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State Bar accepts complaint against former assistant city attorney

Wednesday, July 3, 2019 by Jessi Devenyns

The State Bar of Texas has determined it will be pursuing a formal investigation of former Assistant City Attorney Brent Lloyd.

Lloyd was the subject of a complaint filed last month by Board of Adjustment Chair William Burkhardt and former Board Member Bryan King, with the support of Board Member Don Leighton-Burwell. The three alleged that Lloyd violated the Texas Disciplinary Rules of Professional Conduct by simultaneously representing both the Board of Adjustment and the city of Austin on land use decisions.

Additionally, the grievance alleged that Lloyd sought to undermine his client the Board of Adjustment’s legal objectives by misrepresenting the interests of the board to third parties.

As the Board of Adjustment is a quasi-judicial tribunal for citizens to appeal staff decisions on land use, it is appointed a staff attorney to advise in both ex parte communication and in a public forum. Previously that attorney was Lloyd, who concurrently counseled the city’s Development Services Department during appeals of staff decisions. (Lloyd now serves as a development officer for Development Services.)

While there had been rumblings on the board about Lloyd’s perceived conflict of interest serving in these dual roles, in an earlier conversation, King told the Austin Monitor that the straw that broke the camel’s back – compelling him to co-file the case – was an audio recording of Lloyd and Greta Goldsby, an attorney for the Drenner Group. In the recording, Lloyd is heard advising the real estate group’s counsel to oppose proposed rule changes at the Board in a written letter to City Council.

Now that the State Bar has formally opened an investigation, Lloyd has 30 days to respond to the allegations. After he files his response, the State Bar will pick up the investigation and determine whether there is just cause to believe that the lawyer has committed professional misconduct. During this time, all information concerning any pending grievances is kept confidential.

In a statement, King said, “I am gratified the Bar is taking our professional misconduct complaint seriously because the city seems uninterested in Mr. Lloyd’s alleged misconduct.”

Lloyd has maintained that there was no inherent conflict in holding both positions and that he adequately fulfilled his duty in representing the board and advising them on land use issues.

Update: Following publication of this article, Lloyd contacted the Monitor with a statement, reprinted below.

Recently, a member and former member of the City’s Board of Adjustment filed a grievance against me with the state bar association. Because the allegations were made in a highly public fashion and bear on my professional integrity, I am writing to provide context and summarize my position on key issues. This will be my only statement on this matter apart from the formal response I provide to the state bar.

The allegations relate to the Board’s role in considering appeals that challenge decisions made by City staff in the administration, interpretation, and enforcement of the City’s zoning regulations. Over the course of several months in 2018-19, a few board members publicly advocated changing the Board’s rules of procedure to override requirements for appeals established by City ordinance. The amendments sought, among other things, to authorize the Board to waive mandatory deadlines by which appeals must be filed. I advised the Board, in public, that this course of action was unlawful and that the proposed amendments would violate City Code, which the Board is required to follow under state law. I also stated publicly that such a conflict would create confusion and uncertainty for staff, permit applicants, and interested parties affected by City decisions concerning land development.

Throughout this time period, several people reached out to me with concerns over the Board of Adjustment’s proposed actions and their potential impacts. These individuals included both members of the Board itself and third parties, some of whom had previously alleged improper conduct on the part of at least one board member in hearing an appeal. The issues were not confidential legal matters affecting only the Board; rather, they were issues of public record with the potential to broadly impact the City as a whole. My duty was to provide candid and accurate legal advice, not to aid in actions that I concluded were unlawful. I made no misrepresentations to anyone, including the Board, concerning these issues.

Nor did I provide biased or conflicted advice to the Board on appeals pending before them for consideration. On the contrary, I frequently advised the Board on options for overturning decisions by staff on both the overall meaning of City zoning regulations and the approval of construction permits for particular developments. In one case involving the Drenner Group, I advised the Board publicly that they had a sufficient legal basis to reverse decisions by City staff approving permits for the developer represented by Drenner. The public record includes numerous instances of me advising that the Board’s authority to consider appeals should be construed broadly, in favor of providing due process to residents affected by development.

Beyond my role as legal adviser, several years ago I defended the Board in litigation and argued in support of their decision that “short-term rentals” were not allowed in single family zones under the Code as it existed at that time. I also regularly assisted Austin residents in understanding how to appeal City permitting decisions to the Board and helped craft amendments to City Code clarifying important aspects of the process— including the addition of a public notice requirement for decisions on how land uses are classified. This latter amendment, adopted by Council in April 2012, fixed a procedural glitch that was central to the litigation referenced by the grievants.

In short, I was a strong advocate for the Board of Adjustment’s role in hearing appeals and worked hard to make the process more accessible to the Austin community. I stand by the legal services I provided to the Board and am honored to have served as their attorney. The individuals who have served on the Board, including those with whom I have at times disagreed, are hardworking and committed community leaders for whom I continue to have the greatest respect.

The headline of this article has been changed.

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