Speaker: Scott Brumley 7/13/2017 Don t Do It Even If It Feels Good Problem Areas with Potential to Cost You Credibility or Your Job Scott Brumley POTTER COUNTY ATTORNEY Amarillo, Texas 806/379 2255 scottbrumley@co.potter.tx.us I Said So and So Does the Constitution TEX. CONST. art. V, 24: Removal for: Incompetency Official misconduct Habitual drunkenness other causes defined by law TEX. CONST. art. XVI, 2: Exclusion from office if convicted of bribery, forgery, other high crimes. TEX. CONST. art. XV, 7 Judgment for judges So, You re Not Here to Check on My Welfare, Officer? Quo Warranto Qualifications (Ch. 66, CPRC) Removal via civil proceeding Misconduct, incompetency, drunkenness (Ch. 87, LGC) Removal via criminal conviction Criminal official misconduct Removal via Commission on Judicial Conduct Violations of Code of Judicial Conduct 1
Quo Warranto: If It s in Latin, It Can t be Good for You Challenge to right to hold office Protection against usurpation, unlawful occupancy Exclusive means to determine: Qualifications Forfeiture Vacating office May only be brought by county attorney, district attorney or attorney general Private individuals may request suit Removal: That Little Voice Saying Adios, Amigo Purpose: protect office, not officeholder Not punitive Undoes election (generally unrelated to election itself) Constitutional standards, procedure spelled out in Ch. 87, LGC Quo Warranto Civil Practice & Remedies Code Ch. 66 Statutory grounds Person usurps, intrudes into, unlawfully holds or executes office Public officer forfeits office (by law) Usurp = take possession of without legal claim, seize & hold by force or without right Act/omission causing forfeiture removaltype misconduct 2
Putting the Quo with the Warranto Fall short of qualifications for office No de minimis failures re: qualifications Move out of precinct/county/district Lose required license Get removed, but refuse to leave office* Resign (sometimes)* * See TEX. CONST. art. XVI, 17 Why It Should Matter to You Ouster from office Award of costs Fine for usurping, intruding into or unlawfully holding/executing office Further relief necessary to give effect to judgment Appeal is accelerated In the Removal Crosshairs District attorney County Attorney County judge County commissioner County clerk District clerk District & county clerk County treasurer Sheriff County surveyor County tax assessorcollector Constable Inspector of hides & animals Justice of the Peace Other constitutional, statutory county officers 3
Job Loss Not Attributable to the Recession Incompetency Official misconduct Intoxication (on/off duty) Caused by drinking alcoholic beverage Get a doctor s note Failure to timely execute required bond, post additional required security Official Misconduct Intentional, unlawful behavior Relating to official duties By officer entrusted with administration of justice or execution of law Includes intentional or corrupt failure, refusal, neglect to perform legal duty Generally must be after term begins Illustration by (Bad) Examples Law enforcement officer commits witness tampering Law enforcement officer commits false imprisonment Willfully using county vehicles, fuel for private benefit Knowingly setting tax rate wholly insufficient to fund operations Judge issues warrant without complaint or probable cause, assesses impermissible fees Officer presents false reimbursement claims and collects illegal fees Recurrent shortfalls in office money Yes, that would mean theft, too. 4
These Defenses Work Not Two wrongs make a right You got me on that one, but not on the rest of em It s the secretary s fault But I meant well Incompetency Not same as stupidity/bumbling Gross ignorance of official duties Gross carelessness in discharge of official duties Unfitness/inability to promptly, properly execute official duties due to serious physical/mental defect Only post election day defects count (generally) The Peter Principle at Work Using county funds to repair commissioner s private spray rig; donating it to county by mentioning it to one other commissioner JP s failure to successfully complete 80 hour (20 hour subsequent) course on duties Commissioner s failure to complete 16 hours of duties training Sheriff s failure to complete 40 hour course on law enforcement County treasurer s failure to complete introductory course on duties, subsequent 20 hours of continuing ed. Elected law enforcement officer who fails to obtain TCLEOSE license Failure to control, properly dispose of property entrusted to officer Personnel policies (potentially) 5
My Prediction for the Fight? Pain. Suspension (probably without pay) Discovery about indiscretions No right to refuse to testify Loss of job and unflattering publicity Conviction: It s Not Just for Prison Anymore Conviction of felony, misdemeanor involving official misconduct = immediate removal from office Despite jury requirement, guilty plea counts Eligible offenses include: Bribery Perjury Forgery Abuse of official capacity Official oppression (most likely) Nepotism Some conflict of interest provisions If You Don t Wanna Pay for Em, Why Would You Hire Em? Applies to relation within third degree of consanguinity, second degree of affinity Consanguinity = relation by blood Affinity = relation by marriage 3 rd degree of consanguinity: Parent or child; brother, sister, grandparent or grandchild Great grandparent, great grandchild, aunt, uncle, niece, nephew 2 nd degree of affinity: Husband, wife; parent or child of spouse; spouse of individual s parent or child Brother, sister, grandparent or grandchild of spouse; spouse of individual s brother, sister, grandparent or grandchild 6
Family Can Be More than Awkward Public official may not appoint, confirm or vote for appointment/confirmation to publicly funded position of Person related to official within relevant degree; or Person related to another board member within relevant degree Using influence as candidate, trading also prohibited When the Family Tree Falls on You Officer who violates nepotism law shall be removed from the individual s position. May not approve payment of compensation to illegally hired relative Fine of $100 to $1,000 How Can Making Money Conflict with My Interests? Commissioners court member who has substantial interest in business entity or real property must: File affidavit stating nature, extent of interest Abstain from voting or participating in matter affecting interest Violation does not void action (generally) Constitutes class A misdemeanor 7
Chapter 176: Disclosing What You May Want to Keep Covered Applies if contractor, potential contractor: Has employment, business relationship with CC member (or family of CC member) resulting in receipt of taxable income Included interest bearing checking account (see Op. Tex. Att y Gen. No. GA 0446 (2006)) See now 176.003(a)(2)(A), 176.001(2 b) (excepting investment income, defining that to include interest from checking/savings account) Has given gifts to CC member (or family) totaling $250 within 12 month period Chapter 176 Disclosures Form available on Ethics Commission website (http://www.ethics.state.tx.us/whatsnew/conflict_forms.htm) Relationship, including nature & extent Gifts to CC member (or family) within 12 month period Acknowledgment that disclosure applies to family members and covers relevant 12 month period Signature under oath, penalty of perjury Failure to file = class C misdemeanor Applies to commissioners, agent of county who exercises discretion in the planning, recommending, selecting, or contracting of a vendor Moonlighting: OK TV Show, Risky Public Employment Strategy TEX. CONST. art. XVI, 40: Dual office holding County commissioners, JPs exempted Applies only to officers Incompatibility Conflicting loyalties: public officer may not hold two offices with conflicting public duties Self appointment: person may not be both member of body making appointment and appointee of that body Self employment: public officer may not serve in employment position that public officer supervises TEX. CONST. art. XVI, 65: Resign to run Applies to all county elective offices if > 1 year left in term 8
Lobbying: The Efficiency of Group Wheedling Gov t Code 305.026 Counties may hire registered lobbyists Elected/appointed officials, full time employees may lobby OK to pay membership dues to statewide assoc. (at least 25% membership) which pays/employs registered lobbyist Loc. Gov t Code 89.002 Authorizes county money for membership dues in statewide association of counties Association, employees may not lobby, contribute to or endorse candidate May provide information Thanks for Speaking. You Have the Right to Remain Silent Ethics Advisory Op. No. 484 (2009) Title 15, Election Code Prohibition: Accepting from corporation Transportation Meals Lodging In return for addressing audience/participating in seminar Officeholder contribution? Contribution to defray expenses Incurred by officeholder in performing duty/activity in connection with office Not reimbursable with public money Third degree felony Questions to Address Ethical Dilemmas 1. Have you defined the problem accurately and completely? 2. How would you define the problem if you stood on the other side of the fence? 3. How did this situation occur in the first place? 4. If you were assigned to take the place of any of the others interested in this situation, would you perceive your decision to be essentially fair, given all the circumstances? 5. What is your intention in making this decision? 6. How does this intention compare with the probable results? 9
Questions (cont d) 7. Whom could your decision or action injure? 8. Can you discuss the problem with affected parties before you make your decision? 9. Are you confident your position will be as valid over a long period of time as it seems now? 10. How would you feel and be regarded by others (working associates, family, clergy, etc.) if details of your decision were disclosed for all to know? Questions or Comments? Scott Brumley POTTER COUNTY ATTORNEY Telephone: (806) 379 2255 FAX: (806) 379 2267 scottbrumley@co.potter.tx.us 10