October 11th, 2013
Freethought San Marcos: Eliminating conflicts of interest in city government

Freethought San Marcos: A column
by LAMAR W. HANKINS

For at least the last two decades many appointees to public office and some city council members in San Marcos have had conflicts of interest that are ignored by the city council, or even justified by bogus claims. It is one of those situations where the “Emperor has no clothes” and many citizens are reluctant to say so out loud, while others deny that conflicts exist.

The most glaring conflicts of interest can be found on the city’s Planning and Zoning Commission (P&Z). Currently, P&Z has nine members. They are Carter Morris, Randy Bryan, Bill Taylor, Corey Carothers, Curtis Seebeck, Travis Kelsey, Kenneth Ehlers, Christopher Wood, and Angie Ramirez. Of these members, three are engaged in businesses that are directly affected by the primary duty of P&Z – to make decisions whether to approve new subdivisions and special development districts and projects.

The three are Carter Morris, the manager of a real estate company owned by his father Randall Morris, who represents developers and their projects and sells real property in a large area including the counties of Hays, Caldwell, Guadalupe, and Comal; Kenneth Ehlers, a home builder; and Christopher Wood, a home builder in business with city council member Ryan Thomason.

Recently, P&Z Commissioner Carter Morris was found to have violated the city’s Code of Ethics. A majority of the Ethics Commission found that Morris committed  “minor” infractions of the Code when he met privately with San Marcos City Council members and P&Z members to lobby them about a rezoning case in which he had a financial interest, both before and after he recused himself from considering the matter when it was presented to P&Z.

One purpose of the Code is to prevent both elected and appointed city officials from influencing decisions in which they have a financial interest. Morris had a direct financial interest in the development of a tract on Sessoms Drive that would have included both residential and commercial components had it been approved. He both represented the developer and was in a position to market properties in the development. It is no minor infraction for a city official to try to enrich himself as a result of his position as a city official.

Under the Code of Ethics, Morris had a duty to publicly announce his conflict of interest regarding the Sessoms project, which he did. However, even though he recognized his conflict, he lobbied city council members and members of P&Z to approve the project.

Kathy Lawrence commented on-line in The Mercury about the situation, expressing just this point:

“The problem here is not in the end whether Mr. Morris violated the ethics law, but it has to do with city commissions and city council members who make their living from items that regularly come before the city for review. Mr. Morris was right to recuse himself from the vote, but in earning his living and doing what he needs to do to serve his business clients, he puts himself and the city in an awkward position. Same is true for Ryan Thomason of the City Council and his business partner who is a Planning and Zoning Commissioner. It doesn’t look right even when those involved conduct themselves very carefully within the rules.”

Another, anonymous, comment under the name “Watching” also got right to the point:

“Ryan Thomason of the City Council and his business partner who is a Planning and Zoning Commissioner should not serve on either. Both vote to try and fill their pockets. Watch the last council meeting where Mr. Thomason tried to open up 2 acer (sic) lots for multi family and unrestricted bedrooms. Mr. Morris is part of this group as well. San Marcos needs to remove the good old boy out of politics, it only hurts the city.”

The general ethics policy, which is supposed to guide the behavior of all city officials, both those elected to office and their appointees, makes clear that officials should not act in a way that causes the public to distrust their “integrity, impartiality or devotion to the best interest of the city and the public trust which the city holds.”

As the comments noted above make clear, it is reasonable to distrust people serving as city officials when they will make money or are likely to do so by approving certain development projects. This does not prevent them from serving as public officials, but it does demonstrate why their actions with regard to these projects should be more closely regulated.

The Code of Ethics has five purposes, including three that are directly relevant to the sort of conduct engaged in by Morris:

“To encourage ethical conduct on the part of city officials and employees; . . .

“To establish standards for ethical conduct for city officials and employees by defining and prohibiting conduct that is incompatible with the interests of the city;

“To require disclosure by city officials and employees of their economic interests that may conflict with the interests of the city . . . .”

The Code gives various definitions to define relevant terms, including “benefit,” “economic interest,” “immediate family,” and “business interest.”  Since Morris could be reasonably expected to receive financial gain from the project, he was precluded from using his position to “unfairly advance” the private interests of his client – the developer of the Sessoms project.

Morris’s response to the finding against him unsurprisingly fails to take into account that when a person becomes a public official, he or she is held to a different standard as defined by the Code of Ethics than one who is just a private citizen:

“I’m disappointed that some commission members applied a brand new and overreaching interpretation of a provision of the city code. This new interpretation, if it stands, will prevent San Marcos citizens who serve on boards and commissions from speaking with elected officials and exercising their rights as private citizens and doing their jobs.”

When Morris became a public official, he gave up some of the rights he has as a private citizen in order to protect the interests of the city and all of its citizens. As a result of his appointment as a city official on P&Z, Morris is not a private citizen with respect to business that comes before P&Z, and it is disingenuous of him to suggest otherwise. He is not, and should not, be allowed to use his public position to benefit himself or his family financially (his father not only owns the business which he manages, but is a developer, as well). Morris’s actions reflected directly on his “integrity, impartiality or devotion to the best interests of the city and the public trust” – all matters he had a duty to keep uppermost in his mind.

To clarify the conduct expected of city officials, and because it appears such clarity is needed, I have a simple suggestion for changing the Code of Ethics to make absolutely clear the behavior expected of all city officials. Section 2.424 provides for standards of conduct. By adding a sub-section that prohibits city officials from lobbying any other city official about a matter in which the lobbying official has an economic interest, there should be no doubt that Morris’s conduct is prohibited. The rules of the Texas Ethics Commission promulgated under the Texas Government Code, Chapter 305, provide ample guidance.

“Lobbying” would include “direct communication” about a matter of public business by a city official who has an economic interest in the matter in order to influence a decision of another public official relating to the matter. “Direct communication” would include contact in person, by telephone, or by written means directly with the public official. “Contact” would include causing the communication to occur, such as by having someone else deliver the communication.

Further, based on Texas Ethics Commission interpretations of the state law, if a communication does not include a discussion of the particular matter, but is intended to generate or maintain goodwill for the purpose of influencing potential future action about the matter, the communication is a lobbying communication.

Contrary to what some people seem to have ignored, there is an exemption in the Code of Ethics if the matter concerns a city official’s owner-occupied homestead. In other words, a city official is allowed to represent himself or herself before other city officials, boards, and commissions on a matter concerning his or her own home.

State law takes behavior which violates the state lobbying law seriously, providing that such behavior would be a Class A misdemeanor, subject to a fine of up to $4,000 and a jail term of no more than one year. It should be no less serious for a city official to violate such a provision. If the city had an anti-lobbying provision as outlined above, an appropriate penalty would be loss of the city position held by the lobbying city official and ineligibility to serve again as a city official for five years. A second offense later should result in life-time disqualification to be a public official.

If this proposed penalty provision were applied to a city council member, a charter amendment would likely be required to enact it. Applying the penalty to appointed officials, however, would require a simple change in the Code of Ethics, along with compliance with Article III of the city Charter, which requires notice and a hearing before removal could be considered by the City Council.

I am not suggesting in this column that real estate workers and developers be excluded from those who can serve on P&Z, though a good case can be made in support of that proposal given the close relationship between their sources of income and the primary work done by P&Z. But the belief that we need people from the real estate and development business on P&Z because of the expertise they can offer ignores reality. The city employs certified planners, engineers, building officials, and development specialists in various city departments. They should have the necessary expertise to assist the members of P&Z whenever necessary, thus avoiding relying on people with actual or presumed conflicts of interest to provide that assistance.

Such city employees regularly leave public employment to work in similar jobs in the private sector helping to create residential, commercial, and transportation projects for private developers. In fact, the Sessoms project was developed with the assistance of a former planner for the City of San Marcos who now works in the private sector.

Codes of ethics are not written out of a belief that any particular public official cannot put aside his or her bias, prejudice, or financial interests and make a decision about a public matter that is entirely in the public interest. Of course, some people can do that in some cases. Instead, ethical rules are written to make sure that the citizens can trust that the decision-making process is free of the corruption that exists when public officials have a conflict of interest and continue to use their positions of public trust for their own financial benefit.

It is better public policy to have rules that protect the public interest than to rely on the personal morality of public officials to avoid corruption, which is why ethics rules should not be a personal affront to any city official. If there is a reasonable argument against prohibiting public officials from using their official positions to personally enrich themselves, I hope city council members and candidates will make that argument publicly so that all voters can judge it for themselves. If not, the City of San Marcos needs such a prohibition in its Code of Ethics.

If the city council is serious about fulfilling the purposes of the Code of Ethics – that officials should not act in a way that causes the public to distrust their “integrity, impartiality or devotion to the best interest of the city and the public trust which the city holds” – enacting such a provision prohibiting lobbying when the official has an economic interest in the matter in question should be an easy decision. It fulfills at least three of the five purposes of that code, and will go a long way in restoring the public’s trust in the integrity of our local public officials.

© Lamar W. Hankins, Freethought San Marcos