§ 2-61. Appeals following a complaint against a public official.

This section shall apply only to a complaint filed against a public officials and not to a complaint filed against a city manager employees.

(1)

The ethics commission's determination that a violation of the code of ethics has occurred involving a public official, or that a complaint is defective or fails to allege a violation, is final unless a written appeal is filed with the city secretary within ten (10) days after receipt of the ethics commission's determination.

(2)

The public official or the complainant who desires to appeal to city council must file a written appeal stating sufficient facts to show that:

a.

The ethics commission was prejudiced in its deliberations; or

b.

New evidence is available which was not considered by the ethics commission; or

c.

The ethics commission committed some error in its deliberations; or

d.

Reasons exist as to why the sanctions should be reduced or not imposed.

(3)

The city secretary shall forward the appeal to the city council with a report of the ethics commission's determination. The city council shall consider such written appeal, hear a statement from the complainant and the public official and shall:

a.

Deny the appeal in its entirety; or

b.

If city council finds that the written appeal states sufficient facts to satisfy the requirements of paragraph (b) above, schedule its own evidentiary hearing on the appeal or refer the appeal to an independent hearing officer for an evidentiary hearing as provided in paragraph (e) below.

(4)

If the city council schedules its own evidentiary hearing on the appeal, the produces shall apply:

a.

Such hearing shall be held within thirty (30) days after the council decides to hear the appeal. Council may grant two (2) postponements, not to exceed fifteen (15) days each, upon the request of the public official complained against.

b.

The hearing of the appeal before the council shall be a new hearing. The issue at such hearing shall be whether a violation of the code of ethics has occurred.

c.

At the hearing of the appeal, the city council may, pursuant to its investigatory powers under Article 2, section 5 of the City Charter, administer oaths and affirmations take evidence, request and subpoena witnesses to attend and testify, and request and issue subpoenas for the production of books, papers, records or other evidence relevant to the alleged violation. All witnesses shall testify under oath.

(5)

As an alternative to scheduling its own evidentiary hearing on the appeal as provided in (d) above, the council may appoint a hearing officer to conduct such a hearing. The hearing officer shall be an attorney licensed to practice in the State of Texas. The following procedures shall apply:

a.

The hearing officer shall have the power to hear testimony under oath and receive evidence on behalf of the city council concerning whether a violation of the code of ethics has occurred. The hearing officer shall have the authority to administer oaths and affirmations, and take evidence.

b.

The hearing officer shall have such testimony and evidence transcribed and reduced to writing by a court reporter and shall file the transcript with the city secretary within such time specified by the city council.

c.

The hearing officer shall have the power to make rulings concerning the relevancy and admissibility of the evidence and testimony presented to and heard by the hearing officer; however, the hearing officer shall not make any recommendation to the city council concerning whether a violation of the code of ethics has occurred.

d.

The transcript of the testimony and evidence presented to the hearing officer shall form the evidentiary basis for a hearing to be held before the city council concerning whether a violation of the code of ethics has occurred.

e.

No evidence or testimony shall be presented at the hearing before the city council other than the aforesaid transcript; however, the complainant and the person complained against shall be entitled to present oral or written arguments to the council concerning whether the testimony and evidence in the transcript establish that a violation of the code of ethics has occurred. City council shall determine if arguments are to be presented orally or written. If oral arguments are to be presented, city council shall determine the time each party may speak. If written arguments are to be presented, city council shall determine the length of the written arguments and the date the arguments are due.

(6)

Upon completion of either of the hearing procedures specified in paragraph (4) or (5) above, the council shall determine, based on the greater weight and degree of the credible evidence and testimony, whether a violation of the code of ethics has occurred. If the council determines that a violation has occurred, it shall state its findings in writing, shall identify the particular section of the code of ethics that has been violated, and within five (5) working days thereafter shall deliver a copy of the findings to the complainant, the person complained against and the city secretary.

(7)

The council may adopt rules of procedure for the hearing of an appeal. Such rules shall be consistent with the provisions of this article and other applicable laws.

(8)

If the council determines that a violation of the code of ethics occurred, it shall proceed directly to determination of the appropriate sanctions. The council may receive additional testimony or statements before considering sanctions but is not required to do so. If the appointed or elected public official complained against acted in reliance upon an opinion of the city attorney, the council shall consider that fact.

(9)

If the council determines that a violation has occurred, it may impose or recommend the following sanctions:

a.

A letter of notification shall be the appropriate sanction when the violation is clearly unintentional, or when the public official's conduct complained of was made in reliance on an opinion of the city attorney. A letter of notification shall advise the public official to whom it is directed of any steps to be taken to avoid future violations.

b.

A letter of admonition shall be the appropriate sanction in those cases in which the council finds that the violation is minor, or may have been unintentional, but calls for a more substantial response than a letter of notification.

c.

A reprimand shall be the appropriate sanction when the council finds that a violation has been committed intentionally, knowingly or with conscious indifference of the code of ethics.

d.

Removal or suspension from office shall be the appropriate sanction when the council finds that a serious or repeated violation of the code of ethics has been committed intentionally, knowingly or with conscious indifference of the code of ethics by an appointed public official.

e.

A letter of censure, a recommendation of recall, or proceedings for removal from office shall be the appropriate sanction when the council finds that a serious or repeated violation of the code of ethics has been committed intentionally, knowingly or with conscious indifference of the code of ethics by an elected public official. A letter of censure, a recommendation of recall, or decision to institute proceedings for removal from office, directed to an elected city official, shall be transmitted to and filed with the city secretary. Any recall proceedings shall be subject to the procedures specified in the City Charter. Any proceedings for removal from office shall be in compliance with provisions of the City Charter and state law.

(10)

Any sanctions imposed by the city council on a public official pursuant to this section shall be by four or more favorable votes of the city council, except that any sanctions imposed by the city council on an elected council member pursuant to this section shall be by majority vote of the remaining members of the city council.

(Ord. No. 97-63, § 2, 8-14-97)