Test Case

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The more David Spence spoke, the deeper the hole he dug himself before the Dallas Ethics Advisory Commission. When he was finally finished, the dirt he'd kicked up had soiled his neat suit.

On September 6, Spence appeared before the six-member commission to answer charges that he violated the city's newly revamped ethics code, created as a pet project of Dallas Mayor Laura Miller, who appointed Spence to the city's plan and zoning commission last fall. The public hearing was Spence's chance to explain behavior that, in the eyes of the commission, added up to the first significant test of the new code.

As the Dallas Observer first reported ("Code Breaker," June 13), Oak Cliff artist Robert Ramirez accused Spence of improperly using his city title to obtain an otherwise confidential copy of Ramirez's liquor license application from the Texas Alcoholic Beverage Commission (TABC). Ramirez believed that Spence, who attempted to buy the building in which the restaurant is located, was trying to stop him from opening his Twilight Restaurant and Club in north Oak Cliff. The restaurant's opening did not require any action from the city plan commission.

At the outset, Spence appeared confident he would earn a passing grade. Dressed in a blue seersucker suit, the bespectacled lawyer opened a hardback novel as the ethics commissioners began the proceedings. The aloof pose evaporated as Spence responded to the commissioners' questions with quips, compliments and evasion. At one point, Spence angrily declared himself the victim of a "political assassination," carried out in the Observer, and he vowed not to let the affair destroy his reputation.

The declaration had no good effect on the commissioners, who concluded that Spence misused his title and should be formally reprimanded. Other than calling for Spence's removal, a reprimand is the most severe punishment outlined in the code. City council members, who appoint the members of the ethics commission, are expected to consider the recommendation later this fall. As part of the ruling, allegations that Spence improperly distributed confidential information and acted to advance his private interests were dismissed.

Shortly before the vote was taken, Commissioner Gloria Tarpley said she hoped the commission's findings would send a simple, strong message about the impropriety of Spence's behavior.

"There simply is to be no use of public titles in private matters," Tarpley said.

Because the ethics commission has no enforcement power, whatever course city council members choose to take when they consider Spence's case could set a precedent for what relevance the commission and the code will have over the future conduct of city officials.

In the meantime, there was no shortage of evidence that the ethics commission itself has a ways to go before it operates effectively. Spence's hearing, which began September 3, was so awash in procedural confusion that it had to be delayed for several days. When it resumed September 6, a trio of city attorneys was on hand to guide the commissioners through the process.

When Spence presented his defense, he only added to the confusion.

"I suppose I'd like to do this in story form, if you don't mind," Spence said.

"That's fine," Commissioner Calvin Bluiett responded, "but stick to the point."

That proved a difficult task for Spence. For more than an hour, Spence rehashed the contents of a written response he had already submitted. The dense legalese came with a timeline and 33 attached exhibits that focused on problems Spence claims he uncovered with Ramirez's restaurant. (Ramirez, who has in fact obtained all necessary city permits, has opened his restaurant, and the TABC has recently informed him that his application has been approved.)

None of the arguments changed the basic facts of the case. There was no question that Spence used his title not only to get a copy of Ramirez's application, but also to try to, in Spence's own words, "heighten" the debate over the proposed restaurant in the neighborhood. As part of his inquiry into Ramirez's restaurant, Spence publicly distributed a questionnaire on which he included his title as plan commissioner. He also used his public position to access city employees with questions and complaints he had about Ramirez's various permits.

About the only thing Spence demonstrated was that he doesn't like being questioned. That much was clear after Spence tried to argue that any concerned citizen would have done the same thing he did when he started investigating Ramirez's city permits. Jim Clark, Mayor Miller's appointee to the commission and Spence's sharpest critic, wasn't buying Spence's line.

"I'm not naïve enough to believe that your presence as a city plan commissioner didn't get your telephone calls answered," Clark said. "The fact is, the world doesn't work that way and we all know it."

Tarpley asked Spence to simply explain why he identified himself as a city official when he contacted the TABC. "That's a very good question," said Spence, who turned to Clark and added, "I suppose if Mr. Clark had asked that question, he'd have thrown in, 'Weren't you just trying to throw around your title?'"

Spence reluctantly conceded that his decision to use his title was "gratuitous, and in retrospect it was stupid." If that's the case, Clark said he wanted to know what Spence would suggest the commission do to "convey to people that you shouldn't have done what you did without destroying your career." The commissioners, he added, can't afford to be viewed as a bunch of pushovers.

Spence grew quiet.

"Very good question," he answered. After an uncomfortable moment, Spence said, "Can you say the question again?"

The question restated, Spence argued that the commission had no jurisdiction over his actions because the ethics code relates only to city documents and, in this case, he used his title on state documents [the TABC is a state agency]. Besides, he added, he didn't meet the code's requirement that he knowingly violated the code because he didn't know that private citizens could not access TABC applications.

"I've read the code at least a dozen times word for word," Spence said, adding that Ramirez's application is information that "is not under your umbrella."

Spence pounded his fist on a table to accentuate the point.

"I don't mean to come off as unrepentant or as oblivious to the ways that my actions could have been interpreted as hostile or inappropriate," he continued. "I would simply ask you to look very carefully at the code."

As the commissioners retreated behind closed doors, Spence stormed out of the conference room. In the hallway, Spence initiated his first face-to-face conversation with Ramirez. Spence said he was "poorly served by his aggressiveness" and that he regrets his behavior.

"My core error was that I gave you the impression that you were going to be ambushed," Spence told Ramirez. "However I approached it, I obviously put you on the defensive, and I apologize for it."

He then offered Ramirez his hand and Ramirez took it, promising that he would operate his restaurant with the neighborhood's best interests in mind.

When later asked whether he believes he did anything wrong, Spence was less forthcoming.

"There are lots of expressions of regret on the tape," he snapped, referring to the cassette tape recording of the day's proceedings. Asked if that answer was a yes or a no, Spence said, "That's a go-pay-a-buck-for-the-tape."

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