March 7th, 2010
San Marcos council approves new complaint process

By ANDY SEVILLA
Associate Editor

The San Marcos City Council added new language last month regulating the complaint process in city government.

The legislation stipulates that complaints are prohibited from being filed within a period beginning 60 days before the first day of early voting in a San Marcos election. The ban on complaints would end on the last day of the regular Election Day or runoff election day.

During council deliberations last year, Mayor Susan Narvaiz asked for the prohibition of incoming complaints during election season in order to keep the city’s complaint process from being used as a political tool against elected officials seeking re-election.

Under the new rules, the city attorney is required to provide a copy of the complaint to the person accused of wrong doing within seven business day of receiving the grievance form. The city attorney also will forward a copy of the complaint to the San Marcos Ethics Review Commission, which would take up the matter in executive session.

Previously, the commission did not review complaints in executive session before conducting hearings to determine whether complaints were in proper form or allege sufficient facts to constitute prima facie violations.

Based on its decisions, the commission will either dismiss the complaints and provide notice and reasoning behind the dismissals to both the complainants and the persons accused, or, if the commission finds merit behind the complaints, the commission will then schedule hearings.

Once a hearing is scheduled, both the complainant and the individual accused will present evidence supporting their cases and will have the ability to cross examine witnesses. The commissions’ chairperson and the recording secretary of the commission are authorized to administer oaths to persons who testify at the hearing.

Ex parte communication during the complaint process is prohibited. Neither party, the complainant or the accused, is allowed to communicate, verbally or in writing, with any commission member regarding the complaint, unless the communication takes place in an open meeting.

If the commission determines that a violation occurred, it may impose or recommend any of the following sanctions:

•    A letter of notification,
•    A letter of admonition,
•    A reprimand,
•    A recommendation of suspension from office or employment, or
•    A recommendation for recall or removal from office or employment.

In addition to the possible sanctions, the commission may recommend to appropriate authorities that a person be prosecuted for a violation that calls for that outcome.

The legislation stipulates that if “a recommendation of suspension of an official appointed by the city council shall be transmitted to the city council, and the council will have final authority on whether to impose a suspension. A recommendation of suspension of an employee shall be directed to the city manager, who will have final authority on whether to impose a suspension.”

San Marcos residents and employees of the city may file written complaints with the city attorney. The complaints must:

•    Identify the complainant and the person who allegedly committed the violation,
•    Provide a sufficient statement of the facts, which, if true, would constitute a prima facie violation of the city charter or a state conflict of interest law,
•    Specify the provision of the city charter or state conflict of interest law which has allegedly been violated,
•    Identify sources of evidence, if any, that the complainant recommends should be considered by the commission, and
•    Be filed on a form prescribed by the commission available on the city’s website and the city attorney’s office.