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Austin City Council shields whistleblowers from ethics board subpoenas

Austin’s Ethics Review Commission may not subpoena the identities of city whistleblowers, the City Council said unanimously Thursday, smacking down one of the panel’s first uses of the subpoena power the council granted this year.

The ethics commission is tasked with administering low-level sanctions or recommending that attorneys prosecute violations of city rules. Last month, it subpoenaed records from city investigative auditor Nathan Wiebe detailing his initial meetings with an informant with a tip that triggered an investigation into whether former Police Monitor Margo Frasier misused city resources.

Frasier is accused of occasionally using city time, and her city computer, for private law enforcement consulting work. City auditors immediately said disclosing informants would jeopardize their work, and they said their finding that Frasier violated ethics rules is based on Wiebe’s investigation, not a tipster’s word.

Council members agreed with the auditors’ concerns and voted Thursday to codify that the identity of informants in city complaints shall remain confidential and that the commission may subpoena only written information that is available to the public at large via the Public Information Act.

BACKGROUND: Ethics panel draws scrutiny over whistleblower’s ID

Furthermore, the information already turned over on the Frasier case, which has remained in the hands of city attorneys, should not be turned over to the ethics commission or anyone else, the council decreed.

Auditors celebrated the move.

“Had the council not taken action today, it would have jeopardized the whole program,” Wiebe said.

City Auditor Corrie Stokes said an anonymous reporting process is a key component of finding out about wrongdoing within the city.

“Being able to report things anonymously makes people more comfortable,” she said. “They won’t be retaliated against.”

The commission subpoenaed the information at the request of Frasier’s attorneys, Perry Minton and Zooey Wharton. Minton decried the council’s vote Thursday, saying that the witness statements were important for much more than just the identity of the informant, and that how an investigation is originated is important to its credibility.

“If the government grants a tribunal the power to sanction someone in any form, they must also grant the accused the right to defend themselves,” Minton said. “The credibility of the person behind any statement is critical. These are basic American values.”

Without the materials requested, Frasier will not get a fair hearing, Minton said.

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Ethics Review Commission Chairman Peter Einhorn, who was one of two members to vote against issuing the subpoena in the Frasier case, did not return calls on the subject. Last week, the only commission member to comment was Donna Beth McCormick, who defended asking for the informant’s identity.

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

Council members might not be finished tweaking the commission’s subpoena power. They directed staff members to bring other potential changes to them in February.

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