Some Austin leaders uneasy after commission demands informant identity

Will whistleblowers go silent at Austin City Hall if they know their names could come out?

The Austin City Council is revisiting the power it granted the Ethics Review Commission six months ago to issue subpoenas, as the panel’s use of the newfound power could unmask an informant who confidentially reported apparent wrongdoing.

Though they’re waiting to get the details from city lawyers, some council members are concerned. Council Member Kathie Tovo said she wants to have an environment where city employees feel comfortable reporting wrongdoing.

“It does concern me that in giving the Ethics Review Commission subpoena power, we may have created an environment where people are afraid to come forward,” she said. “I have to give some thought to whether that’s an appropriate power.”

The commission, which doles out low-level sanctions or recommending prosecution for violations of city rules, used its subpoena power last month to demand that investigative auditor Nathan Wiebe turn over notes and records of his meetings with an informant related to a misuse of city resources investigation of former police monitor Margo Frasier.

The 6-2 vote, with two abstentions and one absence, came after Frasier’s attorney requested the information. Frasier is accused of occasionally using city time, and her city laptop, to perform private law enforcement consulting work.

RELATED: Evidence heard in former police monitor’s ethics case

Auditors immediately pushed back, arguing that being unable to promise confidentiality to employees and members of the public concerned about retaliation would gut their ability to investigate wrongdoing within the city.

Auditors have complied with the subpoena and turned over the information to the commission, but it is still in the hands of city officials who can keep it confidential. Corrie Stokes, Austin city auditor, worries about the impact if the commission publicly considers it or turns it over to Frasier’s lawyers.

Stokes said the commission’s move could have “a chilling effect” on people being willing to talk to her office. She noted that her office is the first stop for complaints that fall into many different categories, from misuse of city resources to harassment and discrimination. She added that the information presented to the commission is based on Wiebe’s investigation, not the word of the initial informant.

Most members of the commission did not return phone calls to comment, but member Donna Beth McCormick said she had no qualms about demanding information about the Frasier informant.

“If we have subpoena power, we need to get everything that’s there,” she said, adding: “We’re not the CIA…If (whistleblowers) are that worried about their career, they need to get some legal advice.”

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The commission’s subpoena powers were part of a broader ordinance the City Council approved earlier this year aimed at strengthening the city’s ethics rules.

The council’s early discussions about the ordinance didn’t touch on why subpoena powers were being added. But the Ethics Review Commission has expressed frustration when an official refused to cooperate.

In 2015, several commissioners said they were disappointed when then-Council Member Don Zimmerman didn’t attend a hearing on complaints over his campaign finance reports. Then-chairman Austin Kaplan said Zimmerman’s absence was demeaning to the commission and hamstrung its ability to get to the bottom of the ethics allegations.

Since the new ethics ordinance went into effect June 1, the commission has used its subpoena power only one other time: to call for former city music manager Don Pitts to appear at a hearing scrutinizing a fake invoicing scheme involving him and a subordinate. He couldn’t make it to the meeting and the commission said it would refer his no-show for prosecution, though, as of last week, Pitts said no citations have been filed against him.

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The council is set to discuss the subpoena in the Frasier case, and possibly take some action, Thursday.

“I know what my gut is telling me,” said Council Member Leslie Pool. “I do not feel that unveiling a whistleblower in this context, which is quasi-judicial, is appropriate.”

She added that she was surprised the Frasier complaint, essentially alleging some non-work-related computer use, rose to the level of the commission taking that action.

Council Member Greg Casar said he is waiting to get more information, but wants to weigh dueling concerns that whistleblowers could be unveiled with the possibility that some complaints may be politically motivated.

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