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Friday, February 9, 2018 by Jessi Devenyns

Regret an ethics complaint? City may soon allow take-backs

On occasion, a complaint will come to the Ethics Review Commission only to be later followed by a request for withdrawal. However, according to current code, a request of this nature may not be honored.

Concerned with the inability of plaintiffs to withdraw their complaints, at their Feb. 7 meeting commissioners proposed an amendment to the code that would allow them to automatically dismiss a complaint if they are presented with a request for withdrawal.

After returning from executive session where the commissioners discussed the matter, Chair Peter Einhorn explained their concerns to the public, saying, “We have found a little bit of snafu in the code.”

The commission determined that this “snafu” could be resolved with amendments to two sections of the code. One amendment is the addition of a new subsection.

After the commissioners voted to alter the first section of the code language to allow for a dismissal to be considered, they then found themselves deep in discussion as to how a complaint should be properly dismissed.

Originally, the language in the added subsection specified that a dismissal would be at the discretion of the commission and could be approved by a majority vote. However, for the sake of simplicity, the commissioners ultimately resolved that if a request was made, the dismissal would be automatic.

“Less work for us,” said Commissioner Donna Beth McCormick.

Some commissioners expressed concern with such a simplistic solution. “I just want to make sure that with the dismissal there is no double jeopardy concern,” said Einhorn.

Commissioner Ben Stratmann argued that legally, “I don’t think it could be a double jeopardy issue because it was never brought before anybody for adjudication.”

The commissioners did note that if they or another member of the public considered that the withdrawn complaint should indeed be brought to the commission for a hearing, the complaint would simply have to be refiled. “We have the jurisdiction very clearly within the code to refile the complaint,” explained Stratmann.

If anyone does choose to refile a complaint it will still need to be done within the two-year statute of limitations that dictates that all grievances must be received by the commission within two years of the occurrence of the charged complaint. According to Commissioner Brian Thompson, complaints are received by Ethics Review Commission the same day they are filed.

The commission voted unanimously to recommend approval of the proposed code amendments to City Council, which would allow for the automatic dismissal of a complaint if a request for withdrawal is made.

Photo by John Flynn.

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Key Players & Topics In This Article

City of Austin Ethics Review Commission: The Ethics Review Commission is charged with review of, among other issues, ethics complaints leveled against City of Austin boards and commission members. They meet quarterly.

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