(a) Scheduling. Not later than 15 business days after both acceptance of a complaint and assembly of the ERC selected to hear the complaint, the city secretary shall notify in writing the ERC, the complainant and the person complained against of the date, time and location of a hearing on the complaint. Such written notice shall be sent to the complainant and the person complained against by certified mail, return receipt requested. If the hearing is not held within 45 business days after receipt of the complaint, the city secretary shall notify both the complainant and the person complained against of the reasons for the delay.
(b) Hearing rules. All hearings shall be conducted in accordance with the Texas Open Meetings Act, Tex. Government Code Chapter 551. The ERC shall have the right to establish time limits and other rules of procedure for a hearing and relating to the participation of any person in the hearing, subject to subsections (c) and (d) below. All proceedings of the hearing shall be reduced to writing by a court reporter, who shall file the transcript of the hearing with the city secretary within such time as is specified by the ERC.
(c) Rights of the person complained against. The person complained against has the right to attend the hearing, the right to make a statement, the right to present witnesses and the right to be represented by legal counsel or another advisor.
(d) Rights of the complainant. The complainant has the right to attend the hearing, the right to make a statement, the right to present witnesses and the right to be represented by legal counsel or another advisor.
(e) Order of business.
(1) Once a quorum of the ERC convenes the hearing, the order of business shall be as follows:
a. To ascertain whether the complainant and the person complained against are present;
b. To determine whether the complaint alleges conduct which, based on substantially the same facts asserted in the complaint, the ERC has already determined is not a violation of Division 1 of this article;
c. To determine whether the conduct complained against occurred within two years of the date on which the complaint was filed;
d. To determine whether the complaint alleges conduct which would be a violation of Division 1 of this article;
e. To determine whether conduct complained against was in reasonable reliance upon an opinion of the city attorney, whether verbal or written;
f. To hear evidence and statements as to whether the person complained against violated a provision of Division 1 of this article as alleged in the complaint;
g. To deliberate and determine whether the person complained against violated Division 1 of this article as alleged in the complaint; and
h. To deliberate and determine a sanction to be imposed.
(2) In the ERC’s sole discretion and as permitted by the Texas Open Meetings Act, Tex. Government Code Chapter 551, the ERC shall have the right to recess and continue the hearing one or more times. However, any member of the ERC who is not present at a hearing or continued hearing on a particular complaint may not participate in any discussion, voting or disposition of that complaint in any further continued hearing on that complaint.
(f) Ascertaining presence of the parties.
(1) If the complainant fails to appear at the hearing, the ERC shall dismiss the complaint and adjourn the hearing. Within ten business days, the ERC shall deliver to the complainant, the person complained against and the city secretary a written notice of the ERC’s dismissal. The ERC’s dismissal of a complaint for failure to appear at the hearing is final and may not be appealed. If the ERC dismisses a complaint for failure of the complainant to appear at the hearing, the complainant may not file another complaint alleging a violation of Division 1 of this article for substantially the same conduct unless the complainant files a written request for a rehearing within 30 calendar days of the date of the hearing explaining why the complainant did not appear at the hearing and the ERC determines, on the basis of such written request, that there was good cause for the complainant not to appear at the hearing.
(2) If the complainant appears at the hearing but the person complained against does not, the ERC may proceed with the hearing in that person’s absence, provided that the city secretary has a certified mail receipt that the person complained against received notice of the date, time and location of the hearing.
(g) Preliminary testimony by the complainant. In order to address the preliminary procedures set forth in subsections (h), (i), (j) and (k) below, the ERC shall hear preliminary testimony of the complainant, who shall state the alleged violation and describe in narrative form the testimony and other evidence that he or she is prepared to present to prove the alleged violation as stated in the complaint. Such testimony shall be under oath.
(h) Determining whether the complaint alleges conduct which, based on substantially the same facts asserted in the complaint, the ERC has already determined is not a violation of Division 1 of this article. If the ERC finds that the complaint alleges conduct which, based on substantially the same facts asserted in the complaint, the ERC has already determined is not a violation of Division 1 of this article and such previous determination was not reversed on appeal pursuant to this article, the ERC shall dismiss the complaint and adjourn the hearing. Within ten business days, the ERC shall deliver to the complainant, the person complained against and the city secretary a written notice of the ERC’s determination, which shall include the reasons for such decision. The ERC’s dismissal of a complaint on such grounds is final and may not be appealed.
(i) Determining whether the conduct occurred within two years of the complaint. If the ERC determines that the conduct which the complainant alleges to be a violation of Division 1 of this article occurred more than two years prior to the date on which the complaint was filed, the ERC shall dismiss the complaint. Within ten business days, the ERC shall deliver to the complainant, the person complained against and the city secretary a written notice of the ERC’s determination, which shall include the reasons for such decision. The ERC’s dismissal of a complaint on such grounds is final and may not be appealed.
(j) Determining whether a complaint is insufficient.
(1) In order to determine whether a complaint sufficiently alleges conduct which would be a violation of Division 1 of this article, the ERC shall hear the testimony of the complainant, who shall state the alleged violation and describe in narrative form the testimony and other evidence that the complainant is prepared to present. Such testimony shall be under oath, but the ERC shall not permit testimony by other witnesses, cross-examination or any findings of fact. Members of the ERC may question the complainant. The person complained against shall have the opportunity, but is not required, to describe in narrative form the testimony and other evidence that he or she is prepared to present in order to dispute or rebut the alleged violation.
(2) If the ERC determines that there are no reasonable grounds to believe that a violation of Division 1 of this article has occurred, the ERC shall dismiss the complaint and adjourn the hearing. Within ten business days, the ERC shall deliver to the complainant, the person complained against and the city secretary a written notice of the ERC’s determination, which shall include the reasons for such decision. The ERC’s dismissal of a complaint on such grounds shall be final unless appealed in accordance with § 2-253.
(k) To consider whether conduct complained against was in reasonable reliance on a city attorney opinion. The ERC shall give the person complained against the opportunity to testify if the person complained against asserts that the conduct alleged in the complaint was undertaken in reasonable reliance upon an opinion of the city attorney, provided that the person complained against first waives the attorney-client privilege with respect to the opinion. Such testimony shall be under oath, and any such testimony shall constitute a waiver of the attorney-client privilege with respect to the opinion. Any testimony that the conduct of the person complained against was undertaken in reasonable reliance upon a written opinion of the city attorney, or upon a verbal opinion of the city attorney that was followed by a written opinion of the city attorney within 15 business days following the date such written opinion was requested, shall constitute prima facie evidence that the conduct of the person complained against did not violate a provision of Division 1 of this article. The ERC shall then determine the extent to which the conduct of the person complained against was undertaken in reasonable reliance upon an opinion of the city attorney.
(1) If the ERC determines that all of the conduct of the person complained against was undertaken in reasonable reliance, either directly or indirectly, upon a written opinion of the city attorney that was either provided prior to the conduct complained against or requested prior to the conduct complained against and provided not later than 15 business days following the date of such request, the ERC shall dismiss the complaint and adjourn the hearing. Within ten business days, the ERC shall deliver to the complainant, the person complained against and the city secretary a written notice of the ERC’s determination, which shall include the reasons for such decision. The ERC’s dismissal of a complaint on such grounds shall be final unless appealed in accordance with § 2-253. Notwithstanding the foregoing, if the ERC believes that the city attorney’s opinion may be incorrect or no longer valid, the ERC may include in such written notice of dismissal a request that the city attorney reconsider the opinion, but the ERC shall not have the right to overrule the opinion or substitute its own opinion.
(2) If the ERC determines that some, but not all, of the conduct of the person complained against was undertaken in reasonable reliance, either directly or indirectly, upon a written opinion of the city attorney that was either provided prior to the conduct complained against or requested prior to the conduct complained against and provided not later than 15 business days following the date of such request, the ERC shall dismiss complaint and adjourn the hearing. Within ten business days, the ERC shall deliver to the complainant, the person complained against and the city secretary a written notice of the ERC’s determination, which shall include the reasons for such decision. In this event, the complainant shall be permitted one opportunity to amend and resubmit the complaint within ten calendar days citing only that portion of the conduct that the person complained against undertook without reasonable reliance upon a written opinion of the city attorney that was either provided prior to the conduct complained against or requested prior to the conduct complained against and provided not later than 15 business days following the date of such request. Otherwise, the ERC’s dismissal of a complaint on such grounds shall be final unless appealed in accordance with § 2-253. Notwithstanding the foregoing, if the ERC believes that the city attorney’s opinion may be incorrect or no longer valid, the ERC may include in such written notice of dismissal a request that the city attorney reconsider the opinion, but the ERC shall not have the right to overrule the opinion or substitute its own opinion.
(3) If the ERC determines that some or all of the conduct of the person complained against was undertaken in reasonable reliance upon a verbal opinion of the city attorney but that the person complained against requested that the city attorney supplement that opinion with a written opinion, and such request was made 15 or fewer business days prior to the date of the hearing, the ERC shall recess the hearing and reconvene on a date after the expiration of at least 15 business days following the date the written opinion was requested.
(4) If the ERC determines that none of the conduct of the person complained against was undertaken in reasonable reliance upon an opinion of the city attorney, or that some or all of the conduct complained against was undertaken in reasonable reliance only upon a verbal opinion of the city attorney that was not followed by a written opinion provided in accordance with § 2-239.1, the ERC shall proceed with the hearing.
(l) Evidentiary proceeding. Unless the ERC dismisses the complaint in accordance with § 2-251 (f), (h), (i), (j) or (k), the ERC shall determine whether a violation of Division 1 of this Article, as alleged in the complaint, has occurred. All statements and testimony of the complainant, the person complained against, and any witnesses shall be under oath. After hearing any statements of the complainants and the person complained against and any other evidence presented in accordance with this Article, the ERC shall make its determination based on the preponderance of the evidence (the greater weight and degree of the credible evidence and testimony). At the conclusion of the hearing, the ERC shall announce its determination and, if the ERC determines that a violation of Division 1 of this Article has occurred, identify the particular provision or provisions that were violated and announce any sanction to be imposed or recommended in accordance with § 2-252. Within ten business days the ERC shall deliver to the complainant, the person complained against and the city secretary a written notice of the ERC’s determination. The ERC’s determination and sanction (if applicable) shall be final unless appealed in accordance with § 2-253. In lieu of such evidentiary proceeding, the person complained against may acknowledge that he or she has committed a violation of Division 1 of this article, in which case the ERC shall consider the sanction to be imposed or recommended in accordance with § 2-252.
(Ord. 20548-12-2012, § 1, passed 12-18-2012, eff. 12-22-2012; Ord. 23992-12-2019, § 3, passed 12-17-2019)