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(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)
If the ERC determines that a violation of Division 1 of this article has occurred, it shall proceed directly to determination of the appropriate sanctions. The ERC may receive additional testimony or statements before considering sanctions but is not required to do so.
(a) Sanctions. If the ERC determines that a violation of Division 1 of this article has occurred, it may impose the following sanctions:
(1) a. A letter of notification shall be the appropriate sanction when:
1. The violation is clearly unintentional;
2. The conduct of the person complained against was done in reliance upon an opinion of the city attorney that was not in writing; or
3. The violation may have been unintentional but the ERC does not consider the level of offense to be severe.
b. A letter of notification shall advise the person to whom it is directed of any steps to be taken to avoid future violations.
(2) A letter of admonition shall be the appropriate sanction in those cases in which the ERC finds that the violation:
a. May have been unintentional; or
b. The violation was clearly unintentional but the ERC considers the level of offense to be severe.
(3) A letter of reprimand shall be the appropriate sanction when the ERC finds that a violation has been committed intentionally or through reckless disregard of Division 1 of this article. A letter of reprimand directed to an employee shall also be sent to the city manager and included in the employee’s personnel file.
(b) Recommendations. In addition to the sanctions that may be imposed pursuant to subsection (a) above, the ERC may make the following recommendations:
(1) Disciplinary action against persons other than the mayor or members of the city council. If the ERC finds that the person complained against (other than the mayor or a member of the city council) committed a serious or repeated violation of Division 1 of this article intentionally or through culpable disregard of Division 1 of this article, the ERC may issue a written recommendation for disciplinary action. If the person who committed the violation is an employee (other than an employee appointed by the city council), the ERC may issue a recommendation to the city manager that the city manager suspend or terminate the employee. If the person who committed the violation is an employee appointed by the city council, the ERC may issue a recommendation to the city council that the city council suspend or terminate the employee. If the person who committed the violation is an officer (other than a member of the city council) or member of an advisory board or task force, the ERC may issue a recommendation to the city council that the officer, advisory board or task force member be removed from his or her position.
(2) Censure of mayor or members of the city council. If the person complained against is the mayor or a member of the city council, and the ERC finds that such person committed a serious or repeated violation of Division 1 of this article intentionally or through culpable disregard of Division 1 of this article, the ERC may issue a letter of censure. The letter of censure may include a recommendation of recall or a recommendation to institute proceedings for removal from office. A letter of censure, and any recommendation of recall or to institute proceedings for removal from office, shall be transmitted to the city secretary and to the mayor and city council. 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.
(Ord. 20548-12-2012, § 1, passed 12-18-2012, eff. 12-22-2012)
(a) Determinations that may be appealed. The following determinations of the ERC may be appealed in accordance with this § 2-253:
(1) The dismissal of a complaint for failure to allege conduct which would be a violation of Division 1 of this article, pursuant to § 2-251(j);
(2) The dismissal of all or any portion of a complaint on grounds that the conduct alleged was undertaken in reasonable reliance upon a written opinion of the city attorney, pursuant to § 2-251(k); or
(3) The determination as to whether a violation of Division 1 of this article occurred, as alleged in a complaint heard by the ERC, pursuant to § 2-251(l).
(b) Eligibility requirements and filing deadline. Only a party against whom a determination of the ERC described in § 2-253(a) was made may file an appeal. The appeal must be in writing and filed with the city secretary within ten calendar days after the ERC’s determination.
(c) Filing requirement. The appeal must state sufficient facts to show that the ERC committed a material error in its deliberations.
(d) Sworn nature. An appeal must be accompanied by an affidavit stating that the person filing the appeal has good reason to believe and does believe that the facts alleged in the appeal are true and correct. The appellant shall swear to the facts by oath before a notary public or other person authorized by law to administer oaths under penalty of perjury.
(e) Acceptance by the city secretary. If an appeal does not comply with all of the eligibility requirements and filing deadline requirements of subsection (b) above or the requirements of subsection (d) above, or does not substantially comply with the requirements of subsection (c) above, the city secretary shall, by certified mail, return receipt requested, return the appeal to the person filing the appeal with a letter stating the defects in the appeal. If an appeal complies with all of the eligibility requirements and filing deadline requirements of subsections (b) and (d) above and substantially complies with the requirements of subsection (c) above, the city secretary shall acknowledge to the person filing the appeal that the appeal is complete as to form and provide a copy of the appeal to the city council, the city attorney and the person complained against.
(f) Designation of hearing officer and scheduling of evidentiary hearing. Not later than 15 business days after acceptance of an appeal, the city secretary shall designate the hearing officer in accordance with § 2-244(d) and notify in writing the hearing officer, the person filing the appeal and the person responding to the appeal of the hearing’s date, time and location. Such written notice shall be sent to the person filing the appeal and the person responding to the appeal by certified mail, return receipt requested. If the hearing is not held within 30 business days after designation of the hearing officer, the city secretary shall notify both the person filing the appeal and the person responding to the appeal of the reasons for the delay.
(g) Hearing rules. The hearing shall be based solely on the record of the ERC’s hearing. The hearing shall be conducted in accordance with the Texas Open Meetings Act, Tex. Government Code Chapter 551. The hearing officer shall have the right to establish time limits and other rules of procedure for the hearing and relating to the participation of any person in the hearing, subject to subsections (h) and (i) 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 hearing officer. All costs of preparing and filing such transcript shall be borne by the appellant.
(h) Rights of appellee. The person responding to the appeal 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.
(i) Rights of appellant. The person filing the appeal 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.
(j) Order of business. The order of business before the hearing officer shall be as follows:
(1) To ascertain whether the person filing the appeal and the person responding to the appeal are present;
(2) To determine whether the appeal is based on a determination of the ERC described in § 2-253(a);
(3) To review the record, hear statements from both the person filing the appeal and the person responding to the appeal as to whether the record shows that the ERC materially erred in its determination as to the issue on appeal, and, based on the particular standard of review set forth below, to determine whether the ERC materially erred in such determination;
(4) To make a recommendation to the city council as to whether the person originally complained against violated Division 1 of this article as alleged in the complaint originally filed; and
(5) If the recommendation to the city council is to find that the person complained against did violate Division 1 of this article as alleged in the complaint, also to recommend a sanction for the city council to impose in accordance with § 2-252.
(k) Ascertaining presence of the parties.
(1) If the person filing the appeal fails to appear at the hearing, the hearing officer shall dismiss the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, the ERC, and the city secretary a written notice of the hearing officer’s dismissal. The hearing officer’s dismissal of an appeal for failure to appear at the hearing is final unless the person filing the appeal petitions the hearing officer in writing within 30 calendar days following delivery of the dismissal to reconsider on grounds that the person had good cause to not appear and the hearing officer grants such request. Any petition for reconsideration filed by the appellant must include a statement that explains in detail why the person filing the appeal did not appear.
(2) If the person filing the appeal appears at the hearing but the person responding to the appeal does not, the hearing officer may proceed with the hearing in that person’s absence provided that the city secretary has a certified mail receipt that the respondent received notice of the date, time and location of the hearing.
(l) Determining whether there is a sufficient basis for the appeal. If the hearing officer finds that the appeal is not based on a determination of the ERC described in § 2-253(a), the hearing officer shall deny the appeal in its entirety. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal and the city secretary a written notice of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s denial of an appeal on such grounds is final and will not be considered by the city council pursuant to subsection (q) below.
(m) Determining whether the appeal is sufficient. If the hearing officer finds that the appeal does not state sufficient facts to satisfy any of the requirements of § 2-253(b), the hearing officer shall deny the appeal in its entirety. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal and the city secretary a written notice of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s denial of an appeal on such grounds is final and will not be considered by the city council pursuant to subsection (q) below.
(n) Review of determination that complaint does not allege conduct which would be a violation of Division 1. If the appeal is based on the ERC’s dismissal of a complaint for failure to allege conduct which would be a violation of Division 1 of this article, pursuant to § 2-251(j), the hearing officer shall review the record and determine whether the ERC materially erred in its determination that the complaint did not allege conduct which would be a violation of Division 1. The hearing officer’s determination as to whether the ERC materially erred in its determination that the complaint did not allege conduct which would be in violation of Division 1 shall be based on a de novo review of the record. If, based on such standard of review, the hearing officer determines that the ERC did err materially in its determination that the complaint did not allege conduct which would be a violation of Division 1, the hearing officer shall remand the complaint to the ERC, and the ERC shall proceed to consider the complaint in accordance with the remaining order of business set forth in § 2-251. If the hearing officer determines that the ERC did not err materially, the hearing officer shall deny the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal and the city secretary a written notice of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s denial of an appeal on such grounds is final and will not be considered by the city council pursuant to subsection (q) below.
(o) Review of determination that conduct alleged was undertaken in reasonable reliance upon a written opinion of the city attorney. If the appeal is based on the ERC’s dismissal of a complaint on grounds that the conduct alleged was undertaken in reasonable reliance upon a written opinion of the city attorney, pursuant to § 2-251(k), the hearing officer shall review the record and determine whether the record shows that the ERC materially erred in its determination that the conduct alleged in the complaint was undertaken in reasonable reliance upon a written opinion of the city attorney. The hearing officer’s determination as to whether the ERC materially erred in its determination that the conduct alleged in the complaint was undertaken in reasonable reliance upon a written opinion of the city attorney shall be based on the substantial evidence standard of review of the record. If, based on such standard of review, the hearing officer determines that the ERC did err materially in its determination that the conduct alleged in the complaint was undertaken in reasonable reliance upon a written opinion of the city attorney, the hearing officer shall remand the complaint to the ERC, and the ERC shall proceed to consider the complaint in accordance with the remaining order of business set forth in § 2-251. If the hearing officer determines that the ERC did not err materially in its determination, the hearing officer shall deny the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal and the city secretary a written notice of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s denial of an appeal on such grounds is final and will not be considered by the city council pursuant to subsection (q) below.
(p) Review of ERC’s determination based on the evidentiary proceeding. If the appeal is based on the ERC’s determination at the conclusion of its evidentiary proceeding conducted pursuant to § 2-251(l) as to whether a violation of Division 1 of this article occurred, the hearing officer shall review the record and determine whether the ERC materially erred in its determination as to whether a violation of Division 1 of this article occurred. The hearing officer’s determination as to whether the ERC materially erred in its determination shall be based on the substantial evidence standard of review of the record. The hearing officer’s determination shall proceed as follows:
(1) If the ERC found that a violation of Division 1 of this article did not occur, and the hearing officer determines that the ERC did not err materially in such determination, the hearing officer shall deny the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, the city secretary and each member of the city council a written copy of the hearing officer’s determination, which shall include the reasons for such decision. The hearing officer’s determination in this regard shall be final and will not be considered by the city council pursuant to subsection (q) below.
(2) If the ERC found that a violation of Division 1 of this article did occur, and the hearing officer determines that the ERC materially erred in such determination, the hearing officer shall uphold the appeal. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, and the city secretary a written copy of the hearing officer’s determination, which shall include the reasons for such decision and recommend that the city council accept the hearing officer’s determination that a violation of Division 1 of this article did not occur and that no sanction should be imposed upon the person complained against.
(3) If the ERC found that a violation of Division 1 of this article did occur, and the hearing officer determines that the ERC did not err materially in such determination, the hearing officer shall deny the appeal and adjourn the hearing. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, and the city secretary a written copy of the hearing officer’s determination, which shall include the reasons for such decision and recommend that the city council accept the ERC’s determination that a violation of Division 1 of this article occurred and the sanction to be imposed or recommended in accordance with § 2-252.
(4) If the ERC found that a violation of Division 1 of this article did not occur, and the hearing officer determines that the ERC materially erred in such determination, the hearing officer shall uphold the appeal and, based on a de novo standard of review of the record, announce any sanction to be imposed or recommended in accordance with § 2-252. Within ten business days, the hearing officer shall deliver to the person filing the appeal, the person responding to the appeal, and the city secretary a written copy of the hearing officer’s determination, which shall include the reasons for such decision and recommend that the city council accept the hearing officer’s determination that a violation of Division 1 of this article occurred and the sanction to be imposed or recommended in accordance with § 2-252.
(q) City council hearing. Within 45 calendar days following the date on which the hearing officer provides the city secretary with a copy of any recommendations of the hearing officer pursuant to subsection (p)(2), (p)(3) or (p)(4) above, or as soon thereafter as is practicable, the city secretary shall deliver to the city council a written copy of the hearing officer’s determination and recommendations, as well as the transcripts of the hearings of both the ERC and the hearing officer, and shall schedule a hearing before the city council to consider such recommendations. The written determination and recommendations of the hearing officer, as well as the transcripts of the proceedings before the ERC and the hearing officer, shall form the sole evidentiary basis for the city council hearing. No other evidence or testimony shall be presented at the hearing before the city council. However, the person filing the appeal and the person responding to the appeal shall each be entitled to make a statement to the city council as to whether the city council should adopt, reject or modify the recommendations of the hearing officer. Each statement shall be subject to any time limitation imposed by the presiding officer of the city council. No rebuttal statements may be made. Following any such statements and a review by the city council of the transcript of the testimony and evidence presented to the hearing officer as well as the hearing officer’s determination and recommendations, the city council shall, by majority vote, adopt, reject or modify the determination and any recommendations of the hearing officer. If any adopted determination includes a recommended sanction against an employee, the city manager will be solely responsible for considering, imposing and carrying out such sanction in accordance with the city manager’s authority under Chapter V of the Charter of the City of Fort Worth, Texas. If any adopted determination includes a recommended sanction against an officer other than a member of the city council, the city council, by majority vote, will be responsible for considering, imposing and carrying out such sanction. Within ten business days, the city secretary shall deliver to the person filing the appeal and the person responding to the appeal a written copy of the city council’s determination.
(Ord. 20548-12-2012, § 1, passed 12-18-2012, eff. 12-22-2012)
Except where otherwise provided by state law or in § 2-255, it is not the intention of the city council in adopting this article that violations thereof be subject to criminal penalties.
(Ord. 20548-12-2012, § 1, passed 12-18-2012, eff. 12-22-2012)
(a) The ERC or hearing officer, at their discretion, may issue one or more subpoenas for the attendance of witnesses, the production of books, papers, records or other evidence needed for the performance of their duties or exercise of their powers. The subpoena shall be issued on the sworn application (of either the complaining party or the person complained against) stating that the applicant in good faith believes that such item exists, and stating in detail a description of any such items, sufficient to be able to identify such item, that the party requesting the subpoena has not been able to obtain such item otherwise, and that the applicant in good faith believes that the item is in the possession or control of a person or entity whose name and address is specified in the sworn application.
(b) The ERC or hearing officer may issue any such subpoena upon terms and conditions that they deem applicable.
(c) The party requesting the subpoena, or the party to the proceeding opposing it, and the person or business entity against whom the subpoena is sought each has the right to appeal to the city council any decision by the ERC or hearing officer concerning the request for subpoena. Such appeal shall be made in writing within ten calendar days after the ERC or hearing officer’s decision (which must be in writing) by filing such appeal with the city secretary. All proceedings before the ERC or hearing officer shall be stayed until after the city council acts on the appeal.
(d) If the city council denies such an appeal or the time for an appeal has expired, any person who is subpoenaed by the ERC or hearing officer to give testimony or to produce books, papers, records or other evidence needed for the performance of the ERC or hearing officer’s duties or the exercise of their powers, willfully makes default or refuses to answer any question pertinent to the proceedings before the ERC or hearing officer, or refuses to obey any subpoena or fails to produce books, papers and other evidence required by the ERC or hearing officer, shall be deemed guilty of a misdemeanor and may be fined not more than $500 for each offense. Each day that a violation is permitted to exist shall constitute a separate offense.
(Ord. 20548-12-2012, § 1, passed 12-18-2012, eff. 12-22-2012)
During the performance of their duties under the provisions of this article, if the ERC, hearing officer, city manager or city council receives evidence of criminal conduct, the ERC, hearing officer, city manager or council may provide such evidence to the prosecuting attorney having jurisdiction of such matter for appropriate action.
(Ord. 20548-12-2012, § 1, passed 12-18-2012, eff. 12-22-2012)
If a complaint alleges facts concerning a possible violation of Division 1 of this article and such facts are involved in a criminal investigation or a criminal proceeding before a grand jury or the courts, the ERC, hearing officer, city manager or city council may, when they deem appropriate, postpone any hearing or any appeal concerning such complaint until after the criminal investigation or criminal proceedings are terminated.
(Ord. 20548-12-2012, § 1, passed 12-18-2012, eff. 12-22-2012)
Editor’s note:
This division, formerly codified as Division 2 of this article, derived from 1964 Code, §§ 43-5 through 43-9, Ord. 7650, § 1, adopted October 25, 1977 and Ord. 7784, § 1, adopted August 15, 1978. This division was renumbered as Division 4 of this article by Ord. 10617, § 1(2), adopted June 26, 1990, and as this Division 5 by Ord. 20548-12-2012, § 2, adopted December 18, 2012.
This division was amended and reorganized by § 1 of Ord. 21845-08-2015, adopted August 25, 2015, which repealed § 2-265. See also Code Comparative Table.
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