Ethical dilemma

State District Judge John Creuzot played a decisive role in getting his fellow task force members to sign off on a meaningful ethics code.
James Elliott

Matt Orwig could smell victory.

Perched nervously on the edge of his swivel chair, the assistant U.S. attorney tried not to glance too obviously at the big wall clock in the conference room of the city manager's office. "I wanna vote, I wanna vote, I wanna vote," he thought, half hoping telekinesis might speed the half-dozen men and women working their way through tedious punchlists of cleanup amendments to a new city ethics code.

It had been six months since Orwig first took his seat at this table, eager to overhaul the city's ethics rules. And like several others, he was surprised to see that the ethics task force immediately broke into factions: the reformers vs. the business-as-usual bunch. The task force's work had the potential to become a bloody, bitter fight.

Instead, the 15 members, each appointed by a city council member or the mayor, had generated a miracle: Prominent citizens of goodwill, all of whom wanted the best for Dallas but had wildly differing notions of what that might be, had hammered out a genuine political compromise.

And now, on August 4, after more than 30 meetings, they had a new ethics code -- a code that, Orwig thought, was a significant improvement. Not that it was perfect; Orwig and his fellow reformers had given in on a number of substantive provisions, and the result was a set of ethics rules far less strict than those recently adopted by cities such as San Antonio and San Jose.

They gave on substance because they got something important in return: the establishment of an Ethics Advisory Commission, a standing group of 15 citizens that would receive and review ethics complaints filed under the new scheme.

It was a delicate compromise. Most of the former political insiders on the task force were profoundly uncomfortable with the notion of oversight by non-insiders. While the proposed commission had no power to punish, it could determine publicly that a violation had occurred and then place the matter before the city council. The commission's mere existence would represent an enormous shift in the city government's attitude toward ethical misdeeds.

And the task force members knew it. The provision establishing the ethics commission, or EAC, had been challenged no fewer than six times. But it was still in, and Orwig was desperately trying to move the document to a final vote.

He had already spent hours working the phone, tallying and retallying votes, comparing numbers with Donna Halstead, his most passionate opponent. Halstead, a former city council member and president of the Dallas Citizens Council, a group of business leaders who wield much power in city politics, insisted the vote was too close to call. But Orwig, whose disarming country-boy bonhomie made him welcome in all camps, was convinced he had a better read on several swing votes. The way Orwig counted, there were only three still opposed. Yet he still felt a sense of great urgency. "I could feel the momentum shifting," he recalls. "People were getting tired. And they were going to start switching votes." Not to mention going on vacation.

Orwig scanned the room, glanced at the clock. Then he settled back and waited for the vote he felt was sure to come.

The last thing he expected was trouble from a member of his own camp.

When task force chair and former city Councilman Max Wells asked whether there were any other items, Assistant District Attorney Clark Birdsall cleared his throat. "I just have one or two items," the 44-year-old DA said disarmingly. Rising to pass out a sheet of paper, he talked as he went. "This is something that the code, as it's currently written, doesn't address. It's designed to cover the John Ware situation."

There was utter silence in the room.

Birdsall sat down. A few people started to fidget. Others sat, staring or pretending to stare at the densely written provision. A few began to ask questions about the language of the amendment. To their surprise, Birdsall seemed confused about what his own proposal meant.

Whoa, Orwig thought. He didn't write this. We're going to get some drama now.

Assistant City Attorney Lisa Christopherson walked over and whispered something to Max Wells; Wells, in turn, leaned over to Orwig and several others. "I wish he hadn't done that," Wells said, simply.

He might have been referring to Birdsall's big faux pas, mentioning Ware by name. Or he might have been referring to the highly charged nature of the issue Birdsall had raised. Ware, of course, is the former city manager who negotiated Dallas' arena deal with Tom Hicks, whereby Hicks was promised $125 million of the city's tax revenue to help build his new basketball and hockey venue. Many citizens felt Hicks wasn't the only person who got something out of the deal. In June 1998, six months after the arena papers were inked and five months after voters approved the deal in an extremely close election, Ware announced he was leaving city government to head a Hicks-funded investment company.  

The episode prompted a huge outcry. Average citizens thought Ware's actions stank, and a few crusaders, including city Councilwoman Laura Miller, took up a cry for ethics reform. Miller's protests led directly to the creation of the ethics task force. City Hall insiders, however, knew Ware and, truth be told, liked him far better than they did Miller. They were convinced that the city manager had done nothing to sell out the city and that Miller was using the incident for her own political purposes.

Orwig didn't have a problem with the substance of Birdsall's amendment. His issue was timing. Substantive issues, particularly sensitive ones like this, could take weeks of debate -- and destroy delicate voting coalitions.

"It was like a skunk at a dinner party," he recalls. "It just kind of...fouled things."

Some task force members started to grumble. Ware was their friend. A war hero. A cancer survivor. A good man who used to sit a few feet from where they were gathered. For them, and for a few others, the issue was downright personal.

Christopherson, no fan of Miller's, was on duty that day, advising the task force on legal issues. Shortly after Ware announced his departure, Miller had asked Christopherson to draft a code amendment to prohibit future city employees from doing what Ware did. Along the way to making a perfectly valid point, however, the outspoken Miller had managed to antagonize Christopherson. And now, the assistant city attorney was staring at her own handiwork -- work for which, Christopherson had complained to several task force members, Miller had never even said "thank you."

Christopherson started waving her hand like an anxious schoolgirl.

When Wells finally recognized her, she got right to the point. "This is Laura Miller's amendment," Christopherson announced.

She might as well have said "Communist Party's amendment."

"Man, that was like waving a red flag," recalls Birdsall. "As soon as they heard it was Laura's language, by God, they were going to vote it down."

After the meeting, Wells pulled Birdsall aside -- and could be heard chewing him out for 15 minutes. "He had two issues," Birdsall says. "First, that I had mentioned John Ware by name. And second, that it was Laura's language, and he couldn't be supporting something by Laura Miller."

Orwig had no problem with Miller. What he did have, he sensed as he talked to task force members over the next week, was an issue that could wreck the fragile compromise that had emerged. Important swing votes were calling him to say that if the Ware provision passed, they would vote against the entire code -- including the Ethics Advisory Commission.

"The whole thing was kind of patched together with goodwill," Orwig recalls. "And I could see that unraveling." He wasn't going to let that happen. He felt that Dallas was on the verge of an important power shift: An unelected, unofficial cabal of middle-aged government servants had outmaneuvered the unelected, unofficial cabal of business leaders that has traditionally run Dallas.

He got on the phone, counted votes, and decided to kill the Ware amendment.

At the final regular meeting of the task force on August 11, 1999, a modified version of the amendment went down to defeat 10-4.

By getting rid of the amendment, Orwig saved the proposed ethics code -- EAC included.

The code passed, 13-0. "The end result was kind of unanimous," Wells says proudly. "I mean, we had one absent [Eric Moye] and one present not voting [Halstead]. But of those who voted, it was unanimous."

It wasn't a headline-grabbing victory for the reformers; then again, Dallas' current ethics code blesses many seeming conflicts and prescribes few penalties for ethical transgressors. The proposed code is perhaps the best the city can expect after decades of doing business the Dallas way: in secret, amidst layers of interlocking interests.

Orwig and the task force had gained a beachhead for reform. Now they face their toughest challenge yet: selling the code to the people who ordered it up in the first place.

No one's ready to celebrate. The task force must persuade city council members to embrace a document that eliminates practices for which they've displayed some affection, such as appointing family members to city boards .

They must also cajole thin-skinned council members into establishing a forum for their own humiliation: the standing ethics commission, which makes council members accountable for what they do after they get elected.  

"The council will have a hard time with this," predicts Max Wells, who says that his former colleagues will feel they're in the crosshairs. "I know I would. And they are. It targets everybody -- but to the degree there's any action, it'll be aimed at them."

Long before they'd even read it, council members were looking at the document walleyed, as if they'd been asked to kiss a snake. Orwig's conversation with John Loza, the council member who had appointed him to the task force, was typical. "I had to reintroduce myself, just so he'd remember me," says Orwig. "He told me thank you, he'd study it, but that he had real reservations."

The proposed code covers not only city officials, but members of boards and commissions, as well as full- and part-time city employees. It contains beefed-up provisions in several areas. First, it contains real financial disclosure requirements, applicable to everyone from the mayor to high-ranking city employees. Second, it toughens up the loosey-goosey language governing conflicts of interest. Right now, city officials and employees are free to benefit financially from a wide range of city council actions, such as a zoning case that would boost the value of a council member's property. The proposed code expands the number of conflicts for which city officials must recuse themselves from voting.

It also goes considerably further in spelling out when a conflict exists -- delineating, for example, when Mayor Ron Kirk can and can't vote on matters that affect clients of Gardere & Wynne, the law firm that employs him. The answer: He can't vote when that client generates more than 2 percent of the firm's gross revenue.

For two weeks now, council members have been studying the proposed code; their comments were due to the mayor's office last Friday. On November 17, the council is scheduled to take the document up at a full-day briefing session, although the mayor says he doesn't expect a vote until some weeks after that.

Most council members have their fingers to the wind, waiting to see whether there's any real pressure to support the proposed code. So far, there isn't. The city attorney's office is gunning for it and on Friday sent a six-page, 50-point critique of the document back to Max Wells, interposing objections to many items.

Privately, Mayor Kirk has told several people he expects 75-80 percent of the proposals to pass, but that the discards may include both the nepotism provisions and the EAC. In other words, he expects the council to trim away all the beef. According to the mayor's own written analysis, prepared by unnamed legal eagles and distributed to council members, the proposed code "represents a much broader ethics policy, compared to the existing code," providing "stronger and more specific provisions governing unfair advancement of private interests [a.k.a. conflicts] and the political activities of city officials and employees."

His analysis is candid about what he sees as the proposed code's shortcomings. The EAC, he fears, will be "misuse[d]...for political purposes." He is also less than enthusiastic about the financial disclosure provisions; under "shortcomings," his analysis points out that "considerably more information [will be] subject to the Texas Open Records Act and available to the public." Ironically, these comments are appended on the mayor's personal stationery, which contains the legend: "The only reason you and I are here is to serve the citizens of Dallas."

Ordinary citizens, for their part, have shown little interest in the ethics revisions. So far, task force members seem to be about the only advocates for their little code.

"I haven't gotten a single [citizen's] call on this," says Councilman Alan Walne, echoing the comments of his colleagues. "My question is, what did we fix? What would have happened differently in the last five years? I'm not sure anything...Is it just a matter of trying to make the voters feel better, or are we really doing something?"

Adds Mayor Kirk, normally no shrinking violet: "I don't want to come out and say 'I support it' or 'I oppose it,' because I don't...what I don't want to do is prejudge the process. I think the task force did a good job in presenting us a menu of things to look at. But really...I don't want to get out in front of that."

Though the early signs indicate the pols don't like the code, Wells predicts the council will warm to it, because "anyone who has any political smarts" will conclude that voting against ethics would not be shrewd. "I know that will come back to haunt you. I can see the campaign ad now."  

Just in case, though, he's not leaving matters to enlightened self-interest. Behind the scenes, Wells and his fellow task force members have been orchestrating a public relations campaign, lobbying The Dallas Morning News editorial board and quelling expected opposition at breakfast meetings all over town. For the past week, they have been studying the objections of the mayor and various city departments. They met again last Wednesday to answer questions the city attorney has raised and to orchestrate a strategy for passage.

Only a few council members are willing to say how they will vote. Donna Blumer says that she and Laura Miller, who did not return phone calls for this story, will vote to pass the code in full. "The [ethics task force] strongly urged us to pass this as it is," Blumer says. "They said, 'It's not a document we're all 100 percent thrilled with. But we had to compromise.'

"I anticipate that some council members are going to try to make major changes in it," she adds. "The whole thing could just be tabled indefinitely, and we'll never see it again."

Given Dallas' history, it would be entirely in character for the new code simply to disappear.

While Dallas does have a city charter, a hallowed piece of paper hauled out and ceremoniously consulted during any local political debate, it has always been a city governed by men and not laws.

The charter, adopted in 1936, is a relic of the "reform movement" in city politics, enshrining somewhat quaint notions of government that Dallas, by and large, still believes in. Notions like nonpartisan government run by unpaid amateurs, and city management by well-paid professionals.

And very little about ethics.

The 107-page document contains less than a dozen substantive provisions governing the ethics, morality, or misconduct of public officials. The rules, such as they are, often reflect the concerns of a bygone era. City employees may not accept any "gift, favor, privilege, or employment" from public utilities while on the city payroll. City officers can't "willfully or knowingly" misappropriate bond funds. Neither employees nor officials may benefit directly from city contracts. No would-be Boss Tweed may run a partisan political machine from City Hall or lean on public employees to contribute or vote. And last but certainly not least, neither police nor firefighters may be guilty of "immorality [or] drunkenness."

Other than that, however, the charter offers little in the way of ethical guidance. It has been supplemented over the years by a series of ordinances and personnel regulations, but even these sketch out, at best, a loose set of prohibitions. "On a scale of one to 10," says Wells, "10 being the strongest, toughest, most complete [ethics] process, and no rules being down at [zero], we probably had a three here in Dallas."

Yet there are many who argue Dallas has never really needed ethics laws.

"I am absolutely convinced," says the Citizens Council's Halstead, "that we have, by far, one of the cleanest, most effective local governments that you'll find anywhere in this country."

The more cynical view, left to academics, journalists, and other professional skeptics to put forth in any number of worst sellers, is that for many years, the grand old men who ran Dallas did a yeoman's job of controlling a less-than-aggressive local media, thus hushing up scandal. That and the "Dallas Way" deserve credit. For much of the city's history, a small group of business elites hand-picked public servants. Thus the politicians were either business elites themselves or puppets for the real governors, titans of commerce such as R.L. Thornton or John Stemmons. It wasn't entirely a cynical method of control; Dallas' self-made oligarchs had a sense of noblesse oblige.

"If you were in the financial business in the '60s, part of your obligation was to the city," recalls Wells, sitting in his office at Oaks Bank & Trust, the tiny SMU-area institution over which he presides. Now 66, Wells came up through the old system, entering city politics at the invitation of his banking mentors when he was a young man. "It was expected...not so much to help business, but just, it was expected."

As a result, city government developed a number of traits still noticeable today. First was a penchant for back-room decision-making and secrecy. "These were the old CCA [Citizens Charter Association, an arm of the Dallas Citizens Council] days," Wells continues, recalling his political start in the late '60s. "They had a semi-secret lunch where they decided everything. And then they had a council meeting for about an hour and a half and voted on everything [they had already decided]." Second, in Dallas, there is no history of real political power being vested in elected representatives. And third, pieces of paper, including the city charter, had very little to do with the way things actually worked. Dallas ran on goodwill and personal relationships among a small elite.  

For the most part, it still operates this way. True, more people can now join the elite; 14-1 and rezoning have resulted in more colorful faces at the table. Moreover, the city's elected representatives now wield some small measure of political power. Yet a weaker version of the Citizens Council still exists, and another organization, the Breakfast Group, still approves candidates and provides the bulk of funding for local political races. Through these organizations, big business still has enormous say in city affairs. It is no accident that two of the 15 seats on the ethics task force were warmed by Halstead, president of the Citizens Council, and Albert Black Jr., president-elect of the Greater Dallas Chamber of Commerce.

But there is a more aggressive press these days, uncovering more scandals -- and more aggressive U.S. attorneys trolling for public corruption. Dallas has had two city councilmen in three years indicted for misconduct in public office.

Even so, the city is still run very much on goodwill and personal relationships; Southern to the core, it prizes civility, manners, and consensus.

On a recent Saturday morning in the Orwig household, a typical '70s-era ranch home in the Lake Highlands area of northeast Dallas, Matt Orwig talks about the project that has consumed him since February.

"If the [city] council doesn't have the will to do this for the city of Dallas, that's pretty sad," he says intently, as three soccer-uniformed teens scurry off to games. "And if they eliminate the ethics commission, well, they just might as well not pass a new code. Because that's the heart of the document."

At 40, Orwig is a newcomer to city politics. He doesn't follow the ins and outs of city scandals; he knew there had been ethics issues in the papers regularly over the last few years, but couldn't have named them.

What he did know was that he has long been interested in ethics. He had spent a year in Washington, D.C., writing ethics opinions for U.S. attorneys across the country. So when his office-mate Cliff Stricklin mentioned there might be a spot still available on the task force, Orwig seized the opportunity. "I called up John Loza and said, 'You don't know me, but here are my qualifications.' I faxed him a résumé. And he appointed me," Orwig recalls.

The task force began its work on January 27. Orwig joined them in their meeting place in the recesses of the city manager's offices at their third meeting, on February 10. Like several others, he quickly surmised that real reform might not be on the agenda.

"It was obvious from the second I walked in there," recalls a prominent task force member who asked not to be identified, "that this was just supposed to be some pro forma deal where nothing got changed."

Intentionally or not, the deck had been stacked heavily against any meaningful reform. Unlike blue-ribbon ethics panels appointed in other cities, Dallas' group consisted not of academics and lawyers, but largely of former city officials: former city council members, a former city manager, and lawyers who regularly appear before city zoning boards. Insiders, many of whom saw little need to alter a system they thought worked well.

And then there was Orwig's group, the reformers. Prosecutors, judges, gadflies, lawyers who chased wrongdoers, people who thought that business as usual wasn't good enough.

It didn't take long for deep divisions to surface -- although not necessarily along expected lines.

"All you really knew at the start was who appointed everyone," recalls Stricklin. "And that turned out to be somewhat deceptive."

Ironically, some of the task force members most ardently in favor of strict ethics guidelines were those whose appointing council members have faced ethical criticism themselves -- not only Orwig, appointed by Loza, but also, for a time, Eric Moye, Al Lipscomb's appointee.

One of the most passionate advocates for ethics reform turned out to be former city Councilman Chris Luna, who, while on the council, was himself the subject of a formal ethics complaint filed by a fellow council member. (Luna was appointed by former Councilman Don Hicks.) Others in the reform camp were more predictable: Dr. Jose Gutierrez, appointed by Steve Salazar; Assistant U.S. Attorney Cliff Stricklin, Donna Blumer's appointee; and Assistant District Attorney Clark Birdsall, tapped for the task force by Laura Miller.

But the most influential reformer of all came as something of a surprise to fellow task force members: Mayor Kirk's appointee, state District Judge John Creuzot. "My thought always was, it doesn't matter what we pass if there's no enforcement mechanism," explained Creuzot in a recent interview. "And considering that we [the reformers] started out in the extreme minority, we got a lot accomplished."  

An elegant man from an old New Orleans family, Creuzot is a respected judge of nine years' service who likes to maintain a low profile. His work on the ethics task force is no exception. "I've been way too out front on this one," says the 42-year-old lawyer, sporting an SMU class ring and funky Porsche sunglasses that, if he weren't wearing a navy blue suit, would make him look like a character in Mad Max. From beginning to end, Creuzot was a decisive force for reform.

He was also one of five African-American men on the task force -- a factor that would become significant.

Likewise, those in the opposite camp revealed themselves quickly. Halstead was the strongest advocate for the status quo, along with former City Manager Richard Knight. Halstead and Knight were the appointees, respectively, of council members Alan Walne and Veletta Lill. They were joined in the beginning by former Councilwoman Harriet Miers, appointed by Mary Poss, and by Justice of the Peace Charles Rose, a latecomer to the task force who took the place of controversial member Dwaine Caraway -- who, ironically, had been tapped for the position by his wife, Barbara Mallory Caraway.

Other conservative voices included former city Councilman Sid Stahl, appointed by Lois Finkelman; Michael Jung, a zoning lawyer appointed by Larry Duncan; Albert Black Jr., appointed by Charlotte Mayes; and Wells, appointed by his successor on the council, Sandy Greyson.

"They were all bright, knowledgeable, opinionated," says Wells. "And the struggle was, could we find a consensus? Because it would be easy to come out of there 9-6 or 7-8. And I was convinced that if we did that, we had no chance of our work being accepted."

As a 30-plus-year veteran of city politics, Wells understood the rules of engagement. He announced that he wanted the task force to reach a unanimous decision. And he imposed a number of house rules designed to help achieve that goal. First: Until the ultimate vote on the document, nothing was decided. "You could keep putting stuff back on the table. And it was very frustrating, by the way, about the fourth time you won that victory," Wells says.

Second, there were to be no losers. "Even when we passed something 10-3, the requirement was that you had to go meet with the three people and figure out how to bring them in the circle," Wells explains. "And then bring the amendments back the next week."

But the third, and in some ways most important, rule was unwritten but understood: no names. Proposals would be discussed without reference to individuals or situations that had garnered media scrutiny. The rule was actually followed -- so much so that, to this day, task force members disagree whether particular ethical questions raised publicly over the last few years will be prohibited in the new code.

During the first meetings in January and February, the two camps sparred over a series of theoretical debates and philosophical questions. The status quo group quickly voiced an overriding concern: They didn't want to discourage government service. Too much openness and scrutiny, particularly financial disclosure, would, they felt, keep "good people" from serving -- particularly for free.

A few task force members, notably Knight and Rose, even voiced the notion that people go into low-paying government work, in part, because connections made there could be parlayed into money when they left. Especially in the case of unpaid boards and commissions, they suggested, this should not be penalized.

Early on, Birdsall recalls, "I couldn't believe some of the arguments I was hearing. They were arguing, 'If we make it too tight, it'll keep business out.' That's like arguing, 'If businesses can't slip a few bucks into the pockets of the local pols, they'll just go someplace else.'"

During the fourth meeting, when the task force decided to use another city's code as a template, the discussions got more concrete. Although most members agreed that San Antonio's code was the most comprehensive, some were concerned about it. Like most codes studied by the group, San Antonio's contained a provision providing for enforcement by an independent committee of citizens. Many of the former insiders were adamant: They would never go along with such a thing.

The reformers and business-as-usuals more or less followed the predictable script until the task force's first public input session on March 3. It was then that the mood abruptly shifted. That afternoon, a dozen speakers signed up and took seats in the plastic chairs shoehorned into one end of a conference room in the bowels of the city manager's office, where all of the task force's official meetings were held.  

The group was just what one might expect. "You know who shows up to those things is mostly lobbyists," Orwig says. "And they all had something they wanted us to do. You know, do this for the lawyers, do this for city employees."

Shortly after 6 p.m., the first lobbyist rose to say his piece. No sooner had he gotten out his plea for special consideration than Judge Creuzot stopped him cold. What, Creuzot asked, was the goal of this process? Was it to make it easy for businessmen and lawyers to get into city government or to look out for the public's interests?

Everyone in the room, task force members included, appeared chastened.

"It's what really got us back on track," Orwig recalls. Others agree. "John's question helped crystallize the issues," Wells says.

It certainly threw the competing concerns into stark relief. Was this an exercise for the benefit of city officials and employees, or for the citizens of Dallas who may never set foot in City Hall? And which was more important: ensuring open government or protecting city officials from political attack? These philosophical questions were never fully resolved. And several insiders now privately refer to Creuzot as a "troublemaker."

Perhaps it was the four-hour sessions, or the sweating deli platters, or the lame jokes, or Wells' gentlemanly ground rules. For whatever reason, by March, a genuine esprit de corps had taken hold among the task force members. "I don't know that I've ever worked with a group of people who, overall, had a stronger commitment to doing the right thing," gushes Halstead, who lost critical battles not only on the EAC, but over provisions beefing up financial reporting requirements and prohibitions on a broader range of conflicts of interest. "I think sometimes the view of those who had been on the inside wasn't as well articulated...And I think as a result, our view didn't have as much impact on the final product as I might have hoped. But I do believe the people who were there were there because they wanted to do the right thing."

At times, the task force's proceedings seemed more like group therapy than government, with former council members pouring out tales of the hurts they endured in office. Thanks to the frank and sometimes heated debate, there were any number of revealing moments.

During an especially intense discussion about who should have to file disclosure statements and where, former City Manager Knight let slip the truth about city bureaucrats' attitudes toward open government. Arguing that, open records laws notwithstanding, the city manager's employees' statements should not be subjected to the prying of nosy reporters, Knight said this: "There's two kinds of open records. There's the ones that I give you. And then there's the ones I make you fight to get."

Wells, after emphasizing how clean the city had always been, proceeded to share an amusing little tale about the time some enterprising businessman had tried to "influence" him.

"Once. It happened once," he says. A "guy" whom he refuses to name who had a zoning problem in Wells' district came into the bank where Wells is president and began depositing large amounts of money. After a while, the gentleman invited Wells to lunch. "It was clear-cut that he thought [his deposits] would influence my decision," Wells recalls. "But I handled it very carefully. And by the way, he not only took his money out of the bank, he withdrew his case."

Chris Luna would say later, "Let's be realistic. Anybody who says we don't have opportunities to fall off the wagon would just be naive."

By late May, after numerous meetings and even more hours spent poring over Wells' "homework" assignments, the task force had reached the critical question: How will this ethics code be enforced?

Right now, practically speaking, there is no enforcement. At the request of individual council members, the city attorney's office issues advisory opinions on whether council members may vote on issues. But these opinions are based only upon the facts the council member chooses to reveal; the city attorney does no investigation. Moreover, since the opinions are subject to the attorney-client privilege, no one but the council member knows what advice has been given.

In the event of a scofflaw, no one would be the wiser. There is no place for private citizens to file complaints about unethical behavior, no investigative body to find facts, and no mechanism to resolve the complaint, if it could be filed.  

In short, for anyone inclined to question the sanctimonious declarations of public officials, the current situation does not promote confidence.

Presented with these facts, the task force agreed that some machinery had to be put in place. The question then became: Who gets to decide when an official has broken the rules? Should they be insiders or outsiders?

While carrying out one of Wells' homework assignments, Orwig and Creuzot met ahead of the May 26 meeting to draft a proposed solution. What Wells didn't realize was that Creuzot and Orwig were of precisely the same mind on the subject: They wanted citizen oversight, specifically a standing panel of private citizens. They wanted San Antonio's solution. The very solution that the insiders hated.

Creuzot presented the task force with the provision he and Orwig had hammered out. The enthusiasm was underwhelming. Most agreed there needed to be somebody overseeing enforcement of the ethics code, but nobody could agree on who should play that role. The insiders were worried about the process being used to smear political opponents; they wanted the city attorney to make these determinations -- presumably so that the records, protected by the attorney-client privilege, would not be subject to open records laws.

This solution was utterly unacceptable to the reformers, who took it as an article of faith that whoever sat in judgment of city employees and officials must be independent and impartial, untainted by political considerations. Obviously, this requirement of independence could not be satisfied by giving responsibility to a city attorney who served at the will of the council.

"I didn't care what it looked like," recalls Orwig. "But it had to have three things. It had to be something that would inspire confidence in the average citizen. It had to have some type of due process protection. And it had to have some sort of independent, third-party review."

The debate went on for weeks. Wells asked for creative solutions, and he got them. At one point, there were 15 different proposals on the table. Halstead insisted the council members themselves should decide complaints; Sid Stahl suggested an ethics think-tank at SMU. The insiders played the fear-of-Ken Starr, prosecutors-running-amok card.

Creuzot trumped them with the race card.

Privately, sources say, he bent the ear of the five black members of the task force, using a seductive argument: The existing ethics code is part and parcel of a system set up by grand old white guys who ran the city to insulate themselves from criticism.

One of the African-American appointees to the task force puts it bluntly: "I just started thinking about the values of the men who put this system in place 60 years ago. They ran this town exactly like they wanted to, and they wouldn't have stood for any participation by the likes of me. So why should I, in 1999, go along with them?"

Creuzot got the vote of every African-American member of the task force, with the exception of Moye, who was absent during the final vote.

Inside the conference room, the reformers got a significant boost when, on June 30, City Attorney Madeleine Johnson opined that her office could not be counselor, judge, and jury; to play all three roles, she said, would constitute her own conflict of interest.

The reformers, meanwhile, were dealing like fake-Rolex vendors on Fifth Avenue. To counter the Ken Starr argument, they agreed to limit the terms of the ethics commission's individual members and took away its powers to initiate investigations. To ameliorate discomfort with the idea of strict, unelected citizens being too hard on well-meaning government servants who may, from time to time, slip up, they also took away the commission's ability to prescribe punishments. What remained was the right to determine that a violation had occurred and to state so publicly. Even that right had an expiration date; the code would evaporate in four years unless the council re-enacted it.

The Ethics Advisory Commission had been de-fanged before it even existed. And still there was no consensus.

Folks were starting to get cranky. That same day, Wells asked the task force to agree to abstract principles, which could then be boiled down to an appropriate provision. Sid Stahl drew the assignment of committing these to writing; the result became known as "Sid's Principles," and forms the basis of the provision in the proposed code. They contained most of the "Ws": who may file (anyone), where (with the city secretary), how (in writing, sworn to under penalty of perjury); and what happens next (notice to the accused; a preliminary screening, and, if the complaint seems to have any merit, an administrative hearing at which the accused may be represented by counsel).  

In so doing, of course, Wells signed Stahl on to the notion, which Wells endorsed too. It was a nifty bit of politicking by the banker and former councilman. And finally, on July 7, the EAC provision passed by a vote of 13-2.

The next week, it was challenged again.

The outcry came from the old guard, primarily the chamber of commerce and the Citizens Council, which bombarded the task force with a list of their objections. They predicted that a floodgate of frivolous complaints would open, and the result would be the thing they feared most: "negative publicity for the city of Dallas."

Black dutifully voiced the chamber's concerns -- and privately told task force members he still supported the EAC. The provision came under attack at each of the subsequent four meetings, and each time was upheld.

Consensus had been reached. Some members were relieved; others were concerned. The majority, however, were exceedingly proud of their handiwork. On August 18, nine of the 15 task force members attended the regular session of the city council, where their little manifesto was presented to the council members.

Behind the scenes at City Hall, armies are assembling against the proposed ethics code. Copiers and fax machines are churning out salvos designed to sink the task force's handiwork.

Within the last two weeks, the city manager's office and the city attorney have both taken aim. Monty Python could scarcely create a better parody of silly bureaucratic questions and apparent inability to use common sense. On October 28, the city attorney's office sent the task force a six-page, single-spaced, hand-scrawled list of 50-odd questions, objections, and proposed changes.

As Michael Jung noted in a memo to his fellow task force members, "I pride myself on being an obsessively detail-oriented person, and have, I daresay, exasperated each of you...[but] the [city attorney's] comments convince me I still have room for personal growth in that regard."

Last week, the city manager's office did the city attorney one better, coming up with a rambling seven-page document listing a dozen variations on the theme that the code's proposed disclosure requirements are "intrusive, invasive, and violate the privacy of" city employees and their family members. Among the more entertaining notions: that requiring top city officials to file a disclosure statement will result in loads of litigation aimed at city employees, whose net worths will presumably make them irresistible shakedown targets. The document is chock-full of silly questions, like whether city employees will be found to have violated the proposed ethics code if they are subpoenaed to give information in a lawsuit.

In an effort to respond to at least some of these salvos, last week the task force held its 33rd meeting. The circumstances were somewhat unusual. Their term has expired, and nobody, including the mayor, was willing to authorize them for one more session. But as the only natural advocates for their code, they decided it was important, so once again they piled into the conference room of the city manager's office. Despite the short notice, the meeting was well attended: Orwig, Jung, Stricklin, Birdsall, Miers, Luna, Rose, and Wells were all present.

As they worked through the city attorney's comments, the mood was considerably less optimistic than it was last spring. A number, including chairman Wells, seemed weary. As Wells noted several times, the mayor has not seen fit to send his comments to the former councilman. Wells has nevertheless offered to attend the November 17 city council briefing session in order to answer questions -- and, naturally, clear up any misconceptions.

So far, no one has invited him.

Privately, Rose explained to a number of task force members why the minority-dominated city council appears to be lining up in opposition. "He explained an aspect of this that had just escaped me," says one member. "He said, 'Now that we're in charge, you think we have to have an ethics code?'" It is an ironic tactic, since it was Creuzot's appeal to black solidarity that enabled the proposed code to pass in the first place.

The task force's painstaking compromise is looking awfully shaky now, and the members know that if they lose any major piece of it -- particularly the Ethics Advisory Commission or financial disclosure portions -- there really won't be any ethics reform worth speaking of.

The prospect of plain old citizens wielding the power to censure council members evidently is feared most.

"At bottom, I think, it's a fear of one person: Laura Miller," Orwig says. "I had council members actually say to me, 'She's vowed to get so-and-so, she'll use it politically.'"  

Nor are the attacks limited to one side. As Birdsall explains, "The plan is [for Miller and Blumer] to support it as is. But if Ron Kirk or anyone else starts picking at it, [Miller and Blumer] are going to start bringing up the things they don't like."

For their part, task force members deny that their code is a half-hearted, feel-good measure. "Look," Creuzot says. "It's a conservative document. But that's OK. Dallas is a conservative town."

"What we've tried to do," says Wells, "was to put 10,000 more watts of sunshine on [government]. Because if you get enough sunshine, you don't need as much enforcement. Because you people in the press and others will be able to say, 'Lookie there.'"

In a candid moment, Birdsall sums it up cynically: "Nobody's gonna go to jail because of this thing. The worst that'll happen is maybe somebody gets to wear a dunce cap in public. But that's all this exercise was ever about, anyway."

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