BROKEN PROMISES FOR A CHEAP PRICE

Excerpt from the Fort Worth Weekly April 25, 2012
http://www.fwweekly.com/2012/04/25/price-line/

If Mayor Price really wants to leave Fort Worth a better, greener place, a lot of folks wonder why she and the council did absolutely nothing last October when they had the chance to act on health and safety concerns over the gas drilling that has become the city’s signature industry and the source of its most bitter public debate. The injection well decision, as welcome as it was to drilling critics, was just an oily drop in the bucket of that larger fight.

The city staff, based on the findings of an air-quality study that  was itself controversial, had proposed a set of new ordinances. [Blogger Note:  The city staff knew that the proposed changes would not be accepted by industry or neighborhood leadership, which is why it was presented in such a manner]

Critics called them a weak response — but were even more flabbergasted when the council shot down even those half-measures and made no move toward stronger regulation.

Price, who promised during her campaign to look at the “hodgepodge of rules” governing gas drilling and its effect on air and water quality (“Leading Molly,” April 20, 2011), defended the decision.

She did exactly what she promised, Price told the Weekly. “We want to make sure it’s all safe. We reviewed those ordinances — and overwhelmingly, neither industry or the neighborhoods wanted the draft that came forward on those original ordinances. And there have been no studies to show that anything being done under our ordinances is dangerous.”

Not quite. Neighborhoods opposed the proposed ordinances because they were toothless, lacking any real protections for communities despite continued claims of poisoned groundwater and polluted air.

And many residents still have questions about the industry-friendly interpretation of data from the two “official studies” accepted by the city, one funded by the drilling industry and another by the city. The second air-quality study, for example, examined 375 well sites but only one that was engaged in drilling and only one where fracking was happening. (“Blowing Smoke,” Sept. 14, 2011).

Tests funded by skeptical community groups reached different conclusions. Colleyville and Southlake residents funded their own study and reported Tuesday that fracking on those cities’ borders releases dangerous levels of toxic chemicals into the air.

Price and the city council set no timetable for taking up the issue again.

Libby Willis [Fort Worth League of Neighborhoods] represents thousands of Fort Worth residents who still want the changes that the new mayor now dismisses. For now, though, Willis is giving Price the benefit of the doubt.

The longtime neighborhoods leader said she remains hopeful that the council will revisit the issue with better results. “Maybe it was a little overwhelming for them. Maybe we need to take a more incremental approach to those issues,” she said.

But Price sounds less than amenable to the idea of revisiting the ordinances and implementing gas industry regulations. “You never say never to anything, but I feel like our ordinances are very good and our communities are very safe,” she said.

Representative Lon Burnam wasn’t as charitable as Willis toward a mayor who so frequently apologizes on behalf of the gas industry. He met with her a few weeks ago and said he was “appalled” by comments she made about the industry.

“She’s extremely likable, but the proof is in the pudding when it comes to public policy,” he said. He criticized her recent 10-day trip to China to discuss the developing natural gas technology in that country. Price defended the trip, which was sponsored by the U.S. Energy Department as part of an international effort to promote energy efficiency to reduce pollution and greenhouse gas emissions.

The Chinese “don’t know a lot about fracking,” Price told the Star-Telegram in December. “They’re very interested in the knowledge we have here.”

In her interview with the Weekly, Price said that natural gas is the cleanest-burning energy source, though she added that public health is always her number-one concern. [Really?]

Given the massive amounts of coal the Chinese government uses, natural gas should be seriously considered as an alternative, she said, and noted that the trip included discussions of all energy sources, including wind and solar.

“They’ve got a terrific air-quality problem — they’d kill to have days like this,” she said, pointing out the window to an atmosphere that, ironically, many local residents believe is dangerously dirty, due in significant part to gas drilling. “We’re all breathing the same air,” she said. “It’s a global world.”

FORT WORTH ETHICS - A THING OF THE PAST





CHIPPING AWAY
Fort Worth's code of ethics is being rewritten -
or gutted depending on your point of view.
By: Peter Gorman


Two years ago, members of the city’s little known and little used Ethics Review Committee found out what happened when you pissed off Mike

Moncrief. The mayor tossed their board and major parts of the city’s ethical rulebook out the window.

It was a rather stunning example of the kind of personal power play that the ethics code was intended to prevent. Moncrief fired the committee members without prior approval of the council and appointed new members without regard for the code’s requirement that citizen input be sought.

What had the ethics panel done to draw such reaction? It had ruled that it was a violation of the city’s ethics code for three highly placed gas company employees to sit as members of a committee making recommendations on the details of an air quality test that had far-reaching implications for the companies that paid their salaries.

Perhaps as remarkable as what Moncrief did was the fact that he got away with it. A majority of the city council backed him. And now the things that he did are being written into — or out of — city ordinances and codes on a long-term basis.

One of the proposed changes that has activists worried most is what amounts to a free pass for city officials, allowing the city attorney to rule on a large percentage of conflict-of-interest questions and cutting the ethics board out of the process. Since the city council hires and fires the city attorney, there is no safeguard in place to keep the council from getting whatever opinions it wants.


Picht: "The ethics code was created to
hold city officials in check, not rpotect
them."

 A  second  possible  change  involves the way the ethics commission is appointed. Currently, the city council must reach out to the community for recommendations on ethics panel members. If the changes now being worked on are approved, the council will no longer have to do that.

A third key change being considered would allow advisory boards and committees to be exempt from the Texas Open Meetings Act — something that is legal but is not the current practice in Fort Worth.

A lot is at stake when a city’s ethics code and ethics commission are potentially weakened. Far-reaching ethical questions come up daily in a city the size of Fort Worth, said Robert Wechsler, a leading researcher on ethics issues for legislative bodies nationally.

“Millions of dollars in contracts and awards go out on a regular basis. Inside information on key areas for future city development is available to certain officials and businesspersons, but not to the average person. Friendships can color deals; so can animosity,” said Wechsler, research director for the nonprofit Cityethics.org. “And that’s why you have a code of ethics and an ethics review board, to make it clear what is an ethical conflict and what is not. With the rule of thumb being that if you need to ask the question, it’s probably a conflict.”

No one on the city council or on the ethics review commission is taking credit for pushing the changes, but no one seems to be working at stopping them either. The amendments are being written by the city attorney’s office — which provides legal advice to the council and other city officials.

“The ethics code,” said former council member Clyde Picht, “was created to hold city officials in check, not to protect them. So to have the city attorney, whose salary is set by the city council and who serves at the pleasure of that council, rewrite the city’s ethics code … well, I’m not sure that the city attorney is the best person to write the code meant to keep those officials in check.”

Despite the potential impact on the city and its taxpayers, the process of changing the ethics code is being done so far under the radar that even some community organizations that are generally quick to howl about ethical lapses and lack of transparency say they didn’t know what was in the works.

“We need a  strong  ethics code because if we don’t keep a separation between the city and the business of business, we’re going to end up with the kind of stuff we had with Moncrief,” said Jerry Lobdill, a retired physicist and longtime activist on gas drilling and other issues. “The business of the city is paid for by the taxpayers of the city, and a strong code of ethics and a strong ethics review board are there to remind city officials that they are public servants.”

He doesn’t expect the situation to get better any time soon. The city council, he said, “simply defies anyone to bring them to task.”

Perhaps the most controversial change being proposed to the ethics code is the get-out-of-jail-free card for public officials.

Currently the code gives the ethics review commission the duty and power to rule on the “appropriate disposition of allegations of [ethics] violations.”

The new version, however, notes that as long as a city official has reasonably relied “either directly or indirectly” on a written opinion from the city attorney’s office, then no ethics violation has occurred. Only have a verbal OK from the city attorney? You’ve got 15 days to get it in writing, and you’re still home free. If a complaint has been filed about the official’s conduct, all that is required is for the city att

orney’s opinion to be produced, and “the commission shall dismiss the complaint.”


 Ashford: “The three members

of the ethics review committee

 … heard the complaint, and they

agreed with me.”



“People are not paying attention if they let something like that slip by,” said Jim Ashford, whose complaint regarding the air quality study woke the former ethics committee from its lethargy two years a

go and started the whole ball rolling. “If the new version is OK’d, a city official who  is acting on the opinion of a city attorney will have absolute immunity from being held accountable. And that is just wrong.”

Ashford, who has been active in urban gas drilling controversies for several years — and still has a lawsuit against Chesapeake for the noise that one of the company’s compressor stations makes — also noted that even if the attorney turns out to be wrong in his or her opinion, the city official is not held accountable for any ethical wrongdoings. “And of course, even if the city attorney provides an opinion that is criminally wrong — that’s taking it to the extreme — the city attorney cannot be held responsible either. He or she only offered an opinion, after all.”

Wechsler, the ethics researcher, said the proposed exemption is used widely — but he still disagrees with it.  “Probably the number-one ethics problem in the U.S., on every level, is officials going to attorneys for ethics advice,” he said. “The attorney cannot be held responsible, and yet the official is off the hook. That makes people have less belief in the honesty and integrity of their government.”
For an official to be able to go to an in-house attorney for ethical rulings rather than to the ethics commission itself is just forum shopping, he said. “You’re just going to someone you think will give you the opinion you want.”

And officials will benefit, he said, because an attorney is going to go by the letter of the law, while the ethics committee can go beyond that, to consider how things appear. An attorney, Wechsler said, might say something is legal but will cause a scandal and who cares, while the ethics board will be looking to prevent the scandal by avoiding even the appearance of impropriety.

“Then, with the city attorney working, in effect, for the city council and at the pleasure of the city council — well, there’s a built-in conflict there,” Wechsler said. “I don’t think any city attorney worth their salt would want to be in the position of making ethics calls for the people he or she works for.

“The whole thing simply promotes corruption,” he said. “I’m not saying all city attorneys are corrupt, but it gives a city attorney way too much power.”

Not surprisingly, Fort Worth City Attorney Sarah J. Fullenwider sees it differently. “Let’s say you’re a volunteer on a board or commission, and something comes up, and you go to the city attorney and ask if you have a conflict. If the city attorney says there is no conflict, then the issue is, do you want to then subject that person to a possible ethics committee violation, or do you want to say the issue has already been settled? That’s what we’re looking at with that change.”

Picht, who has a reputation as a straight-shooter, rejects that reasoning. “The city council will manipulate the ethics code to their advantage — they’ll go to the city attorney, and he or she will go along with nearly anything to avoid a pay deduction or getting fired.”

Carter Burdette, a former long-time city councilman and currently a member of the ethics review committee, doesn’t see that conflict.

“I don’t get the feeling that allowing the city attorney to render an opinion in that circumstance is a get-out-of-trouble card,” he said. “As a former attorney I was paid all my life to render opinions to people, and I took that very seriously, and I think most attorneys do. So I don’t see any problem with that.”

********

Another potential change to the ethics code hinges on the difference between “shall” and “may” — one of those details of semantics that can turn out to make a major difference in how an ordinance actually works.

In the current code, the city council is required to reach out to local organizations for suggestions as to who should serve on the ethics review commission. The section says, “The city council shall develop a list of community, civic, and professional organizations which shall be invited to make suggestions for appointments to the committee.”

The new wording says the council may solicit such organizations to suggest appointees.

Wechsler sees the difference as much more than a quibble. “If Fort Worth is eliminating the community from the process — and changing “shall” to “may” certainly allows for that — well, then Fort Worth is going backward,” he said. In other cities, he said, the trend is the other way, in favor of having community groups recommend ethics board members, to increase the likelihood that the board will be politically independent.

Even more troubling to Wechsler and others is the proposed change that would remove most city advisory boards from the transparency requirements of the state open-meetings law.

The current city code makes no distinction between official boards and advisory boards. Under the proposed revision, however, advisory boards would not have to post meetings, allow the public to take part in meetings, or even keep minutes that would be available to the public.

In Texas that is generally legal, according to the Attorney General’s 2012 Open Meetings Handbook, which notes that “an advisory committee that does not control or supervise public business or policy is not subject to the [open meetings] Act.”

It’s not that simple, though. The handbook also notes that “if a governmental body that has established an advisory committee routinely adopts or ‘rubber stamps’ the advisory committee’s recommendations, the committee will probably be considered to be a governmental body subject to the Act.”

Wechsler said that since advisory boards  are  making recommendations that will affect the community, transparency is required. “The gist of it is saying that advisory board members don’t have any real authority to change things, but that’s really just playing games with the ethics issue. The legal view might say it’s technically OK because of a loophole in the meetings act, but that doesn’t make it ethical.”

In  addition to the potential for secrecy involving advisory boards, Wechsler sees another downside to allowing them to operate in private. Why, he asked, would any city purposefully close out the community, “which might have expertise they could share? The only reason would be because you don’t want community participation.

“And then the flip side: What problem could having those meetings in public create? The answer is none.”

Ashford agreed. “To have advisory-only groups that don’t have to meet the standards for transparency, to have these groups meeting behind closed doors, well, to me that looks like the city is going to be denying citizens an open government,” he said.

There’s another, apparently minor, change in the proposed code revision that has Ashford riled up as well. Currently the code says the board is to include one attorney. The proposed revision would make that at least one attorney.

Ashford believes that the more lawyers there are on the ethics panel, the less representative the panel will be of the citizenry. “At one point in time, after he fired the old ethics committee members, Moncrief had three lawyers on the board,” Ashford said. “How is that representative of Fort Worth? Do we have a population made up of 60 percent lawyers?”

Wechsler said the ethics commission shouldn’t have any lawyers on it. “Attorneys are not my choice for those boards,” he said, “because they tend to be the people most likely to have ethics conflicts. They might represent [companies] that do business with the city, they might be political people — there are a host of reasons for not having them on ethics boards.”

He believes that an ethics board should hire an outside attorney to help with legal issues but that the lawyer shouldn’t have a vote. “It’s simply not appropriate for a lawyer to give counsel to a board on which he or she sits. That’s already a conflict. And that’s what the ethics board is there to avoid.”

********

Ashford thought the presence of three gas-drilling employees on the committee violated the city’s ethics code. The employees, he complained, derived more than 10 percent of their annual income from the gas drilling industry — the threshold set by the code for determining whether officials have “substantial interest” in an issue and therefore must recuse themselves from voting or providing input.

“Well, the three members of the ethics review committee at the time — there were supposed to be five, but Moncrief let two slots go vacant — heard the complaint,” Ashford recalled. “And they agreed with me.”

Moncrief definitely did not. When the board issued its ruling, the mayor fired them. He did it on the same day that the council held a special meeting to hear the gas company employees’ appeal of the board’s decision.

At that Aug. 19, 2010, special meeting (“Has Fort Worth Lost Its Moral Compass?” Sept. 22, 2010), then-City Attorney David Yett explained to the council that despite the ethics review committee’s findings, the council didn’t have to see it that way.

They didn’t: The ethics violation finding was reversed.  According to the minutes of that meeting, Moncrief said it “was typical and standard operational procedure to ask citizens who were subject matter experts or industry experts to serve on the city’s task forces, commissions, boards, etc. He stated that the city had done this for years.”

After the violation was overturned, according to the minutes, “Mayor Moncrief requested a complete review of the city’s ethics ordinance.” Of course, Moncrief added, the council “certainly wanted to assure that the citizens had recourse when appropriate and to ensure public officials were independent, impartial, and responsible to the citizens of this great city.”

He also requested that the city attorney “bring to the council interim revisions that could be made to the city’s ethics ordinance to protect task force members” as well as any other interim changes thought necessary while the complete overhaul was being done.

And that set the tone for what’s been done since, said Ashford. “They were talking about what the city council wanted, but to me the ethics committee is there to protect the citizens from wrongs that the city officials might be doing.”

Louis McBee, a longtime activist and a co-founder of the North Central Texas Communities Alliance, believes the entire rewriting of the ordinance is being done to protect city officials. McBee has also filed ethics complaints. “Every complaint that Jim Ashford and I lodged was simply dismissed by the ethics review board,” he said.

Burdette — one of only two city officials who returned phone calls to the Weekly for this story — disagreed. “The suggested changes … will define and clarify some things in the current ordinance to make them more understandable to everyone,” he said.  “I don’t have a feeling that anything that’s been suggested lacks transparency.”

The ethics revision process seems to be flying under the radar of even some of the city’s most active watchdogs.

Several groups and organizations said they knew nothing of the code rewrite; others, including two longtime activists, said they are so disgusted with the way the city is handling this and other issues that they’re giving up on Fort Worth altogether.

“Something’s wrong there,” Wechsler said. “That goes to the heart of trust in government.

“The whole point of a city or state or any other agency or business having a code of ethics is to provide the community with a sense of trust,” he said. “And when an ethics code is written in such a way that provides little transparency, well, that public trust is shaken.” Ethics go beyond laws, he said, in recognizing that the appearance of undue influence or unfair dealings can be injurious to a city, regardless of whether the letter of the law has been followed.

“It’s really not difficult,” said Picht. “If you don’t have ethics in government, you have nothing.”

LETTER TO THE EDITOR FROM AN ORIGINAL ETHICS REVIEW MEMBER

To the editor: Peter Gorman’s “Ethics: Chipping Away” (Aug. 15, 2012) brought back memories. I was formerly a member of the Ethics Review Committee that heard a complaint on Aug. 19, 2010, against certain council-appointed members to an advisory committee regarding gas drilling. The article is as sad as it is revealing.  Nothing has changed in the way this city views its responsibility to be transparent to its citizens in the conduct of its business. That is the revealing part. The sad part is that nothing will change. According to Mr. Gorman’s article, even two longtime activists are “giving up on Fort Worth.”

Their hopelessness was evident during that hearing in 2010. Mr. Ashton (Ashford) and Mr. McBee were the personification of courtesy and respect as the case was presented, but it was clear that they believed no one was listening to them. Our committee carefully reviewed the facts presented and applied them to the provisions of the Ethics Code. Only one result could be reached: An ethics violation had occurred because the council-appointed members of the advisory committee were employees of the gas companies. The astonishment in the room when we announced that finding was palpable, on both sides.

As we left, the members of the Ethics Review Committee quietly said goodbye to one another, knowing that our service to the city was over. It took less than 48 hours for each of us to receive that call from the city. Mine came before the meeting to remove me was held, and I was told in advance what the vote would be.

Mayor Moncrief has been fond of touting his pride in the “Fort Worth Way” during his tenure in office. Fort Worth has many reasons to be proud as a community, but the revised Ethics Code under consideration is not one of them.

Rebecca C. Lucas, attorney at law

Fort Worth