After attending the Ethics Board meeting last night, it really feels like there need to be reforms in the ethics process. “Complainants” hardly have a chance of being successful in the current system.
BACKGROUND
The bulk of the time was spent on a complaint against Tom Carto. The allegation was that he allowed Dierdre Garton from the Ad Hoc committee on Overture and 201 State St foundation access to city resources that others would not have. Specifically, computers, a computer network system and a city employee generated database and letter head. There was testimony the they didn’t know which computer the email was sent from or who actually sent it. There was an email from city IS department that said it was not a city computer, but no one knew which computer it was. Carto did review and edit the email before it went out. It was on Overture letter head. It was sent to a database that is created by ticket sellers and marketing folks. It was sent on letter head that graphics employees worked on. The ticket sellers, marketing and graphics people are all city employees. Some felt that Carto stood to benefit from the letter being sent out, his salary and job were at stake. Some felt that was mitigated by his contract that says he is supposed to advocate for the Overture Center. Which was one of the the final issues, was the letter sent out, that advocated for people to contact their alders and show up and testify at meetings advocating for political action or not. Finally, the unanswered question was would Dierdre Garton have had access to these resources on her own as a member of 201 State St Foundation or did she need Carto to give her that permission. Of course, this was all complicated by the fact that Carto is employed not only by the city, but by 201 State Foundation and I think also MCAD, but that got confusing. Carto was represented by an attorney. The complaint was brought by Davin Pickell who has been an outspoken critic of the Overture and now has been placed on administrative leave from the city.
There was also a report on an unrelated item on the agenda, where some of the other issues come from. Basically, I filed a complaint and they found that since the person involved had consulted the city attorney and changed her statement of interest form when I notified her I had filed a complaint so they dismissed the case because she acted in “good faith”, there were “mitigating circumstances” and it was a “technical” violation. None of which is allowed for in the ordinance or policy manual.
ISSUES AND SOLUTIONS
1. First of all, the complaint form asks for “facts” and then says that the complainant can state them “upon information and belief”. However, when it comes to the hearing, you need evidence and burden of proof is on the complainant. The attorney in the above case argued that the case should be dismissed before they heard from respondent because the complainant couldn’t prove which computer was used, who sent the email, hadn’t seen the database, etc. How is someone placed on administrative leave supposed to have a chance to collect that kind of information? Or, in the case of the bike ride in Europe, how could anyone know who attended meetings, what was said and who paid for what unless they were there? The attorney also wanted them to only consider what was written in the complaint, and not the information from the hearing.
SOLUTION: I think they need to be clear that hard proof is not absolutely necessary, but give examples to the complainants and respondents of what would be acceptable. They need to clear up what the level of burden of proof is and make it clear that its not just the complaint that is considered, but that information from the hearing.
2. Multiple times during the hearing the hearing the process was confusing. At times they forgot to administer oaths, couldn’t figure out how to get more information they needed, got confused about what motions by the parties meant in terms of procedure for the committee and I had to inform them of what their procedure was and that the council had to approve a change they made to the policy manual. It looked bad.
SOLUTION: TRAINING!
SOLUTION: Allow the committee to seek information outside of what is presented, especially when there is a non-attorney complainant attempting to participate in an administrative hearing. In the case above, they had a copy of the email, that had links to it, but the information in the links was not available to them. If the email was forwarded to the city attorney, why couldn’t they just look at the links. When they discussed what Ms. Garton had access to through contracts between 201 State and MAD and Overture they didn’t know. Why couldn’t they recess and get that information. Instead, they made the decision based on lack of information.
3. The board felt there might be violations of the ethics code, but the complainant cited the wrong section of the code.
SOLUTION: Allow ethics board members, like EOC members bring an action before the board.
SOLUTION: Liberally allow for a recess and amended complaint when new information comes to light or a mistake was made by the complainant.
4. Consulting the city attorney is now a defense that will “mitigate” a “technical” violation.
SOLUTION: If that is used as a defense, allow the complainant to call the city attorney as a witness and have them testify about what they advised the respondent, or at least confirm that the complainant consulted them. Otherwise, we don’t know if the respondent actually consulted the city attorney, what the attorney advised them or if they followed it.
SOLUTION: If this is the rule they are going to follow, put it in the ordinance. Explain what mitigating circumstances would be. Explain what needs to be done when consulting the city attorney and provide for access to that information to the complainant. Explain the difference between a “technical” violation and one that is not. Explain what constitutes “good faith” on the part of the respondent. I have no issues with some of these concepts, but they simply are not allowed in the ordinance and if they are allowed should be defined.
SOLUTION: Don’t allow it as a defense. The ordinance doesn’t mention mitigation, technical violations or having consulted the city attorney as being a valid defense.
There’s more, this is just a quick rundown after 3.5 hours for a very frustrating meeting.
