The lawsuit raising constitutional objections to the El Paso Ethics Commission was premature, El Paso County Attorney Jose Rodriguez said Tuesday.
He said that's because, in part, the exact process by which the commission will receive and review complaints has not been established. While the commission was created by a Sept. 1 vote of the El Paso County Commissioners' Court, its 10 members have not been named. Those members are to be named by the end of October, and the first meeting is set for Nov. 2.
That's where it gets complicated, because there are no firm plans for what rules the commission will follow, and how the commission will apply those rules. But the commission will have options, and Rodriguez said that questions about the complex undertaking are a healthy part of the process and not a reason to back away from the project, the first of its kind in Texas.
When activated, it will replace the county Board of Ethics, which cannot subpoena witnesses or refer cases to the district attorney and cannot impose fines or other penalties. The new commission will have those powers.
"I think it is a challenging endeavor but I think it's well worth it," Rodriguez said. "The challenge to us is to do it right, and to be a model for the rest of the state in how we develop our procedures and processes and how we go about investigating complaints and regulating unethical conduct in our county government.
"We already drew a lawsuit, which is not unexpected at some point."
Rodriguez said the questions raised by the lawsuit could be dealt with through the process of establishing the commission.
The lawsuit was filed by legal activist Carl Starr, who argued that two parts of the state law allowing El Paso County to set up the commission are unconstitutional.
The first is a provision that forbids people from talking about complaints before they reach a public stage in the process, such as a hearing. Starr asserts that is unconstitutional because it infringes on his First Amendment right to free speech -- if he makes a complaint against someone, he ought to be free to talk about it in public and with the media.
Rodriguez said that the issue came up with respect to the Texas Ethics Commission -- after which the legislation allowing the El Paso County Ethics Commission is modeled -- in a 1992 opinion. While not a court ruling, the opinion from the Texas Ethics Commission stated that the rule barring discussion of a complaint only applies to commission staff, and not to the person who made the complaint or the person about whom the complaint was made.
That means, Rodriguez said, that nobody would seek to stop Starr from talking about an ethics complaint that he had filed.
The second issue raised by Starr is trickier. Starr argued that a provision setting up a $4,000 fine for a "frivolous complaint," which is defined as "groundless and brought for the purpose of harassment," is too vague. Starr says that civil courts already provide a remedy for libel and slander and that the definitions used by the El Paso County Ethics Commission need to be more precise.
Rodriguez said that could be done through the process of establishing the commission.
"I'm not conceding, by the way, that the language in the statute as it reads is sufficiently vague as to be declared unconstitutional," Rodriguez added. "All I'm saying is there will be an opportunity for the Ethics Commission ... to flesh out some of the language in the statute."
County Commissioner Veronica Escobar also said the lawsuit jumped the gun.
"There are safeguards in place in the legislation and the committee can adopt additional safeguards and or specific parameters," she said. "The new commission will be tasked with determing its own bylaws. It can look at the existing code; for example, it could say all we want to look at is procurement. Or they may want to rewrite the code altogether, or they may want to adopt the code and eliminate some (provisions)."
It was a struggle to pass the state legislation allowing the commission, and there has been debate both behind the scenes and in public. With all that, the El Paso County Ethics Commission still has a long way to go before it's truly established, Rodriguez said.
Until then, he said, "We should not be reaching conclusions that it's too hard, too much trouble, too many unanswered questions, and (therefore) we should not do it. That's a very poor excuse in my mind."
