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Rodriguez case fails to find agreeable settlement

Friday, May 10, 2019 by Jessi Devenyns

In a novel solution, the Office of the City Auditor and Frank Rodriguez presented a settlement agreement to the Ethics Review Commission at what should have been the final hearing on the case May 8. However, ethics commissioners felt the settlement proposal undermined their duty to provide the public with transparency in cases and declined to accept it.

In February, the Ethics Review Commission voted to move forward to a final hearing on the case concerning Frank Rodriguez’s continued ties to Latino HealthCare Forum, a nonprofit he founded while serving as a senior policy adviser for Mayor Steve Adler.

“I think it’s a creative solution … but I don’t know it’s a vehicle that an average citizen might know about,” said Commissioner J. Michael Ohueri. He elaborated that his concern stemmed from the fact that arriving at a settlement agreement without a final hearing on the case could be perceived as a “special benefit” of Rodriguez’s former standing with the city. Rodriguez left his employment with the city in September 2017 citing health reasons.

Offering this settlement, according to Brian Molloy, chief of investigations, was simply an expedited method of assessing the evidence on the case that still allowed the city auditor’s office to achieve its two goals of transparency and accountability. In the future, he said, “We would consider going forward (with a settlement) with any complaint that comes before this commission.”

Ross Fischer, the outside counsel for the auditor’s office, noted that both parties viewed the settlement as a “mechanical resolution.” The idea, he explained, was to allow both the complainant and the respondent ample time outside of the commission to hear all the witnesses. With six charges against Rodriguez, Fischer argued that the case would be rushed if it was heard in the allocated 30-minute time slot that is permitted at a final hearing before the commission.

Ethics Review Commission outside counsel Austin Kaplan pointed out that while there is no explicit provision in the city code that allows for the auditor’s office to reach a settlement agreement with the respondent in an ethics case, there is also no language specifically prohibiting it.

All the evidence associated with the case is public and is filed with the Office of the City Clerk and posted on the auditor’s website.

Commissioner Donna Beth McCormick said that for such a high-profile case, a settlement is not a transparent solution. “We have not really been able to ask any questions and pursue this case … I don’t call that transparency at all,” she said.

Beyond the questions of transparency, Commissioner Peter Einhorn pointed out that the consequence of a reprimand for Rodriguez’s actions contradicts the assertion in the settlement that he “unintentionally and unknowingly violated Austin City Code.”

According to the commission’s bylaws, a reprimand is appropriate if a violation is committed intentionally.

Ross explained that the resolution was a byproduct of compromise and was therefore worked up between the two parties in a manner they hoped the commission would bless.

However, the commission did not bless the parties’ efforts to independently reach a solution. “There is a little bit of an undermining of the province of this commission,” said Commissioner Raafia Lari. McCormick felt similarly, saying, “This is done as something that’s being pushed on the Ethics Commission.”

Although there was a motion on the table to approve the resolution, it failed 5-3 with Lari and McCormick voting against it and Ohueri abstaining. Commissioners Luis Soberon, Robin Lerner and Brian Thompson were absent.

With the failure of the motion, the case will proceed to a final hearing June 12 where both parties will have their time to present evidence extended to one hour.

Photo by John Flynn.

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