How to be a real life Municipal Gladiator - Texas City Attorneys · 2019. 9. 3. · Municipal...
Transcript of 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”
October 5, 2017 TML Fall Conference - TCAA Session
Headlines
October 5, 2017 TML Fall Conference - TCAA Session
*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
October 5, 2017 TML Fall Conference - TCAA Session
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.
October 5, 2017 TML Fall Conference - TCAA Session
What would a Gladiator do?
October 5, 2017 TML Fall Conference - TCAA Session
Steps in the Criminal Process
Investigation
Formal Charges
Plea Bargaining
Trial
Final Disposition
October 5, 2017 TML Fall Conference - TCAA Session
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)
October 5, 2017 TML Fall Conference - TCAA Session
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))
October 5, 2017 TML Fall Conference - TCAA Session
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.
October 5, 2017 TML Fall Conference - TCAA Session
What would a Gladiator do?
Who is the Client?
What does the Charter, Code of Ordinances or employment contract say?
Duties
Organizational Structure
Department of Law
October 5, 2017 TML Fall Conference - TCAA Session
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
October 5, 2017 TML Fall Conference - TCAA Session
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
October 5, 2017 TML Fall Conference - TCAA Session
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
October 5, 2017 TML Fall Conference - TCAA Session
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.
October 5, 2017 TML Fall Conference - TCAA Session
What would a Gladiator do?
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
October 5, 2017 TML Fall Conference - TCAA Session
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.”
October 5, 2017 TML Fall Conference - TCAA Session
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.
October 5, 2017 TML Fall Conference - TCAA Session
What would a Gladiator do?
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
October 5, 2017 TML Fall Conference - TCAA Session
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
October 5, 2017 TML Fall Conference - TCAA Session
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.
October 5, 2017 TML Fall Conference - TCAA Session
What would a Gladiator do?
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
October 5, 2017 TML Fall Conference - TCAA Session
Can the Mayor remain in office?
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
October 5, 2017 TML Fall Conference - TCAA Session
Can the Mayor remain in office?
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
October 5, 2017 TML Fall Conference - TCAA Session
Can the Mayor remain in office?
Home Rule City
Voters can force a recall pursuant to the Charter
Petition and recall (Election Code Chapter 277)
October 5, 2017 TML Fall Conference - TCAA Session
Can the Mayor remain in office?
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
October 5, 2017 TML Fall Conference - TCAA Session
What if the Mayor is charged with another offense like…
October 5, 2017 TML Fall Conference - TCAA Session
What would a Gladiator do?
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.
October 5, 2017 TML Fall Conference - TCAA Session