Highlights from McAllen
The presumption of innocence until the proving of guilt is a maxim most purport to live by. But in reality, the mere mention of a potential misdeed often leads to an assumption – or at least a consideration – of guilt, especially when it comes to public officials.
“You work as a public servant, and you serve in challenging times,” said Charles R. Kimbrough, attorney with Bickerstaff Heath Delgado Acosta LLP.
“People are skeptical of government,” he continued, “and when an accusation is made, people are reluctant to view it as benign.
“So what is your risk tolerance?” Kimbrough asked elected officials gathered at the McAllen Convention Center.
Some 130 county judges and commissioners convened in Hidalgo County June 6-9 for the 77th Annual South Texas County Judges and Commissioners Association Conference.
During his educational presentation, Kimbrough defined “conflict of interest” as “a conflict between the private interests and official responsibilities of a person in a position of trust.”
When it comes to this sensitive issue, commissioners court members need to be especially aware of two statutes:
· Texas Local Government Code Chapter 176 – Conflict Disclosure Statute With Criminal Penalty
· Texas Local Government Code Chapter 171 – Conflict Disclosure Statute With Increased Criminal Penalty
Chapter 176 requires the filing of a conflict disclosure statement in certain circumstances related to government contracts, Kimbrough explained. However, this statute does not restrict or limit the ability of the affected county official to discuss, decide, or vote upon the contract being considered.
The county official must file the conflict disclosure statement if the vendor under consideration has:
1. an employment or other business relationship with the county official or first-degree family member that results in either receiving taxable income, other than investment income, of more than $2,500 in the 12 months prior to the contract consideration; or
2. given the official or family member one or more gifts valued at more than $250 in the 12 months prior to the contract consideration.
The second key statute, Chapter 171, requires the filing of a special disclosure affidavit. However, this statute was designed to identify and disclose the conflict before any action is taken and requires the official to abstain from participation if a conflict exists. To determine a conflict under Chapter 171, officials should consider three key questions:
1. Is a vote or decision pending before a local governmental entity that involves a “business entity” or “real property?”
2. If so, does a “local public official” of that entity have a “substantial interest” in the “business entity” or “real property?”
3. If so, will action on the matter have a “special economic effect” on the business entity – or on the value of the real property – that is distinguishable from the public effect?
Violation of both of these statutes may result in criminal penalties.
“So what is your risk tolerance, as a public servant and as a commissioners court?” Kimbrough asked. “The law is all around you, so you really have no excuse.”
A former Caldwell County criminal district attorney, Kimbrough acknowledged the challenges associated with public service and encouraged the judges and commissioners to “be right on the law, right on the ethics, and avoid even the appearance of impropriety.”
The wide array of responsibilities faced by the court means sometimes officials will have to delve into statutes they’ve never heard of before. For example, when a Wal-Mart distribution center expressed an interest in San Patricio County and queried the county on a tax abatement, County Judge Terry Simpson could not find a current tax abatement policy on file.
“So I began my research,” Simpson recounted.
To participate in a tax abatement, each taxing unit must adopt tax abatement guidelines and criteria that any tax abatement proposal must meet to be eligible for an abatement, said Tom Pollan of Bickerstaff Heath Delgado Acosta LLP. The guidelines and criteria are effective for two years.
During their class session on abatements, co-presenters Simpson and Pollan urged officials “to negotiate and negotiate so that you can come to an agreement that benefits the county.”
“You have to really think about what you’re going to get versus what you’re going to give up,” Simpson emphasized. (For additional information on tax abatements, see Key Concept, Page ?.)
When it comes to analyzing the law, experts are still wading through federal health insurance reform. Quincy Quinlan, associate general counsel with the Texas Association of Counties, forecasted the effects on Texas including the following summarization: Because expansion of coverage is expected to drastically reduce the number of uninsured persons, multiple state and local programs will be reviewed for restructuring or elimination, including:
v county indigent health care programs
v children with special health care needs
v hospital trauma funding
v allocation of tobacco settlement funds
v charity hospital care
v local mental health authorities
v new federal funding for community health clinics
These classes on conflict of interest, tax abatements and health care are just a few examples of key issues covered during the four-day meeting, with other topics detailing bidding, road management and signage standards, and collecting court fines and fees.
The general and breakout classes were complemented by a variety of social activities, including pool and poker tournaments and an elaborate Host Court Night featuring mariachis, ballet folkloric, comedy, and a live band.
During the Annual Association Night, officials and their guests welcomed the incoming slate of officers, comprised of:
· President Jerry Garza, Webb County commissioner
· First Vice President Neil Fritsch, Calhoun County commissioner
· Second Vice President Joe Rathmell, Zapata County judge
· Immediate Past President Raul Ramirez, Brooks County judge.
Members of the South Texas Association gave a special show of thanks to Ramirez for his leadership and service to the organization and its 67 member counties.
The 78th Annual South Texas County Judges and Commissioners Association Conference will take place June 18-21, 2012, at the Hyatt Regency Hill Country Resort in San Antonio. H – By Julie Anderson