitutes a violation of a law administered and enforced by the city council.
(d)
Review
by the City Attorney and Notification to the City Council and Respondents.
(1)
A copy of a complaint shall be promptly forwarded by the city secretary to the city attorney who shall review the complaint for compliance with the filing requirements of subsection (c) within five (5) business days of receipt from the city secretary. The city secretary shall notify the respondent(s) of a complaint filed. This notification is for information purposes only and does not trigger subsection (e) until a decision has been made to accept the complaint and forward to the city council for consideration.
(2)
If
the complaint alleges a violation of the city’s ethics code,
and substantially complies with the filing requirements, the complaint
shall be forwarded by the city secretary to the members of the city
council and the respondents within ten (10) business days after receipt
of the complaint from the city secretary. If the complaint does not
substantially comply with the filing requirements, the city attorney
shall return the complaint with a letter explaining the defects in
the complaint to the city secretary who shall return all information
to the complainant.
(3)
The
city secretary shall notify the respondent(s) of the resolution of
a complaint.
(e)
The respondent(s)
shall also be provided with a copy of the ethics code and shall be
informed:
(1)
That,
within ten (10) business days of receipt of the complaint, he or she
may file a sworn response with the city secretary;
(2)
That
failure to file a response does not preclude the City Council from
adjudicating the complaint;
(3)
That
a copy of any response filed by the respondent(s) will be provided
by the city secretary to the complainant, who may, within five (5)
business days of receipt, respond by sworn writing filed with the
city secretary, a copy of which shall be provided by the city secretary
to the respondent(s);
(4)
That
the complainant(s) or respondent(s) may request a hearing.
(5)
Upon
receipt, the city secretary shall forward the response to the city
attorney and the city council.
(f)
Frivolous
Complaint.
(1)
For
purposes of this section, a “frivolous complaint” is a
sworn complaint that is groundless and brought in bad faith or groundless,
has no basis in law or fact, and is brought for the purpose of harassment.
(2)
By
a vote of at least two-thirds (2/3) of those present, the council
may order a complainant to show cause why the council should not determine
that the complaint filed by the complainant against a respondent is
a frivolous complaint.
(3)
In
deciding if a complaint is frivolous, the council will be guided by
the Texas Rules of Civil Procedure, rule 13, and interpretations of
that rule, and may also consider:
(A)
The timing of the sworn complaint with respect to when the facts
supporting the alleged violation became known or should have become
known to the complainant, and with respect to the date of any pending
election in which the respondent is a candidate or is involved with
a candidacy, if any;
(B)
The nature and type of any publicity surrounding the filing of the
sworn complaint, and the degree of participation by the complainant
in publicizing the fact that a sworn complaint was filed with the
council;
(C)
The existence and nature of any relationship between the respondent
and the complainant before the complaint was filed;
(D)
Any evidence that the complainant knew or reasonably should have
known that the allegations in the complaint were groundless; and
(E)
Any evidence of the complainant’s motives in filing the complaint.
(4)
Notice
of an order to show cause shall be given to the complainant by the
city secretary, with a copy to the respondent, and shall include:
(5)
Before
making a determination that a sworn complaint against a respondent
is a frivolous complaint, the Council shall hold a hearing at which
the complainant may be heard; the complainant may be accompanied by
counsel retained by the complainant.
(g)
Confidentiality.
Ex parte communications by members of the city council are prohibited.
(1)
The
council shall not communicate any information about a pending sworn
complaint, including whether or not a complaint has been filed, to
any person other than the respondent, the complainant, and a witness
or potential witness identified by the respondent, the complainant,
or another witness or potential witness.
(2)
Information
otherwise confidential under this section may be disclosed by entering
it into the record of a formal hearing or city council proceeding.
(3)
Requests
for records pertaining to complaints shall be responded to in compliance
with the Texas Public Information Act and the Texas Open Meetings
Act.
(Ordinance 2020-25 adopted 11/16/20)
(a)
City
Attorney’s Office.
The city attorney’s office
shall perform the following duties:
(1)
Act
as legal counsel to the city council;
(2)
Receive
complaints and responses filed with the city secretary as set forth
above;
(3)
Review
complaints for legal sufficiency;
(4)
Request
additional information from complainant as needed; and
(5)
Issue
advisory opinions to city officials about the requirements imposed
by the ethics laws.
(b)
Independent
Counsel.
(1)
An
independent attorney, who does not otherwise represent the city, may
be appointed to serve as the independent counsel when a complaint
is filed relating to an alleged violation of the ethics laws by the
mayor, a member of the city council, or a candidate for city council.
(2)
When
a complaint is filed relating to an alleged violation of the ethics
laws by a city employee who is a department head or of higher rank,
the city attorney may recommend the appointment of an independent
counsel for that matter.
(3)
The
city attorney or city council may request the appointment of an independent
counsel for a particular case.
(c)
Exculpatory
Evidence.
The city attorney shall disclose to the city
council and provide to the person charged with violating the ethics
code evidence known to the city attorney tending to negate guilt or
mitigate the seriousness of the offense.
(Ordinance 2020-25 adopted 11/16/20)
(a)
Review
by City Council.
The city council will meet to review
the complaint, responses, replies to responses and any other information
it has requested be provided to assist in consideration of the complaint.
The council shall consider whether the facts of the case establish
a violation of any provision in the ethics laws, regardless of which
provisions, if any, were identified in the complaint as having been
allegedly violated. If the council finds that the complaint fails
to allege a violation of the ethics code when assuming all facts set
forth in the complaint to be true, the council may dismiss the complaint
without further proceedings.
(b)
Before
the council may find a violation of a particular rule, the respondent
must be on notice that compliance with that rule is at issue and must
have an opportunity to respond. Notice is conclusively established:
if the complaint alleged that the rule was violated; or if the council
or the city secretary provides the respondent with written notice
of the alleged violation and a ten (10) business-day period within
which to respond in writing to the charge.
(c)
Scheduling
of a Hearing.
Regardless of whether the complainant or
the respondent requests a hearing, the city council has discretion
to decide whether to hold a hearing.
(d)
Ex Parte
Communications.
It is a violation of this code:
(1)
For
the complainant, the respondent, or any person acting on their behalf
to engage or attempt to engage, directly or indirectly, in ex parte
communication about the subject matter of a complaint with a member
of the city council, or any known witness to the complaint; or
(2)
For
a member of the city council to:
(e)
Duty
to Cooperate.
All city officials and employees shall
cooperate with the city council and shall supply requested testimony
or evidence to assist it in carrying out its charge. Failure to abide
by the obligations imposed by this subsection is a violation.
(f)
Extension
of Deadlines.
(1)
A complainant or respondent who fails to meet a deadline to submit a filing with the city council may file a request to accept the late filing. The complainant or respondent must include within the request a statement of good cause for the council to grant the request. The council may grant a request to accept a late filing for good cause. Any extension given to a respondent pursuant to his or her request shall extend the deadline for the council to issue a decision under section 1-08 [section 9.508] by the amount of time granted.
(2)
The
council, under its own initiative or at the request of a respondent,
may defer consideration of a complaint if the respondent is under
investigation by any agency for the activity comprising the subject
matter of the complaint, until such time as the investigation has
concluded.
(g)
Timeliness
of Notices or Submissions.
When the code of ethics requires
a notice or other document to be submitted or otherwise given to a
person or to the city council, the requirement is met in a timely
fashion if the document is sent to the person or the council by first-class
mail or certified mail addressed with postage or handling charges
prepaid and it bears a post office cancellation mark indicating a
date within the time required to provide notice or to submit a document,
unless another method of submission is expressly required.
(Ordinance 2020-25 adopted 11/16/20)
(a)
All hearings
for removal from office and prohibitions shall be conducted in open
session, except that the city council may conduct a closed session
to get advice from its attorney pursuant to the Texas Open Meetings
Act.
(b)
Called
Special Meeting.
A special meeting shall be called to
hold the hearing to be held no earlier than fourteen (14) days subsequent
from the delivery of written notice and no later than ninety (90)
days after delivery of written notice, unless otherwise agreed to
by a majority of the city council and the individual subject to the
hearing.
(c)
General
Rules.
(1)
All
witnesses must be sworn and all questioning of witnesses shall be
conducted by the members of the city council. The city council may
establish time limits and other rules relating to the participation
of any person in the hearing. No person may be held to have violated
the ethics laws unless a majority of the city council so finds by
a preponderance of the evidence.
(2)
A member
of the city council who initiated or is the subject of the investigation
or hearing shall not sit at the dais and shall not participate in
deliberation or vote.
(3)
The
city council shall state the nature of the hearing and the allegations
to be considered.
(4)
Public
comments shall be allowed in conformance with established rules of
order and decorum for the city council.
(d)
Evidence.
The city council shall rely on evidence of which a reasonably
prudent person commonly relies in the conduct of the person’s
affairs. The council shall further abide by the following:
(e)
The Person
Charged (Respondent).
The person charged in the complaint
has the right to attend the hearing, the right to make a statement,
the right to present witnesses, and the right to be accompanied by
legal counsel or another advisor. They shall be provided a copy of
the results of the investigation, including any written testimony
acquired during the investigation. Only legal counsel to the person
charged in the complaint may advise that person during the course
of the hearing, but may not speak on his or her behalf, except with
the permission of the council. The time permitted for presentation
will be at the discretion of the council.
(f)
The Complainant.
The complainant has the right to attend the hearing, the right
to make a statement, and the right to be accompanied by legal counsel
or another advisor. Only legal counsel to the complainant may advise
the complainant during the course of the hearing, but may not speak
on behalf of the complainant, except with the permission of the council.
Witnesses may not be presented by the complainant, except with the
permission of the council. The time permitted for presentation will
be at the discretion of the council.
(Ordinance 2020-25 adopted 11/16/20)
(a)
Violation
of City Code of Ethics.
City council may on the affirmative
vote of a majority of the city council take any of the following actions:
(1)
Direct
further investigation;
(2)
Request
further information;
(3)
Vote
to enforce a penalty pursuant to the city code;
(4)
Vote
to bring an action in municipal court;
(5)
Take
a vote of censure; or
(6)
Upon
the affirmative vote of two-thirds of city council find that sufficient
evidence exists to merit removal of an appointee.
(b)
Written
Opinion.
The council shall issue a decision within ninety
(90) calendar days after the filing of a complaint. This deadline
shall be extended by any amount of time granted to a respondent pursuant
to a respondent’s request for additional time to respond or
to attend proceedings. The council shall state in a written opinion
its findings of fact and conclusions of law. The written opinion shall
either:
(1)
Dismiss
the complaint; or
(3)
If
the council determines that a violation has occurred, the opinion
shall identify in writing the particular rule or rules violated. If
the complaint is dismissed, the grounds for the dismissal shall be
set forth in the opinion. The failure of the council to comply within
the above time limits may result in the charge being dismissed for
want of prosecution. Prior to such dismissal, the complainant will
be given notice and an opportunity to request continuance of the action.
(c)
Notification.
Copies of the opinion shall be forwarded to the complainant,
the person charged in the complaint, the city attorney, and any member
of the city council who did not participate in the disposition of
the case. A copy of the opinion shall also be forwarded to the city
secretary, who shall make it available as authorized by law.
(d)
Recommendations.
A recommendation for criminal prosecution or removal shall be
forwarded to the appropriate authority.
(e)
Similar
Charges Barred.
If the complaint is dismissed because
the evidence failed to establish a violation of the ethics laws, the
city council shall not entertain any other similar complaint based
on substantially the same evidence.
(f)
Factors
Relevant to Sanctions.
(1)
General
violations. In deciding whether to recommend or impose, in the case
of a violation of the ethics laws, criminal prosecution and/or civil
remedies, the city council shall take into account relevant considerations,
including, but not limited to, the following:
(A)
The culpability of the person charged in the complaint;
(B)
The harm to public or private interests resulting from the violation;
(C)
The necessity of preserving public confidence in the conduct of local
government;
(D)
Whether there is evidence of a pattern of disregard for ethical obligations;
and
(E)
Whether remedial action has been taken that will mitigate the adverse
effect of the violation.
(2)
To
impose or recommend sanctions for a first violation of the ethics
code, other than a letter of notification, a letter of admonition
or a referral to training, the council must find by a preponderance
of the evidence that the person acted knowingly, unless otherwise
provided by this code.
(g)
Civil
Sanctions for Ethics Code Violations.
The following civil
remedies may be recommended or imposed by the city council which finds
that the ethics laws have been violated:
(1)
Disciplinary
Action.
City council members who engage in conduct that
violates the code of ethics may be notified, warned, reprimanded,
suspended, or removed from office in any manner authorized by law.
Disciplinary action under this section may be imposed in addition
to any other penalty or remedy contained in the code of ethics or
any other law;
(2)
Civil
Fine.
The city council may impose on a city official
who violates any provision of the code of ethics a fine not exceeding
five hundred dollars ($500.00).
(3)
Letter
of Notification.
The city council may issue a letter
of notification to a city official, when the council finds that a
violation of the code of ethics was clearly unintentional or inadvertent.
The letter must advise the person to whom it is directed of any steps
to be taken to avoid future violations.
(4)
Letter
of Admonition.
The city council may issue to a city official,
a letter of admonition when the council finds that the violation of
the code of ethics was minor and/or may have been unintentional or
inadvertent.
(5)
Letter
of Reprimand.
The city council may issue to a city official,
a letter of reprimand when the council finds that the person has intentionally
or knowingly violated the code of ethics.
(6)
Referral
to Ethics Training.
Upon finding of violation of the
ethics code, the city council may require a city official to attend
ethics training.
(h)
Reconsideration.
Within five (5) business days of receiving the final opinion
of the city council, the complainant or respondent may request the
city council to reconsider its decision. The request must be filed
with the city secretary. Within ten (10) business days after filing
with the city secretary, the city council shall review the request
for reconsideration. If the full and seated council grants reconsideration,
the council may then order further proceedings in accordance with
the provisions of this rules.
(i)
Council
Action.
City council shall dispose of the reconsideration
within ninety (90) calendar days of approving the reconsideration.
Failure to take action within specified time limits may result in
the charge being dismissed for want of prosecution. Prior to such
dismissal, the complainant will be given notice and an opportunity
to request continuance of the action.
(Ordinance 2020-25 adopted 11/16/20)
