Planning and Zoning Commissioner Carter Morris' Response to Ethics Complaints 2013-1 and 2013-2

I am providing this written response to the two ethics complaints filed against me by Forrest Fulkerson on July 10, 2013. Complaint 2013-1 complains about a discussion I had with City Council Member John Thomaides on January 12, 2012 at Cafe on the Square. Complaint 2013-2 complains about statements I made in an open San Marcos City Council meeting on January 17, 2012. I am responding to both complaints together in this document. I reserve my right to appear at the hearing on September 11, 2013, to make a statement and be represented by counsel, and to call and question witnesses. I do not know why Mr. Fulkerson saw fit to file these ethics complaints a year and a half after the fact, but I vigorously contest the allegations. I fully complied with the Ethics Code and acted entirely properly.
I recused myself from all Planning and Zoning Commission discussion and consideration of the Sessoms Road Project.

I filed a disclosure affidavit for all Planning and Zoning Commission meetings where the Sessoms Road Project matter was on the agenda: November 22, 2011, December 13, 2011, and January 11, 2012. At each meeting, when the matters came up on the agenda, I recused myself from the meeting room. I didn't participate in any discussion of the agenda items from the dais or otherwise during any Commission meeting. I didn't vote on the items and I didn't further participate in the matter before the Commission in any way.
I did not violate the Ethics Code because any discussions I had about the Project were as a private citizen, not as a Commission member. Everyone knew and understood that.

I had discussions about the Project in my capacity as a private citizen, during my own time, not during Commission meetings or in the hearing room. I talked with many people, both city officials and private citizens. Not a single person I spoke with told me they thought those discussions were in violation of the City Ethics Code. Not a single person refused to meet with me or refused to discuss the Project with me; everyone I spoke with understood that I was speaking as a private citizen, not in any official capacity as a Commissioner. When I had breakfast with Council Member John Thomaides on Janumy 12, 2012, it was clear that I was explaining the Project in my capacity as a private citizen, not as a Commissioner. He was willing to speak with me about the Project. He seemed glad to get the information I provided to him. He raised no objections to my speaking with him about the Project and never said he thought I was violating the Ethics Code. When I spoke about the Project before City Council on January 17, 2012, I identified myself as a lifelong San Marcos resident, not as a Commissioner. I spoke during the Citizen Comment period, along with other San Marcos citizens. I spoke for three minutes before the Council with City Attorney Michael Cosentino present the whole time. Neither Mr. Cosentino, who I rely on

for legal advice as to my duties as a Commissioner, nor any Council member said that my speaking during the Citizen Comment period was improper in any way.
It wasn't until after I had spoken with Council Member Thomaides and after I had spoken during

the Citizen Comment period at the City Council meeting that Mr. Cosentino told me that I shouldn't have any discussions about the Project with any City officials whatsoever. I immediately stopped having any discussions, even on my own time as a private citizen about the Project with any City official, although I disagree with Mr. Cosentino's interpretation of the Ethics Code. I did not violate the Ethics Code because my discussion with Council Member Thomaides and my statements at the Citizen Comment period during the Council Meeting were not part of an "official action" or a "matter" before the Commission. The general conflict of interest rule in the Code of Ethics says that a city official may not "take any official action" that is likely to affect their or an immediate family member's economic interest. Section 2.423(a). I did not "take any official action" as a Commission member - I recused myself and left the meeting room each time an agenda item involving the Project came up. The recusal rule provides more detail about what a city official must do to avoid taking "any official action" on a matter within his authority. Section 2.423(a). The rule says the official must Immediately refrain from further participation in the matter, including discussions with any persons likely to consider the matter, from the time he or she discovers or reasonably should have discovered the matter triggering the recusal. Section 2.423(c)(l). I followed this rule. I did not participate in any "matter" pending before the Commission involving the Project. In each of the three Commission meetings where any agenda item involving the Project came up, I did not participate in any Commission discussions on the matter and I left the meeting room. The recusal rule is limited to "the matter," and my only role as a city official is as a volunteer Commissioner. The only "matters" that come before the Commission are those on its agenda. I identified those matters on the recusal forms that I filed, and I recused myself from any and all Commission discussions, actions and votes on those matters. The recusal form that is provided to me to use as a Commissioner confirms that "the matters" I have to recuse myself from are agenda items at Commission meetings. The recusal form has blanks for me to identify which agenda items and Commission meetings I was recusing myself from. I understood this to indicate that the scope of my recusal was patiicipation in those agenda items before the Commission - not that I was prohibited from having conversations, as a private citizen, with a member of City Council or speaking as a citizen before City Council.

The Ethic Code's Standards of Conduct confirm my understanding of the scope of the Ethics Rule in several ways. First, City Council members have a broader recusal requirement than other city officials, including commissioners. City Council members may not knowingly represent any private person, including the city council member or any immediate family member, or any group or interest in any matter before any department, agency, commission or board of the city ... Section 2.424(c). The rule expressly provides that City Council members - and only City Council members - may not represent anyone before any city department. There is no similar language applying to Commissioners that prohibits Commission members from representing persons in discussions with City Council members or at a City Council meeting. The fact that there is this specific, broad recusal requirement for City Council members confirms that the rule for Commissioners is narrower. Second, there is a specific recusal requirement for Planning and Zoning Commissioners, but it does not apply to discussions with City Council members or appearance before the City Council: A member of the planning and zoning commission shall not knowingly represent the member or any other person, group or interest in any matter before the zoning board of adjustments involving land use or development ... Section 2.424(e). This is a very specific recusal provision. There would be no need for this specific rule if the general recusal rule applied to a Commissioner acting as a private citizen having discussions with any city official. This confirms that my meeting with Council Member Thomaides and my speaking at the Citizen Comment period did not violate the Ethics Code.
I relied on the Ethics Commission, the Mayor, the City Council, the other Commissioners and especially the City Attorney in reaching my understanding of the scope of recusal.

This is not just my interpretation of the Code. As far as I can tell, this was the interpretation of every city official that I had any contact with, until after January 17, 2012, when Mr. Cosentino told me to stop having any conversations about the Project with anyone at the City. First, the same complainant who brought Complaint 2013-1 and 2013-2 brought an ethics complaint on January 17, 2012 about the same Project based on essentially the same facts, as far as I can tell. The Ethics Commission did not pursue the ethics complaint, and so I presumed that my actions had not been in violation ofthe Ethics Code. Second, as noted, when I met with Council Member Thomaides, he did not indicate in any way that he thought I was violating the Ethics Code by speaking with him. I believe he is an ethical man, even though we have disagreements about City policy. Presumably, if he believed I was

not permitted to speak with him about the Project, he would not have patiicipated in a supposed breach of ethics. Third, when I spoke before City Council on January 17, 2012, the Mayor recognized me to speak, no Council member objected, and Mr. Cosentino sat and listened to my three minutes of discussion of the Project. All of these people lmow I serve on the Commission. Mr. Cosentino didn't advise me not to speak and didn't tell me I would violate the Ethics Code ifl did. I relied on the Mayor and Council's silence, and especially on Mr. Cosentino's silence, in speaking before the Council. After the fact, Mr. Cosentino told me he thought my statements were inconsistent with the Ethics Code. I disagreed, but I followed his instructions.
If the Ethics Rules are going to be broadened, they should be revised through a public process. It would be unfair to sanction me, after the fact, based on a new interpretation of

the Code I was not told about. Worse, reading the current rules so broadly would violate Texas citizens' right to free speech and right to petition their government.

For some reason, Mr. Fulkerson saw fit to file two ethics complaints a year and a half after the fact, even though he had filed a previous ethics violation over the same matter that was dismissed. For some reason, this time the Ethics Commission decided to take up the complaints rather than dismiss them. I do not lmow why, but I am prepared to defend myself and my name. I am a volunteer on the Commission. I devote my time to the Commission's work because I believe I have a duty to give back to the City where I grew up and live. Sanctioning me for an "ethics violation" for my volunteer work for the City would be a serious stain on my character. It would be unfair, would violate my Constitutional free speech and petition rights, and would set a terrible precedent for others who might consider volunteering their time and expertise to the City. Citizens do not give up their First Amendment rights when they take on volunteer work for the City. They may still petition their City Council members and City Council, so long as they are not acting in their capacity as a pati-time, volunteer city official. That's what I did, and that was my understanding of the Ethics Rules. As far as I lmew and as far as anyone told me, that's what other city officials' understanding of the rules were, as well. There obviously was no harm done to the process by my private citizen statements, because the Project was roundly defeated at City Council. If the Ethics Commission believes the scope of the recusal rule needs to be broadened, it should recommend that to City Council, which can publicly consider, debate and vote on whether broadening the rules is a good idea, and is consistent with the Constitution. But such a change should not be made by "making an example of' me based on my good faith discussion with a Council member and my citizen comments to the City Council.

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