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What really happened with the new ethics ordinance?

Thursday, March 16, 2017 by Jack Craver

An ordinance approved by City Council last month aims to strengthen the Ethics Review Commission, the citizen panel tasked with investigating and judging ethics complaints made against city officials.

The ordinance, which had been in the works for about a year and a half, will give the commission a number of new powers, including to subpoena witnesses and impose penalties for those who disobey them and to request investigative assistance from the city auditor.

It also allows the city auditor to hire an independent investigator to look into complaints filed against Council members, their staff or the city manager and to refer their investigation to the Ethics Review Commission. In the past, the auditor was tasked with investigating such complaints, something that many saw as an inherent conflict of interest because the auditor reports to Council and the city manager.

In the past, explained Nathan Wiebe, the chief of investigations in the auditor’s office, the auditor could hire an investigator, but if the cost exceeded a certain threshold, the office would need to seek approval from the same members of Council it might be investigating.

“So it would be kind of awkward,” he added.

Austin Kaplan, who was chair of the commission from 2012 until early last year, recalled that the commission began drafting the ordinance as part of an ongoing effort to turn what had long been a largely neglected body into an influential city watchdog.

“When I arrived, I was surprised at the current state of the body,” he told the Austin Monitor in an interview. “It wasn’t terribly active and energetic. It just wasn’t handling a lot of complaints.”

The debut of the 10-1 Council system coincided with a sharp uptick in activity, however. Between October 2013 and October 2015, the commission dealt with 16 complaints, the same number it had dealt with in the 23 years prior.

The increase in activity, said Kaplan, was due to a number of factors, including the record number of Council candidates, some of whom were political novices who were unfamiliar with campaign finance rules and therefore prone to mistakes.

The commission’s increased relevance also highlighted many of its shortcomings, said Kaplan. For one, the volunteer members did not have a lot of time and resources to conduct thorough investigations into allegations of malfeasance. Their power to compel testimony was also limited, as demonstrated by then-Council Member Don Zimmerman skipping the hearings in which the commission heard complaints against him over campaign finance violations.

While the ordinance was approved unanimously by Council and without much controversy, a late change sparked media coverage suggesting that Council members were maneuvering to escape the ethical scrutiny they were voting to impose on others.

The amendment, which was offered by Council Member Alison Alter and supported by all of her colleagues, eliminated a clause of the ordinance that would have had the Ethics Review Commission jurisdiction hear complaints made against Council members for violating Article 2, Section 9 of the city charter, which bars Council members from interfering in city personnel matters.

It is the city manager who should deal with complaints from her staff, not the Ethics Review Commission, said Alter. A conflict between Council and staff is a “separation of powers issue,” not an ethics issue that the commission has been trained on, she explained.

Alter regrets not having more thoroughly explained the amendment during the Feb. 9 Council meeting. Although Council members had discussed the matter at their work session earlier in the week, members of the public watching may have gotten the impression that the amendment was slipped in at the last minute.

“In retrospect, I would have clarified further on the dais what we were trying to accomplish,” she said.

She hopes that the confusion over her amendment does not distract from the overall effect of the ordinance: “It actually strengthens the ethics process.”

Photo by M.Fitzsimmons made available through a Creative Commons license.

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