Ethics Review Commission declines to weigh in on city anti-discrimination and harassment policy

City Council recently asked the Ethics Review Commission to review its proposed amendments to the anti-discrimination/anti-harassment portion of the City Code, which includes language such as “No City official or employee shall engage in conduct or use language that is offensive, harassing, sexually suggestive, or hostile.”

Last Wednesday night, the ethics commission debated whether Council’s request falls under the purview of ethics. It eventually determined that the city’s anti-discrimination/anti-harassment policies did not seem to be under that umbrella.

“You can be a bigot, a racist, a homophobe – I don’t know if that’s necessarily an ethics issue,” said Commissioner Brian Thompson.

Although the commission supported the spirit of amending the policies in the current City Code, members unanimously agreed that that particular function does not fall under the jurisdiction of the commission.

“The stuff we do is already under such assault by the freedom-of-speech crowd,” said Thompson.

The Ethics Review Commission already has to wade through gray areas of code in order to interpret the language as it applies to individual cases. However, in the context of litigating discrimination complaints, “even the Supreme Court right now … are not getting this right the way I would want them to get it right sometimes. To put it into this group and expect us to get it right … when you’re dealing with very polarized constitutional issues … it’s pretty tough stuff,” said Commissioner Debra Danburg.

However, commissioners noted, such tough conversations are part of what makes Austin such a progressive city. According to Danburg, the protected classes in Austin are “light years” ahead of those who are protected on a state or even national level. She referenced the polarizing discussions about the transgender bathroom bill in 2017 and emphasized the difference in the way the contentious issue was approached by City Council and the state Legislature.

Achieving such widespread protected status, though, is the result of a process of disagreements and discussion. Commissioner J. Michael Ohueri pointed out that that would not be possible if city staff, board members and commissioners are concerned that tough conversations will potentially lead to violating the city’s code of ethics.

According to City Clerk Jannette Goodall, if someone is found to be in violation of the City Code and the Standards of Conduct, they can be removed from their position. However, if the person is a Council appointee, he or she will have to be removed from his or her post by a majority vote from Council.

“Council would prefer that they get a recommendation from some board or commission on that (their choice for removal),” explained Assistant City Attorney Lynn Carter.

The commissioners agreed that while it is important for a Council advisory body to weigh in on the matter, they decline to do so. They suggested that the Human Rights Commission might be better equipped to make a recommendation on the language of the amendments.

“We agree with the general sentiment of what is trying to be accomplished,” explained Commissioner Dennis Speight. However, he agreed with Commissioner Thompson, who pointed out that the Ethics Review Commission is not and should not be the “speech police.”

Photo by John Flynn.

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