How to be a real life Municipal Gladiator - Texas City Attorneys · 2019. 9. 3. · Municipal...

How to be a real life

Municipal Gladiator

Leah Hayes, Attorney

Akilah Mance, Attorney

Olson & Olson LLP

2727 Allen Parkway, Suite 600

Houston, TX 77019

October 5, 2017 TML Fall Conference - TCAA Session

Headlines

“Bell, Calif. City manager gets 12 years prison for $6 million corruption scheme”

“Stockton Mayor arrested, accused of playing strip poker with a minor and giving them alcohol”


Headlines


*http://abc13.com/news/polk-county-mayor-accused-of-lying-

about-felonies/1641084/

*http://amarillo.com/news/local-news/2017-09-21/city-

panhandle-files-civil-suit-against-ex-manager-detailing-alleged

*http://www.valleymorningstar.com/news/local_news/article

_07833e4d-1e2e-51c3-bb86-1e3f516f384a.html

*http://www.ktxs.com/news/irresistible/sc-mayor-pulled-

over-on-lawn-mower-with-beer/621265669

*http://www.nbcnewyork.com/investigations/Joey-Torres-

Paterson-Mayor-Corruption-Trial-Plea-Deal-

446746483.html

When the job calls for Municipal Gladiators


What would a Gladiator do? Mayor McSketchy has been in a heated battle with a group

of citizens who are now threatening to get him out of office.

Word begins to spread that the District Attorney is investigating the Mayor for undisclosed illegal activities.

The City receives a grand jury subpoena asking for any and all evidence related to the mayor’s dealings on the Shady Park Project.


What would a Gladiator do?


Steps in the Criminal Process

Investigation

Formal Charges

Plea Bargaining

Trial

Final Disposition


Handling a grand jury subpoena

Grand Jury Subpoena- Duces Tecum

Code of Criminal Procedure (CCP) Chapters 19-21; 24

Investigative body (CCP Article 20.09)

Authority to Indict (CCP Article 21.01)

Proceedings are secret (CCP Article 20.02)

May issue subpoenas (CCP Article 24.02, 24.01)


Handling a grand jury subpoena

Grand Jury Subpoena- Witness Testimony

Authority to call witnesses (CCP Article 20.18)

City Attorney cannot be in the room (CCP Article 20.011)

Witness must be advised when investigation turns towards

them (CCP Article 20.17)

Witness who becomes a target, can consult attorney

outside the (CCP Article 20.17(c)(4) and (6))


After the grand jury concludes its investigation, the D.A. formally charges Mayor McSketchy with official oppression, theft-public servant, and bribery.

The Mayor asks for your advice on how to fight the case.



Who is the Client?

What does the Charter, Code of Ordinances or employment contract say?

Duties

Organizational Structure

Department of Law


Who is the Client?

Texas Disciplinary Rules of Professional Conduct

Rule 1.12- Organization as Client

Rule 1.01- Competent and diligent representation

Recent Opinions interpret the rules


Conflict of Interest

Texas Disciplinary Rules of Professional Conduct

Rule 1.06(b)- Conflict of Interest

Rule 1.12(e)- When adverse interests arise

Err on the side of caution


Conflict of Interest

Likely No Conflict If the City Attorney: Specifically advised Council of its legal obligations

Reviewed agenda item and expenditure before the vote

Made sure the election was properly conducted

Potential Conflicts

Charges of official oppression or misconduct

Charges of bribery or theft of public servant

Charges regarding improper campaign expenditures


After Mayor McSketchy is officially indicted, your voice mail and email is flooded with requests from local and national reporters.

They media wants to know the city’s response to the indictment.



Going Public

Attorney-Client Relationship

Statement should represent the organization’s interest

Role of the defense attorney

Trial Publicity: Rule 3.07 (TDRPC) Improper: Extrajudicial statements substantially likely to

materially prejudice proceeding

Proper: Statements of Fact which are in the public domain


Going Public

Official statement or Opening statement:

“The charge against each of them is completely unfounded

for the reasons explained below, which will be indisputable

facts when presented at any subsequent hearings.”

“The city council action in authorizing this purchase was completely legal, done in an open meeting, well within their authority, and was the implementation of excellent public policy.”

“Additionally, I have some thoughts about the archaic grand jury process.”


After the Mayor’s indictments, the cases are set for trial and many of your employees are subpoenaed to testify as fact witnesses in their capacity as City employees.

They all come to you for advice.



Preparing for Litigation

Witness preparation

First Rule: Tell the truth

Review potential questions and documents

Inform about their right to outside counsel

Explain representation of the organization


Preparing for Litigation

Witness Tampering (Penal Code 36.05) Offer or confer any benefit (or agree to)

Intent to influence testimony, appearance or evidence

Physical Evidence Tampering (Penal Code 37.09)

Alter, destroy or conceal

With intent to impair verity, legibility, or availability

Investigation/ Official Proceeding pending or in progress


After the case is set for trial, the pressure starts to mount for Mayor McSketchy to resign. The Council can’t seem to get anything done with this distraction.

Council member I. M. Bitter asks if the Mayor can be removed.



Can the Mayor remain in office?

It Depends…

Local Government Code Chapter 21

General Law Cities:

21.023 Removal from office

21.026 Petition

21.029 Trial



General Law City

21.025 General Grounds:

Incompetency

Official misconduct

Alcohol Intoxication on or off duty

21.031 Criminal conviction

Felony or misdemeanor involving official misconduct operates as an immediate removal



General Law City

21.025 General Grounds- Incompetency

Gross ignorance of official duties

Gross carelessness in the discharge of official duties; or

Inability or unfitness to promptly and properly discharge official duties because of a serious mental or physical defect that did not exist at the time of the officer's election



Home Rule City

Voters can force a recall pursuant to the Charter

Petition and recall (Election Code Chapter 277)



Home Rule City: What does the Charter Say? Grounds for removal :

Failure to maintain qualifications for office

Violation of Code of Ethics

Conviction of crime of moral turpitude

Violation of the Charter

Procedure:

Sworn complaint

Hearing before Council and Vote


What if the Mayor is charged with another offense like…



Contact us at:

[email protected] OR [email protected] All images and videos used in this presentation are the property of ABC Studies and Shonda Rhymes.


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How to be a real life Municipal Gladiator - Texas City Attorneys · 2019. 9. 3. · Municipal...

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