April 6, 2009
In November 2008, in an open public meeting, the Commissioners Court unanimously adopted a legislative agenda item presented by the County Attorney that called for an independent County Ethics Commission with authority to enact an ethics code and assess civil penalties for violations.
Unlike municipalities that have “home rule” powers, County governments cannot legally enact ethics codes that can enforce civil and criminal penalties. Currently a county can only reprimand or fire those found in violation of the ethics standards. To enact ethics codes that are enforceable with strong sanctions requires authority granted by the Texas Legislature. As it currently stands, the County Ethics Board has no legal statutory authority to penalize fraud, bribery, or any fraudulent or unethical behavior. The creation of an Ethics Commission would set out procedures for accepting, reviewing and enforcing the Code of Ethics, while providing protection from frivolous complainants against county officials, employees and those that conduct business with the County of El Paso.
It should not be necessary to remind anyone why the County of El Paso needs a strong ethics enforcement agency in our community that would pertain to all County elected officials, employees and those conducting business with the County.
We were willing to do so for one simple reason: We believed—and still believe—that confidence in El Paso County government must be restored and maintained.
In January, representatives of El Paso County presented our entire legislative agenda to our legislative delegation and explained each item, including the Ethics Commission proposal. The proposed ethics legislation had been through a long vetting process, beginning with the County Ethics Board, County Attorney’s office, and the public when it came before the Commissioner’s Court on numerous occasions. Although Representative Norma Chávez was given first choice to introduce every item on the agenda, she chose not to engage on the ethics legislation, nor did she raise any concerns or issues with the legislation.
The House and Senate Ethics Commission bills were filed March 3rd and 4th, respectively. A public hearing was held in both the House and Senate on March 23rd, with the bills being heard in the House County Affairs Committee and in the Senate International Relations and Trade Committee. Public testimony was taken at the committee hearings, yet another opportunity for comment or input. The Senate Bill was voted out of committee the day after the hearing and was recommended for the Senate’s local and uncontested calendar. Representative Chávez chose not to participate in either hearing despite the fact that public notices of the meetings were posted well in advance.
Only this week did we learn that Representative Chávez was working behind the scenes to kill this important legislation, without ever talking to its House sponsor, Representative - Marisa Marquez, Senate Sponsor - Senator Shapleigh, the County of El Paso or the County’s lobbyists.
Understanding the importance and need for this type of legislation, Representative Chente Quintanilla agreed to support the bill and sign on as a joint author.
On April 3rd, County Commissioners Verónica Escobar and Anna Pérez and County Attorney José Rodríguez met in Austin with other El Paso legislators to discuss any concerns they might have with the legislation. Mr. Rodríguez had already been talking to Sheriff Richard Wiles and District Attorney Jaime Esparza about their concerns. Representatives Joe Pickett and Joe Moody pointed out specific concerns with the legislation that are being easily addressed without gutting the bill.
Representative Chávez continues to make vague criticisms of the bill and is trying every conceivable means to delay the legislation. At this point in the legislative session, everyone knows that delay is deadly to legislation.
To accommodate the specific expressed concerns of Representatives Pickett and Moody, the District Attorney, the Sheriff and the employees, the following changes are being made to the bill:
• Removed provision making a violation of the Ethics Code a misdemeanor. It was determined that the $4000 civil fine in the bill would be sufficient to encourage compliance with the Code and that any serious violations that might justify criminal sanctions could be addressed under existing laws. It will remain up the District Attorney to enforce those criminal laws.
• Added a provision to make sure the Ethics Commission law does not conflict with a collective bargaining agreement or existing civil service laws that protect employees and ensure that the Sheriff has the right to manage and discipline the employees under his supervision.
• More narrowly defined the term “lobbyist” to make sure that only those who get paid to influence County decisions are covered by the Ethics Commission law.
• Eliminated the power of the Ethics Commission to start investigations on its own initiative to allay the concerns of those who fear the Ethics Commission might engage in “witch hunts or fishing expeditions.” The Commission would have full power to act in response to complaints from anyone, including the public and County Personnel who become aware of violations.
We believe these changes will result in a strong Ethics Commission capable of policing ethics within County Government. In fact, with these changes the Commission would be almost identical in scope and power to the Texas Ethics Commission—the agency that enforces the state ethics laws our legislative delegation lives under.
The National Association of Counties reports that many counties in other states have established ethics commissions with the power to adopt codes, receive and process complaints and impose penalties. Both H.B. 2301/S.B. 1368 include all of the elements of an ethics code recommended by the National Association of Counties. No Texas County has created a commission with the power to enforce an ethics code with civil and criminal sanctions as doing so would require state legislation like H.B. 2301/S.B. 1368. Harris County appointed a group to study the issue of implementing an ethics commission and they recommended doing so. Other counties such as Dallas and San Antonio have established ethics codes with limited power, again with very limited power. If passed, this piece of legislation does not require that El Paso County either create an ethics commission or adopt an ethics code; instead, it provides El Paso County the option to do so.
It is primarily essential to recognize the importance of ethics in the workplace, especially in public service. We ask that you join us in supporting H.B. 2301/ S.B. 1368, legislation which is supported unanimously by El Paso County Commissioners Court and the El Paso County Ethics Board and many others in our community. Please call your State Representatives to voice your support for a County government that is ethical and strengthens the public’s confidence in our ability to conduct business with impartiality and integrity.
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Rodriguez is county attorney, and Escobar and Perez are county commissioners.