Ordinance No. 11,562ORDINANCE NO. 11,562
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AMENDING CHAPTER 2 "ADMINISTRATION," ARTICLE VIII
"CODE OF ETHICS," DIVISION 1 "IN GENERAL," SECTION 2 -802
"DEFINITIONS"; DIVISION 2 "STANDARDS," SECTION 2 -803
"STANDARDS OF CONDUCT"; AND DIVISION 3 "PROCESS," SECTION 2-
806 "PROCESSING ETHICS VIOLATIONS" OF THE CODE OF
ORDINANCES OF THE CITY OF BAYTOWN, TEXAS, TO AMEND AND
ADD CERTAIN DEFINITIONS, TO ADD PROHIBITED CONDUCT AND TO
REVISE THE PROCEDURE FOR INVESTIGATING AND PROCESSING
ETHICS COMPLAINTS; CONTAINING A REPEALING CLAUSE;
CONTAINING A SAVINGS CLAUSE; AND PROVIDING FOR THE
PUBLICATION AND EFFECTIVE DATE THEREOF.
WHEREAS, the City Council of the City of Baytown has adopted a Code of Ethics to
govern the conduct of its officers, board members, and certain employees of the city while acting
in their official capacities in representing the City of Baytown; and
WHEREAS, the City Council of the City of Baytown is continually seeking methods for
ensuring the ethical conduct of its officers, board members, and certain employees while
providing certainty for those subject to and those administering the Code of Ethics; and
WHEREAS, the City Council of the City of Baytown wishes to make sure that the
process of enforcing its Code of Ethics is fair, reasonable, and predictable; and
WHEREAS, the City Council of the City of Baytown wishes to discourage frivolous or
baseless complaints that may adversely affect the reputation or finances of a city official subject
to the Code of Ethics; and
WHEREAS, the City Council of the City of Baytown wishes to ensure the integrity of its
Code of Ethics and the enforcement process; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That Chapter 2 "Administration," Article VIII "Code of Ethics," Division
1 "In General," Section 2 -802 "Definitions" of the Code of Ordinances of the City of Baytown,
Texas, is hereby amended to revise the definition of "city board" and to add the definition of
"investigating attorney," which said definitions shall read as follows:
CHAPTER 2. ADMINISTRATION
ARTICLE VIII. CODE OF ETHICS
DIVISION 1. IN GENERAL
Sec. 2-802. Definitions.
The following words, terms and phrases, when used in this article, shall have the
meanings ascribed to them in this section, except where the context clearly indicates a different
meaning:
City board shall mean the city council or a board, commission, task force, committee or
subcommittee of the city, whether elected, appointed, paid or unpaid, which has regulatory
authority or decision - making authority that is more than merely advisory.
Investigating attorney means a licensed attorney, who is appointed by the ethics
commission with the consent of city council, and who shall be responsible for processing a
complaint in the manner set forth in division 3 of this article.
Section 2: That Chapter 2 "Administration," Article VIII "Code of Ethics," Division
2 "Standards," Section 2 -803 "Standards of Conduct" of the Code of Ordinances of the City of
Baytown, Texas, is hereby amended to read as follows:
CHAPTER 2. ADMINISTRATION
ARTICLE VIII. CODE OF ETHICS
DIVISION 2. STANDARDS
Sec. 2 -803. Standards of conduct.
No city official shall:
(1) engage in conduct that would violate V.T.C.A., Local Government Code
§ 171.003;
(2) engage in conduct that would violate V.T.C.A., Local Government Code
§212.017;
(3) represent any person other than himself or the city, before the city board on which
the city official sits or over which the city official has appointment or budgetary
powers;
0
(4) disclose or use in an unofficial capacity, confidential information acquired in the
course of official duties, or engage in conduct that would violate Texas Penal
Code §39.06;
(5) while acting in his official capacity, grant or influence the granting of any special
consideration, advantage or favor to any person beyond that which is:
a. the general practice to grant or make available to the public at large;
b. the general practice in assisting other governmental entities;
C. the general practice in aiding or promoting the economic development of
the city; or
d. authorized through a variance, special exception or other similar exception
provided for in this code or by law;
(6) engage in conduct that would violate V.T.C.A., Penal Code §36.07;
(7) engage in conduct that would violate V.T.C.A., Penal Code §36.08;
(8) make use of staff, vehicles, equipment, materials or property of the City except in
the course of his official duties or as duly authorized by the proper city official, or
engage in conduct that would violate V.T.C.A., Penal Code §39.02(a)(2);
(9) participate in the appointment, vote for appointment, or discussion of a person to
a city board if such person is related to the city official in the first degree by
consanguinity or affinity as determined under V.T.C.A., Government Code ch.
573;
(10) use his position, directly or indirectly, to effect the city employment status of a
person related to the city official in the first degree by consanguinity or affinity as
determined under V.T.C.A., Government Code ch. 573;
(11) receive a pecuniary gain in any sale or lease to the City of any real estate when
the interest in real property from which the pecuniary gain is received was
obtained under circumstances which would lead a reasonable person to expect
that the City intended to purchase, condemn or lease said real estate;
(12) misrepresent facts or the source of facts or recommendations brought before the
city council, any board or commission or to any other person while acting in his
official capacity; or
(13) fail to respond to a request for information or documentation by the ethics
commission or the investigating attorney acting on behalf of the ethics
commission, when the requested information is relevant to the ongoing
investigation.
Section 3: That Chapter 2 "Administration," Article VIII "Code of Ethics," Division
3 "Process," Section 2 -806 "Processing ethics violations" of the Code of Ordinances of the City
of Baytown, Texas, is hereby amended to be entitled "Processing and investigating a complaint'
and to read as follows:
CHAPTER 2. ADMINISTRATION
ARTICLE VIII. CODE OF ETHICS
DIVISION 3. PROCESS
Sec. 2 -806. Processing and investigating a complaint.
(a) The ethics commission shall have the primary responsibility for investigations under this
article. The ethics commission shall, with the consent of city council, designate an
investigating attorney to process a complaint.
(b) The investigating attorney shall investigate a complaint and within a time prescribed by
ethics commission rules, shall submit a preliminary analysis and recommendation to the
ethics commission. The investigating attorney shall make one of the following
recommendations both orally and in writing to the ethics commission:
(1) Enforcement shall not be taken and complaint should be dismissed. If
recommending that no enforcement action be taken, the investigating attorney
shall set forth the reasons for the recommendation.
(2) A determination hearing should be held. If recommending that a determination
hearing be held, the investigating attorney shall prepare a probable cause report,
which shall contain a summary of law, facts, evidence gathered during the
investigation, and the reasons for the recommendation. The evidence may include
exculpatory and mitigating information, of which the investigating attorney has
knowledge, as well as hearsay, including declarations of investigators or others
relating to the statements of witnesses or concerning the examination of physical
evidence.
(3) A referral to another agency is appropriate. If the ethics commission concurs
with this recommendation, it shall direct the investigating attorney to refer the
information to the appropriate agency and the ethics commission shall take no
further action.
(c) The ethics commission is not bound by the recommendation of the investigating attorney,
and may vote to dismiss the complaint, set the complaint for a determination hearing, or
(d)
refer the complaint to another agency, regardless of the investigating attorney's
recommendation.
In determining whether to dismiss a complaint, the ethics commission shall consider the
following:
(1) Frivolous complaint. The ethics commission shall dismiss a complaint that it
determines is frivolous. In determining whether a complaint is frivolous, the
ethics commission shall consider the following factors:
a. Whether the complaint is made in bad faith;
b. Whether the complaint is brought for the purpose of harassment;
c. Whether the complaint has any basis in fact or law;
d. The timing of the complaint with respect to when the facts supporting the
alleged violation become known or should have become known to the
complainant, and with respect to the date of any pending election in which
the city official is a candidate or is involved with a candidacy, if any;
e. The nature and type of any publicity surrounding the filing of the
complaint, and the degree of participation by the complainant in
publicizing the fact that a complaint was filed with the ethics commission;
f. The existence and nature of any relationship between the city official and
the complainant before the complaint was filed;
g. If the city official is a candidate for election to office, the existence and
nature of any relationship between the complainant and any candidate or
group opposing the city official;
h. Any evidence that the complainant knew or reasonably should have
known that the allegations in the complaint were groundless; and
i. Any evidence of the complainant's motives in filing the complaint.
(2) Ex parse communications. The ethics commission may dismiss a complaint if the
complainant engages in an improper ex parse communication with a member of
the ethics commission. An improper ex parse communication for purposes of this
subsection is one made outside of a meeting of the ethics commission, exclusive
of that provided for in section 2 -805.
(3) Refusal to cooperate. The ethics commission may dismiss a complaint if it
determines that the complainant refuses to cooperate in the investigation or
E
refuses to provide requested information to the ethics commission or to the
investigating attorney in a timely manner.
(e) A determination by the ethics commission to dismiss a complaint shall not prevent any
other agency or department from initiating other enforcement action, including
disciplinary action, based on the same allegations and facts.
(f) The city attorney, upon the request of the city official and after analyzing potential
conflicts of interest, shall represent the city official in the complaint process and at the
determination hearing. In the event that a conflict of interest prevents the city attorney
from representing the city official, the city official will be notified of the conflict and may
request that a defense be provided by the city. The city manager shall, in his sole
discretion, determine whether the city will retain alternate counsel for the city official. If
there is no conflict but the city official does not wish to utilize the services of the city
attorney, the city official may retain counsel at city official's expense.
(g) At the determination hearing,
(1) the investigating attorney shall present relevant evidence and testimony;
(2) the city official shall be entitled to present relevant evidence and testimony; and
(3) the complainant shall be entitled to address the ethics commission.
The ethics commission shall receive and consider testimony of the complainant, the city
official, and other relevant witnesses. The ethics commission shall adopt procedural rules
governing the conduct of a determination hearing consistent with this section.
(h) The city official under investigation or his representative shall have an adequate
opportunity to examine all documents and records to be used at the hearing at a
reasonable time before the date of the hearing as well as during the hearing, to bring
witnesses, to establish all pertinent facts and circumstances, and to question or refute any
testimony or evidence.
(i) If the ethics commission finds merit to the reported violation of this article, the ethics
commission will within five days after the hearing report its findings and
recommendation for disposition to:
(1) The city council for complaints alleged against the city manager, municipal court
judge, associate municipal court judge, or a city official who is not an employee
of the city; or
(2) The city manager for complaints alleged against another city official who is an
employee of the city and not referenced in subsection (i)(1) of this section.
6
Such report inust bc in %vddng and Mgned by aH pamicipating menitm-s of (lie ethics
conitnission, who voted with the ni,,kjority,
After receiving the report, the city council or the city nianager, as appmprime, W11
reviciv We sonic and take appvpdme acdon con istent with section 2-807 or this code
anWor Te personnel rules and procedures.
Sect ion 4: All ordinances or parts of ordinances inconsistent with tile tenlis of this
ordinzince are hereby repeWed; provided, houvvcq % such repeal shall "be only to the extent of
mich inconsistency and in 0 other respect s this ordinance shall be ca nudative of other
ordinances, re platting and governing the subject matter coverai by Tis onlhance.
Section If any provkioil section, exception, subsection, paragraph, sentence,
clause or phrase of dais ordinance car tile applicadon or mune to any person or set of"
circurnstances, shNI Rw any rulson be heW unconsthtaional, void or invalid, sudi invMidhy shall
not affect the valWity or the rernahning Imousions of this ordinance or their zipplication to other
persons.wr set (yf circumstances and to I& end aH provisions of this ordimince, are declared to be
sevemble.
Section 6: ']'his ordinaricc shall take cf'fcci Arn and after tell (1 0) days from its
passagc by the C,it.y (,!ouncil. The 017 Clerk is hereby d4ccwd to give notice hereof by causing
the caption ofthis ordinance u) be puWiAed in the offichil nmvspaper of the (!Ky of Baytown at
least twicc within ten (d 0) days offer passage of this ordinance.
INTRODUCE,J), READ and PASSI-M by the ankniadve vowlar tile "i(y council of the
Cavity of Balown Ods the 27"' Cloy Of'RIuLtary, 2011 A/
APPROVl,,-'.D AS TO F'ORNI:
f4.NAC]0 RANHRI,/,, SR., C',i norney,
L)ONCARIXYS, Nla,),,or
at, aim Qumc9IhArmnmsQ(H Wamnq, 2T!Qdc4AdWmwFINAJAoex
7