I keep hearing that Dee Margo is going to run.
Do what you will with this.
District Attorney Jaime Esparza is making a campaign play to get his name in the papers by saying he's asked the Texas Rangers to review what is essentially a human resources matter. The thought of the legendary arm of Texas law enforcement stopping their important work keeping the public safe to intervene in this political spat makes me laugh. I can just see the Texas Rangers riding into to town and sentencing all involved to 10 minutes in timeout and no dessert with dinner.
What you should take away from this is that Esparza isn't equipped to read a ten page report from an attorney and decide whether anything bad happened or not. Are you kidding me?
You've got a better shot of the Texas Rangers playing baseball downtown than you have of the Texas Rangers investigating this human resources issue.
Thanks goes to all of you for the emails about the city manager, city attorney, mayor etc. et al - I can't get back to all of you, but I can respond once here.
First off - The Fischer Report Download Comprehensive (1)
My thoughts on this....
I'm not sure now what Ross Fischer was hired to do. It looks as if he decided the paving and speed bumps were trumped up bullshit that were well within city manager/staff's powers to execute. Fischer essentially rolled his eyes and ignored those two because they were nothing more than normal city business. Bottom line - The El Paso Times has mud on its face for accusing Tommy Gonzalez of breaking the rules when in fact he was following them (more on this in a minute).
The new thing here was the financial disclosure requirements for the city manager. It's $1,400 and it happened years ago... I'm really not sure why this is a big issue. I think Fischer was forced to include something negative - or perceptively negative - about the city manager and this is all he could come up with. The fact that the information about the honorarium was so readily available to Fischer makes me question if there we ever an attempt to conceal this income from anyone. It comes down to being an honest mistake.
That's it... all that pain for report that absolves the city manager of any wrongdoing. Hell, it shows that the city manager operates in a rather transparent manner given how readily available all the "evidence" was during the investigation. In a city where we constantly cry about "transparency," it's ironic that the most transparent guy in town gets shit on.
Now to your questions
Q: Can Tommy Gonzalez sue the El Paso Times?
A: Yes and no. You can sue anyone for anything. However, you might not get anywhere with it. In this case the newspaper walked up to the line, but is okay. In their opinion Gonzalez's answers to Fischer's questions led them to label Gonzalez a "bad manager." Being a bad manager isn't a crime and most successful defamation lawsuits center around false accusations of criminal behavior. The credibility of El Paso Times' editorial board has been damaged and that's probably punishment enough.
Q: How many investigations will find Tommy innocent?
A: I'm assuming this question is really asking - how many times are they going to investigate the city manager and find he's done nothing wrong. I don't know, they've got time and money to spend on such things. There should be some serious question as to why they hired Fischer to tell them exactly what they already knew - Gonzalez didn't do anything wrong. In fact, it has been proven he did everything right. At some point this becomes harassment and Gonzalez files a lawsuit and wins a big duffle bag full of your tax dollars. I would ask your city representative to cease all the harassment in order to protect your tax dollars.
Q: Why did Tolbert get his own investigator even though his ethics complaint didn't apply to Gonzalez?
A: I think Ross Fischer's initial inquiry to the allegations led to a conversation with the mayor and city attorney that went something like this:
Mayor/City Attorney: "So Ross, what did you find?"
Ross Fischer: "Nothing. You people are crazy and are going to get your asses sued to the moon. I'll send you an invoice."
That's when the city attorney decided that Tolbert's complaint would be a great vehicle to continue to harass the city manager. The question is whether or not she should have shut down the investigation the second she was made aware of the first paragraph of the ethics complaint form.
Q: Why did council agree to hire Fischer if they already knew the city manager was cleared of wrongdoing by the public integrity unit?
A: Because they are a bunch of wimps who are easily manipulated by the mayor, city attorney, El Paso Times and gossip. The political posturing by Rep. Niland got pretty bad and infected the rest of council who didn't want to seem like they were the only ones not bursting with faux outrage. Read up on how the Salem Witch trials went... it explains a lot about the mentality of council during this process. There are those on council who owe Gonzalez some big apologies for believing the bullshit that was being spread around. Gonzalez did not have an inappropriate deal with the financial advisers - an allegation several council members were spreading around to whoever would listen.
Q: What happens to the city attorney if she gave bad advice?
A: I'm not sure she gave bad advice. She may have just overlooked some of the process here in order to achieve the desired outcome - the firing of Tommy Gonzalez for cause. It's interesting how quickly and efficiently Barbara Carrasco's ethics complaint was thrown out and how the first words on the page of Tolbert's complaint were completely ignored.
City council is now technically the city attorney's boss, but they've never assumed that role. The could vote her out if they wanted. But they won't. They're too scared or dependent on her to do anything. And let's be honest - she's proven herself smarter than all seven of them combined time and time again. You know that old trick where the bully tells you that if your hand is bigger than your face you have cancer and when you put hand up to your face he smacks it causing you to slap yourself - well that's pretty much what the city attorney does to council members every week.
Q: Why are you protecting Tommy?
A: I'm not protecting the city manager per se. I'm more interested in making sure things get back to being somewhat fair and a lot more productive. I hate to sit by and watch a man get fried when he did nothing wrong. I hate that my hometown's "leadership" is the body responsible for convicting a man of a crime in the court of public opinion when he did nothing wrong. I often stood up for Joyce Wilson when she was being abused by Eddie Holguin. That doesn't mean I thinks she was a saint. It means that I do care about how our government operates and how it uses its power.
I like city manager form of government. However, if Mayor Leeser could be mayor forever I'd be all for strong mayor form of government. Mayor Leeser is a born manager and would get things done. The problem is that Leeser can't be mayor forever and you might end up with another Ray Caballero in power and then El Paso will crumble into a communist shit hole that nobody will want to visit or live.
Q: Can Tommy be reviewed by anybody other than council?
A: I'm assuming you're talking about his performance review. I think his contract lays out how he is to be reviewed. I'm not sure whether or not council is allowed to hire an outside adviser for the review or not. I'm assuming that Gonzalez's lawyers has an eye on this and likely why they are showing so much confidence during these hard times.
Q: What happens next?
A: A few things could happen here:
Okay... that's all I have time for right now. I wish the El Paso Times would issue an apology to Gonzalez so we can put all this behind us and go back to picking on the anti-ballpark crazies for a while.
So I was looking through the ethics complaint form the city produced for their committee. I found a big "uh oh" for Jim Tolbert's complaint against the city manager. Click HERE.
"Please refer to the instructions accompanying this form for assistance in filling out this form and filing it with the City Clerk’s Office. A complaint may be filed against a City officer for the officer’s acts or omissions, as regulated in Section 2.92.050 of the Ethics Ordinance. A “City officer” is a member of the City Council and the members of most of the boards and commissions of the City. This form cannot be used to file a complaint about a City employee—please refer to the instructions."
What you should be paying attention to is this line:
"This form cannot be used to file a complaint about a City employee—please refer to the instructions."
Looks like Jim Tolbert's ethics complaint only applies to a guy who is an elected official. The city attorney should have not recognized the complaint against the city manager seeing as he is a city employee...
Not only does Tolbert's complaint not weigh against the city manager, but the hiring of a special investigator is now a misappropriation of public funds. Can council members now be responsible for hiring an investigator to investigate someone they had no legal authority to investigate?
I wonder if the El Paso Times will report their own error here?
Reading is FUNdamental.
This rule is not a new one... not even in El Paso. I'm pretty sure there was a ban on them years ago. I don't know, maybe I'm wrong, but I sure thought it was a hot topic back in the days when the Shapleigh Campers ruled council.
The key here will be whether the ban is for use during the meeting at the dais, or the ban is for use while meetings are in session - doesn't matter where you are sitting.
I watch a lot of different local governments do their thing and I most of them have some kind of cell phone ban at the dais. This means you see them getting up and going behind the scenes constantly. They are leaving the dais to check the messages on their phone. After all, you can't check your phone at the dais, but you can do it in the back room where they meet in executive session. It's not as efficient as having your advisors feeding you info on the fly at the dais, but it still works.
Of course, there are other ways to get around the cell phone ban so that you can receive your marching orders in real time:
Some people were assuming this was aimed at Rep. Claudia Ordaz - I don't think that's true. I hear certain council members were aware of city staff coaching other council members during meetings on how to badger the city manager. It was inappropriate and likely unethical for certain city council members to be talking about city business during a city council meeting while the employee was at work and the whole thing was off the record and out of the public eye.
The big impact here will be that all of city council will have to do their homework prior to meetings. Texting was a way that a city council member could just show up on Tuesday not having read anything and get away with seeming like they did. Staff was always updating them via text so the council member wouldn't look like a fool if the public saw their email.
Bottom line - this changes nothing in the end. Council will find a way around this and continue its backbiting ways.
Sorry for the bad news.
You can read their call for Tommy Gonzalez head HERE.
The El Paso Times says Gonzalez should be fired because he didn't take the blame for everything in his answers to Ross Fischer's questionnaire. Which is idiotic given that Ross Fischer was conducting and investigation into the who, what, why and when these things happened.
For some reason the El Paso Times thinks Fischer was "hired by the city to look at Gonzalez’s performance on a variety of issues raised in El Paso Times stories last year."
Really? Since when was Fischer hired to do performance reviews of city employees? I thought he was hired - originally - to look into whether anything bad went on with the financial adviser RFQ that went nowhere. Eventually they put Ross Fischer to work investigating Jim Tolbert's ethics complaint. Nobody knows exactly why Fischer was repurposed for this task and what were the results of the original tasks he was assigned. You can assume he didn't find enough dirt with the first assignment, so he was sent to go at it another angle.
Because the newspaper has been told, or they honestly believe, Ross Fischer came to town to fire Gonzalez, they don't see how illogical their take on Gonzalez's answers is.
Fischer's investigation was aimed at figuring how the process went. It was not a situation where Gonzalez throws his hands up in the air and says "yep, it's all my fault." Gonzalez provided detailed answers to questions that included timelines, emails and other specifics. These details are to be used by Fischer to figure out exactly who did what and under whose direction. Had Gonzalez simply wrote "it's all my fault" for every question, the investigation would have been useless.
Gonzalez wasn't placing blame as much as he was describing the process of how each item got completed. When he indicates that staff put out the RFQ and didn't tell him the timeline was not correct, he was not placing blame, but stating a fact. It is idiotic for the El Paso Times to take his answers to direct questions about process and turn them into some kind of attempt by Gonzalez to pass blame.
Gonzalez stands behind his decisions in each case. That's what the El Paso Times fails to notice. Gonzalez acted within his power and within the laws of the land in each case. Why would he "blame" anyone for doing something he wanted them to do?
The El Paso Times needs to recognize the difference in these questions - What happened? Who's fault is it? They are very different questions.
I wonder how prospective businesses view the El Paso Times foray into personnel matters at the city? Who would move to a town where the newspaper has a mission to destroy someone because he helped his community? What if John Q. CEO moves to town and helps poor kids get into college? Will the El Paso Time indict him?
Again... and I can't state this more clearly - $20 million in taxpayer dollars gets thrown away for a political move that didn't work and the local media is obsessed with a guy who bent the rules to save the lives of children. Go figure...
The El Paso Times come clean with it's mission to get the city sued by Tommy Gonzalez for wrongful termination HERE.
I've told you that they've been in a tizzy since they couldn't use an editorial to stop the city manager's pay raise. I don't think they necessarily cared about the raise itself, but were interested in flexing their muscle. When they failed, they started seeing red and set out to regain their control over council's actions.
They have been very successful so far. Council has proven to be spineless and terrified that the paper will shake their finger at them. Instead of taking care of business, they've become a group of scaredy cats lashing out at each other out of fear. The mayor and city attorney have created an environment where they rule by fear and intimidation - I believe the El Paso Times is a part of this strategy. It seems that their access is rather good and their subsequent opinions line up with the mayor's views... a little too closely.
A source inside the El Paso Times (someone I thought hated me with a passion, by the way) told me that anyone pitching a story on the city that doesn't include bashing Tommy Gonzalez is shut down immediately. El Paso Times editor is willfully ignoring two major stories involving council members because they would contradict their talking points on Gonzalez. I've been told that the paper has returned to the days when reporter Marty Schladen would pen articles with a certain local attorney hovering over his shoulder telling him exactly what to write.
I think the biggest question here is why the El Paso Times is propping up its entire argument on Irene Ramirez and Fred Lopez's claim they told the city manager that the speed bumps were against the rules.
Remember - Ramirez was forced into retirement after being accused of losing the city $30 million in TxDOT matching funds. That problem started during city manager Joyce Wilson's tenure. I think incompetence has been proven here. That would make her a very unreliable witness in my book.
Fred Lopez didn't create the San Jacinto Plaza problem, but it appears he exasperated it when he was involved. Again - do you really want to believe a guy with that complete failure on his resume? And let's not forget that city staff has indicated that Lopez has worked to undercut Gonzalez with council at every turn. He's disgruntled - no exactly a reliable witness.
Of course, the El Paso Times automatically assumes they are telling the truth and the city manager is lying even though there are no emails, calendar invites, meeting notes or even a date recalled by Ramirez and Lopez to back up their claim. Everything else the El Paso Times uses as "evidence" is backed up by emails. However, all of a sudden there's nothing here other than one email from an underling to Ramirez and Lopez that essentially went nowhere.
I don't care what you think about the city manager - you're an idiot for basing your whole argument on the word of two people who have managed some of the biggest failures in El Paso's failure-ridden history.
The El Paso Times writes "sadly this is where El Paso now finds itself." You have to laugh when you read that. In no other city in the country has the newspaper attacked a bureaucrat for:
Oh, and they turned two disgraced bureaucrats into heroes for claiming they tried to stop the city manager from protecting the lives of children from reckless, speeding drivers.
You can not make this shit up.
Let's call a spade a spade here - The Mayor and city attorney have always wanted to do away with the city manager form of government. They also didn't want Gonzalez to be hired as city manager. The mayor and city attorney have finally tricked or intimidated each member of council into their way of thinking. What they have done is a masterpiece of political maneuvering that should receive it's own PBS special. I can't stress enough that the mayor and city attorney are damn good at what they do. Love'em or hate'em - you have to respect them for their abilities.
They will fire the city manager this week. The city manager will sue the city and win. One group gets what they want and another group gets a couple million bucks for their trouble. A third group - YOU - has to deal with a city government that is effectively paralyzed. Nothing is going to get done now. Hell, nothing has been done in months. Everybody at the city is terrified to do anything, so nothing gets done.
You can read their report on how the city manager answered the "special investigator's" questions HERE.
What have I told you guys a million times? If something is written in a confusing, or convoluted, manner, they're likely trying to get you to believe something that isn't true. Reading that article from the El Paso Times fits that bill. It's either written by someone who knows little of what they are talking about, or someone who is trying to gloss over a lot of inconvenient facts by creating a chaotic mess of words.
If you want a good idea of what the facts are - read the city manager's response to the questions HERE.
The First Southwest issue is laid out pretty well in the city manager response. It appears multiple members of council were unhappy with the $20+ million bust on the ballpark bonds. Trying to say Romero was the lone cowboy on this is complete bullshit. And I'll tell you what politics were at play here.
We knew then... although some of you are just figuring it out now... that the bonds sale was delayed in order to try and give some cover to mayoral candidate, Steve Ortega. Ortega did not order this and really had nothing to do with the decision. I know this for a fact. However, others were involved and it was quite obvious who it was. I will protect their identity here, because you're going to fry them in the comments section below... no need for me to pile on.
Below you'll find a list of city representatives who were unhappy with the financial advisor and approached the city manager about them. I will give you their motives to the right of their names.
-Representative Lily - Was confused as to why the sale was delayed and blamed the financial advisor. Had no knowledge of why it was really delayed.
-Representative Romero - His old buddy in the advisory business told him they got screwed by First Southwest and they ought to look at changing things up.
-Representative Acosta - Concerned the "bad advice" or timing of the bond sale was making her look bad for being pro-ballpark. She had mayoral aspirations, as you know.
-Representative Robinson - Anti-ballpark crowd was priming him like they primed Limon on why there was a delay. They hoped to use him to have political foes burned at the stake.
-Representative Noe - Legitimate confusion as to why they didn't get advised to sell the bonds earlier.
-Representative Holguin - He's Eddie Holguin... what more do you need to know? Also, anti-ballpark crowd had him doing what Limon and Robinson were doing.
-Representative Limon - Is on anti-ballpark team and wanted the delay to be exposed in the media to embarrass political foes.
-Representative Niland - Like Acosta, she needed answers because she was "all-in" on the ballpark and this was embarrassing. As for being in on the deal to protect Ortega - first, she was hospitalized during this time, so there's that. There's also the fact she didn't endorse in the race and I know that because I talked to her directly about endorsements at the time. This did not make Team Shapleigh happy and they would not have included her in any of their reindeer games at that point.
As the city manager points out - in budget meetings that year there were 147 requests made of him - the financial advisor changes was #45 and brought by Romero with zero pushback from anyone on council, the mayor or the city attorney. At that point he let the staff that does that kind of thing - do their thing. They put out the RFQ it was posted publicly for response as it supposed to be. Technically speaking - ALL OF US SHOULD HAVE BEEN AWARE OF IT. After all, it was posted for all the world to see.
After the RFQ process had been initiated and almost ready to go to council for new award, the city attorney casually informs the city manager of some very vital information pertaining to the exact reasons for the $20+ million bust on the ballpark bonds. Knowing this - for the first time since everybody on council told him to put the contract out for bid - he calls the whole thing off.
So, if you're trying to make a case that the city manager was trying to hand a friend the contract, you'd have to admit he did a really bad job for his friend. A. that friend got no contract. B. that friend ended up in the news which hurts his business. C. It's unclear what quid pro quo there was for the city manager - if there was one, it must have been shitty because the city manager stopped the whole thing from happening and invited First Southwest to defend itself with council members.
The good guy in this whole process was the city manager. As for Romero? Doesn't matter, I guess. He's gone and that's what you wanted in the first place.
You have to wonder why the city attorney waited so long to let the city manager know the truth??? This becomes a pattern.
District 2 Resurfacing
The smoking gun here was something all of you could see:
"Additionally, at the January 25, 2016 City Council meeting, Representative Carl Robinson asked the City Attorney if she could share the policy regarding changes to the Street Infrastructure Plan needing to come to Council for approval, City Attorney Sylvia Firth stated there was not a policy in place."
When they made the list of streets that needed resurfacing (and other stuff), no one on council was completely satisfied with it. So what did the city manager do? Got with each of them and toured their districts and then had engineering do the same. If priorities needed to be shifted, they'd all be in agreement after the tours of each district.
As quoted above - there was no formal policy to amend priorities on the list. As the case had always been - city staff was able to decide what got paved and what didn't. This is not a new thing. We're not talking major street reconstruction here - just resurfacing. City staff has always had the ability to shift things around without going to council. In years past every single member of council has influenced city staff to shuffle the order or pave a street that wasn't on the list. Why no fuss about that?
And let's be clear here - there are zero emails from Romero to the city manager telling him what streets to pave. All of that negotiation went on between engineering and Romero. How can you blame the city manager for that?
What I don't get here is the quid pro quo for street resurfacing... I mean, the city manager somehow convinces his staff to pave all of Romero's streets (which isn't true because Romero told engineering directly) and then the city manager gets to have his taxes done by Romero's tax business at full price. Sounds like a great deal.
I guess you could say that the city manager's raise was the quid pr quo... although that raise was negotiated when he was hired. They said they'd bump him to $300K after the first year because that's what their consultant had told them to do. Kind of weird that the city manager would pave Romero's streets for a raise he was already going to get, right?
We got a little "he said, she said" situation going on here. However, once you get to know who "he" and who "she" are - you might rethink your indictment of the city manager for keeping children safe.
First, let's just talk about who asked for what and why. At a community meeting at Cathedral High School - actually it was with the Cathedral Alumni Association - I'll refrain from bashing them... They pointed out that speeds and traffic on Stanton were increasing. Getting across the street was impossible and you couldn't expect kids to go all the way down to the crosswalk. Romero happened to be at the meeting... big deal. The concerned fathers of entitled children made the request.
The city manager called in the engineering staff and told them to make it happen. They said "cool." And it was all done.
Or... if you believe the El Paso Times and the former city engineer and a current extremely disgruntled employee - they tried to stop the city manager from this atrocious, felonious effort to save children's lives, but he wouldn't listen!
BULLSHIT. And here's why.
Irene Ramirez was city engineer until she wasn't. You might remember that she was the one blamed for the paperwork shenanigans that lost the city nearly $30 million in matching funds from TxDOT. That's the person the El Paso Times is touting as their expert witness. Here you have a person who has proven she can't keep the paperwork straight - or the story...
So where's the email to the city manager where Ramirez attached her underling's memo on why the speed bumps were bad for that location? Don't tell me that it wouldn't be common practice for an engineer to put their advice in writing because I'm extremely familiar with engineers and their habits. NOTHING in an engineers world is EVER handled with a conversation and a hand shake. EVERYTHING has to be put into WRITING. If a client asks my father what color asphalt is - he'll send them a signed letter explaining that it's black. And he's not the odd guy in the engineering world - they all know that if it wasn't written and signed, it didn't happen.
If the city manager is asking you to do something in violation of the rules, you don't just hit'em up at the water fountain and leave it at that. You cover your ass with an email.
The other finger pointer here is Fred Lopez (of San Jacinto Plaza fame). O'l Freddie no likey Tommy the city manager. It's no secret around city hall that Lopez was none-to-pleased about being brought to task on some issues and he has made it his full-time hobby to undercut the city manager with council members. Little birdies on council member's staff say that Lopez is likely feeding their bosses dirt on the city manager during meetings via text message or other method. Of course - that's completely not true and no staff member would ever ever ever go around the city manager and straight to council to give his boss hell. I don't believe it could happen!
It's not the city manager's job to memorize the local rule books that were cooked up by God knows who and God knows how long ago. His staff are the ones that are supposed to let him know what the options to solve the problem are. It's clear in this case that his staff did not tell him there was a problem.
So what's the quid pro quo here? Again, I have to ask if having the speed humps installed was really worth the reward of having to pay Romero full price to do your taxes? If so - that's the oddest deal I've ever heard of in my life.
I should mention, however, the person who nobody is looking at here - Rep. Cortney Niland. Her office also requested something be done for the safety of those entitled children. AND THEN!!!! She read a very long, and very positive, statement into the record supporting his raise... that he was guaranteed before any speed humps were installed. Nonetheless - the quid pro quo for the speed bumps was Niland's support of his raise. Case closed!
Just kidding... Niland didn't support his raise because of the speed hump. The city manager saw a situation where kids were in danger and acted. I hear that there was a suggestion of putting in two four-way stops on either end of the school to slow traffic, but that plan had some concerns. I say be lucky you don't have stop signs to contend with.
One final thought about quid pro quo and city council members directing the city manager to do things for them as a favor...
Do you remember that text from Rep. Claudia Ordaz asking the city manager to personally see that her opponent's signs be removed from city property? (FYI - they aren't supposed to be there.) Essentially Ordaz had something done in an expedited manner that directly benefitted her election chances. She could have called environmental services like I did when I ran and had them schedule a time to go look at your complaint. Instead, she went to the top and got an immediate response.
The quid pro quo? She voted to give him a $66,000 raise that even she admitted he didn't deserve! You know, when she was for it before she was against it.
Where's the El Paso Times on that one?
The El Paso Times is still patting itself on the back over this Rep. Romero case where he did what his constituents asked him to do and helped protect the lives of children. You can read their opinion piece HERE.
Why is nobody asking why the 60 question from Ross Fischer have come so late in the process? This guy is going to get a day to do his "investigation" and then show his results to council. Something doesn't make sense here. What has he been doing the rest of the time?
How come nobody has mentioned that the Public Integrity Unit cleared both Rep. Romero and the city manager of wrong doing? What about the investigation done internally by city staff? No wrong doing. Now you have an outside "investigator" trying these guys again. When does it end?
In politics you have to know the line between "looks bad" and "is bad." Everything done here looks bad, but no laws were broken. The investigative force with the ability to prosecute someone for corruption - Public Integrity Unit - already reviewed the case and said nothing was there. At what point do we give the real detectives the benefit of the doubt?
In other news - Larry Romero ain't answering shit. Your tax dollars were wasted on a publicity stunt/PR consultant for the city attorney and mayor. The only person who gained ground here was the city manager. He's got an awfully good wrongful termination and defamation suit the city will have to pay. So add another zero or two to what Mr. Fischer is getting paid.
This is the equivalent of you punching a brick wall and breaking your hand to prove how tough you are - nobody thinks you're tough and your hand is now useless.
And when exactly is the El Paso Times going to realize that they inspired the same conduct they are complaining about? They say a city employee acted without the consent of council and that the selection process for a new vendor was not needed and unfair. What happens next is the funny part - The city attorney provides a vendor that is not needed without going through the proper selection process. Oh boy... Am I the only one who thinks this is hilarious?
You do have to blame council for the power the mayor and city attorney have. They've never stepped in and asserted their authority. They just bicker back and forth in hopes of somehow polishing their tarnished images.
Vanity, as you're about to find out, is very expensive.
KVIA has a version of the story HERE.
The El Paso Times has it HERE.
I'm really confused at the moment... If the border highway is closed during the visit; why can't people walk across the road and hang on the fence in an effort to see/hear the Pope? There may be a very good reason, but if the road is closed... well that's the thing I'd be worried about - people crossing a highway.... but the road is closed...
Whatever - it doesn't really matter because it's all very dumb. The fuss being made by the city where the Pope IS NOT VISITING is embarrassing and makes El Paso look terrible in the eyes of the rest of the world.
Here's what you need to gather from the argument over security here.
1. It appears the mayor's office took the point position with federal law enforcement on this matter back in December. The mayor's office also seems to have been working directly with local police and fire officials on the event
2. If point #1 is true that means the city manager was not involved in the management of the police and fire.
3. If point #1 and #2 are true that means protocol for management of city resources was broken. Mayor and council direct city manager on how they want things to go and a the city manager manages respective city departments in order to achieve that goal. In this case it's obvious the city manager was cut out of the process.
In all the hoopla over former Representative Romero's paving requests we learned that elected officials aren't supposed to go to city staff and direct them to do things. The popular opinion is that all directives must come from a vote of council and then the city manager will go take care of it.
So how was it that the mayor's office was able to go around the city manager and direct city staff to do something?
It will be interesting to see if Ordaz and her group point this out. They are behind the war on Rep. Romero and the city manager for the exact same behavior. If they were being fair, they'd be looking to add the mayor's office to that exclusive group getting their ire. However, they are likely going to be a little timid here given the city attorney's whooping applied to Rep. Ordaz for past discretions with the whole text thing.
In defense of Rep. Peter Svarzbein.... sure it would have been nice if council had had a heads up way back in December so they could have some input. He has a point about council's role in these types of situations.
In defense of the mayor... he had to do this unilaterally because council is a complete shit show. Mayor Leeser is wise to the fact that the current council has a penchant for turning every issue into a self-promoting political fight and that one of two things would happen:
Remember, at this time the drama with the city manager was in full swing. The mayor goes around the city manager here because he's not sure he'll be working for the city in next month or so.
Was what they mayor did right? Yes and no.
No because there are rules.
Yes because things needed to get done and chaos needed to be limited - so he chose to manage the situation himself.
Svarzbein makes good points, but he should also realize that his colleagues (not him to any degree, shockingly) have created an environment where the official process must be avoided in an effort to keep their egos from ruining the city.
I think everyone misinterpreted what I was trying to say about Jim Tolbert. Of course, since I'm the guy typing, it's my fault.
The point I was trying to make is that there where people who wanted Rep. Romero out. They found a kindred spirit in Jim Tolbert. Jim Tolbert did the work that led to Romero leaving. Tolbert was the person who had did all the work. When others were crying and pointing fingers in the media, Tolbert was going through the process the way it should be done.
What does Tolbert get for his hard work and making other's dreams come true? They're going to run their own candidate against him.
My finger wagging is at the Ordazians, not Tolbert. Tolbert was doing what he thought was right and this other group benefitted... or at least they will benefit by getting a candidate they control into the District 2 seat.
Jim Tolbert isn't a bad guy at all here. He's just doing what he think is right for his district. I hope you can see that I'm not blaming or shaming him here.
I'll never agree that paving streets for constituents is a bad thing, but that's not my battle to fight. Those people in District 2 who think that problem is bad should be wary of a candidate who is going to be in debt to a political faction that is based outside the district. Jim Tolbert will not be owned by anyone other than the constituents in his district. Especially now that he's seen how the Ordazians thank him for his hard work.
Vote for Jim Tolbert - he's not on a "team."
Rep. Romero quit. He had nothing to gain by staying. I understand his business is doing well and he was told to focus on things he could control... council is not one of them.
Romero leaving without answering the questions from Mr. Fischer leaves city manager Tommy Gonzalez in a pretty good place. It's now a situation where nobody can really analyze both sides of the story. You have one story and that's it. If you want to say that Romero was doing favors for Gonzalez... well... this was probably the best one.
The initial word is that they could put Romero's seat on the ballot for May. The initial thought - at least in my mind - was that Jim Tolbert would be the top choice to fill the seat. After all, Tolbert has done all the work here to get Romero out. Tolbert did it partly because he doesn't like Romero and partly because the Ordaz group put him up to it. The Ordazians made Tolbert feel like his work would be rewarded by their support for him running in that seat when Romero's term was up or he left.
That is not the case now.
Tolbert is not their candidate. Mike Apodaca ran last time and eventually threw in behind Tolbert. There's no doubt that the Ordazians are close with Apodaca. I hear he's the guy the Ordazians want to run.
There are also others names being thrown out by the Ordazians for who they may support. However, none of those names are "Jim Tolbert."
There's no doubt that the Ordazians were looking to expand their influence and saw Romero as the easiest seat to grab. They used Tolbert's anger and willingness to do the work to grab that spot. They're going to screw Tolbert over in order to put in a guy they can control. It's a shitty thing to do to Tolbert, but that's politics.
The election for District 2 (Romero's former seat) is going to be about the city manager if Gonzalez can last that long. Rep. Peter Svarzbein has long been labeled the swing vote on Gonzalez's employment status. With Romero gone - it doesn't matter - the Nays have it. They just need to get it to a vote before District 2 has a butt in that seat again.
Because the big money business guys are going to try and win the seat and save the city manager. Most business folks in town see what's going for what it is - a power play. It makes El Paso look bad and they'd like to keep an efficient manager in place so they can attract employers to the city. If you have a hole at city manager and the future is uncertain - employers will pass on El Paso. It's just a fact.
Back in 2011 I posted the information below. You have a single member of council and a city manager going out for a new bid while a contract existed and had time on it. No investigation - not even a question. Tell me how this is different than what happened with the financial advisory situation you have now?
Justice... never consistent in El Paso.
After seeing Representative Byrd's ardent denial that anything had been done wrong in the stripping of a contract from a local vendor with 20 months left on the deal and giving it to an out town firm, I decided to follow up leads and do some homework. What I have found is sad, shocking and possibly afoul of the law. At a minimum Representative Byrd is giving bad information on the subject and it's unclear who fed it to her.
The contract at issue here is the one dealing with collecting money from people who receive ambulance rides. As you will see, the money involved with this service is a significant sum.
Fire Chief Otto Drozd apparently wasn't happy with the vendor currently under contract to collect the Ambulance fees. That vendor is the locally owned and operated Currey Adkins. I sat down with them yesterday and they shared their side of the story, which made it easier for me to tell you the whole story.
The new bidding process was done through a hybrid Request For Proposal (RFB from here on out) and lump sum bid. Interested parties were to provide numbers as to how much of the money they intended to collect and what percentage they would take of the money collected. The RFP part of the solicitation focused on subjective factors like financial stability and technological capabilities.
Here's how the bidding went down - the pure numbers. All of these numbers can be found HERE in the "backup" offered to council by city staff.
The lump sum bid was broken down into two parts that required interested parties to submit actual numbers in reference to "Commission" and "Guaranteed Collection."
Commission percentage = How much the company takes from each dollar they recover for the city.
Guaranteed Collection percentage = How much they think they can recover. Can be read as how hard working or efficient each company plans on being.
Advanced Data Processing Inc.
Commission % = 10.90%
Guaranteed Collection % (Five Year Average) = 27.33%
Wittman Enterprise LLC
Commission % = 13.50%
Guaranteed Collection % (Five Year Average) = 60%
Let's do the math here assuming that the city is owed $100 in ambulance fees. (Note that representatives of Currey Adkins would not share with me any information about how much they collect for the city. They told me that I would have to go through the open records process to get the numbers and that they are not at liberty to share any information of that nature relating to their client - the City of El Paso. However, an ankle biter friend of mine sent me a number a few months back during the budget review period and they said the number is around $20 million a year. I have not confirmed that as of yet.)
Advanced Data Processing Inc. says it would collect 27.33 percent of what is owed. Out of the $100 owed to the city they would collect $27.33. After they take their 10.90 percent of what they collected ($27.33) that leaves the city with $24.36.
Wittman Enterprise LLC says it would collect 60 percent of what is owed. Out of the $100 owed to the city they would collect $60. After they take their 13.50 percent of what they collected ($60) that leaves the city with $51.90.
The company returning the most revenue to the city (by a factor of two) would be Wittman Enterprise LLC. Basically Advanced Data Processing has indicated that they'd work half as hard for roughly three quarters of the cost.
Now let's look at what deal the city had with their current vendor Currey Adkins. Remember, Rep. Byrd said this in the comments section of this blog:
"Now instead of paying an average of 20% of fees collected, we will be paying 10.9%. And the new bidder estimates that they will be able to bring in substantially more revenue."
So what is Currey Adkins' deal? Are they charging the city 20 percent on fees collected and bringing in less than 27.33 percent of the revenue?
Currey Adkins showed me their contract. The very same contract you can get from city through an open records request. The same contract Rep. Byrd can see anytime she'd like.
Currey Adkins' contract says that they must currently collect 55 percent of the ambulance fees and can take 14.5 percent of everything collected. Uh oh. Where does Rep. Byrd get te 20 percent number and how does she not know that Currey Adkins must collect twice the amount Advanced Data Processing Inc. collect? Also in Currey Adkins' contract is a clause that says they must pay the difference to the city if they fail to collect the 55 percent required in their contract. It should be noted that Currey Adkins' has dropped their percentage take on the collections from 16 percent to 14.5 percent. So the accusation that they would not come down on their price is a lie - it happened.
Let's apply the same math to Currey Adkins' current deal that we applied to the bidders of the new RFP.
Currey Adkins says it would collect 55 percent of what is owed. Out of the $100 owed to the city they would collect $55. After they take their 14.50 percent of what they collected ($55) that leaves the city with $47.03.
If you're ranking the best deal it goes like this:
1. Wittman = $51.90
2. Currey Adkins = $47.03
3. Advanced Data Processing Inc. = $24.36
As you can see, Advanced Data Processing Inc. is not the best deal either in the new bid or considering the current company that has the contract. To claim that Advanced Data Processing Inc. is a better deal, is flat out wrong.
This really comes down to whether the Chief was instructed to reduce costs or generate revenue. I would assume that recovering badly needed revenue is a top priority. By picking Advanced Data Processing Inc. they chose to collect less money at a cheaper price. In other words - they're not doing much, but they're not doing much for less. Another solution to cutting costs would be to not hire anyone to collect the debts. Granted you would retrieve zero revenue, but it would be free.
I can't stress enough that the city picked the vendor that is only willing to collect a little over a quarter of what is rightfully owed to the city. It's a huge step back in revenue for the city. That small percentage (27.33) represents those users of the ambulance service who have insurance and are very easy to collect from. The remaining 70 percent of the population using the ambulance service will not be required to pay and will not be solicited to pay if I read their bid correctly. How's that a better deal than what we have now?
The other part of the bid is the subjective categories that each company was graded on. I will go through them here and present some of my concerns.
Proposed Technical Solutions (30 points max) - This means nothing if the firm that wins doesn't intend on collecting a majority of the debts owed.
References (15 points max) - This means nothing if the firm that wins doesn't intend on collecting a majority of the debts owed.
Capability/Qualifications (15 points max) - This means nothing if the firm that wins doesn't intend on collecting a majority of the debts owed.
Financial Strength and Stability (5 points max) - This means nothing if the firm that wins doesn't intend on collecting a majority of the debts owed.
I hate to be redundant, but the real measure of each company is what they propose to collect. Remember, they have to pay the difference of what they don't collect in relation to their project. So what does it matter if they use stone tablets and horse drawn chariots, or NASA's best engineers? The city gets their share either way.
The subjective part of the bid in this case was used to increase Advanced Data Processing Inc.'s scores so that they could get the contract. You can see this by clicking the link above that goes to the "backup."
So why was so much effort put into scoring Advanced Data Processing Inc.'s RFP so high? We'll get to that in a moment. First let's examine where the idea to switch vendors came from. Remember, Representative Byrd said on this blog:
"When Chief Drozd was applying for the position of chief, he reviewed the budget in preparation for the interview. One of the things that stood out for him was the charges for medical billing which were at least twice what the industry standard was. He also felt like the contract was not bringing in enough revenue. When he was hired he started working on the issue, talking with the current vendor about improving their service. He also started reviewing what was happening in the industry to see if we could get a better deal. The Fire Departmennt talked to vendors and other cities to see how they operated medical billing, how much revenue was coming in and how much was charged for the service. They discovered that indeed local taxpayers were paying more than twice the industry standard. One of the reasons that Chief Drozd was hired is that he identified many significant ways that we could provide better service at lower costs. Medical billing was one of those areas."
We know that at least one part of this statement is untrue - Currey Adkins was not charging twice the industry standard. So when did the chief know he was going to make a change and how did he really come to that decision?
Currey Adkins provided me with an email (and many others I will discuss shortly) they received after submitting an open records request. You can read the email by clicking - Download DOC122110.
It appears that shortly after Cheif Drozd took employment with the City of El Paso, a vendor he had a prior relationship with, and seems to have discussed El Paso's medical billing future with, contacted him. The person that contacted him just happens to work for the company that was chosen to service the EMS billing contract currently held by Currey Adkins.
While nothing illegal was done in the email, it does raise a question about the veracity of claims that the Chief spotted, all by himself, a need to change vendors. It also brings into question why the chief and the purchasing department would recommend hiring a firm that pledges to reduce revenue being collected from EMS billing. If the chief was truly looking for a better deal, wouldn't he have gone with Wittman Enterprises LLC.? His claims and his actions to rectify those claims do not match.
When I sat down with the folks at Currey Adkins they showed me a pile of emails that showed continued contact with Chief Drozd and employees of the city's purchasing department. The emails show a consistent and obvious effort by individuals from Advanced Data Processing Inc. to "help" guide them in an effort to put together an RFP to re-bid the EMS billing service. In one email the Advance Data Processing Inc. rep offers examples of RFPs to city staff. This is simply appalling.
The fact that the winning bidder for this RFP, Advanced Data Processing Inc., offered up the very RFP they would be responding to is in the least improper and may be much worse than that if the proper authorities get a hold of all the information.
This brings us to why Currey Adkins didn't respond to the RFP/Bid. And for that matter, why only five out of 68 firms responded. Do note that out of 19 local El Paso firms that were asked to bid - zero offered a bid. So why?
Looking at the RFP that was put out by the city's purchasing department, it became clear that it was different than any previous RFP put out. So confusing and convoluted was the RFP that 234 questions were submitted by potential bidders seeking clarifications and definitions. I have a tremendous amount experience with all things RFP from the federal level to the local level. Never have I ever seen a local RFP/Bid receive that many questions. The norm is about 10 to 20. And that's on highly complicated designs for lengthy stretches of road encompassing utilities of all makes. Any questions in excess of that usually draw major addendums to the RFP/Bid.
Once I was showed the questions and then shown the corresponding requirements within the RFP, I realized that it appeared that it was written in a way to scare bidders off, not attract them. Undefined costs like the provision that the city be able to add their own materials to the mail going to those they seek payment from made the RFP a huge risk (among other things). When the question was asked of the city about what size brochure would be included in the mail and how often, they refused to give the answer. Currey Adkins indicated to me that 100,000 pieces of mail going out at Currey Adkins' cost is not uncommon each year. To add weight to the mail correspondence is to add postage - with 100,000 letters going out, that could mean your entire profit margin! And the oddities and lack of answers to clarify them only grew from there. Again, 234 questions were asked and nobody seemed to care.
Currey Adkins told me that the risk of bidding something like this was too great. The means for which a company could fail due to the requirements of the proposal were a major detterent. Proving this theory was the fact that 63 out of 68 invited bidders decided not to respond. Oddly, one bidder, Advanced Data Processing Inc. was so confident in their ability to perform the contract, they submitted two bids! I wonder why they were so comfortable with something 63 other firms weren't? Also, of the five bidders who did respond, three didn't provide a complete set of bid numbers. That leaves only two firms out of 68 that responded with full confidence.
As I read over the proposal more I realized that the only way to be successful in making a profit from this contract is to have some kind of knowledge that none of the quirks in the proposal would ever be required of you. It seemed to me that the better relationship you have with those overseeing the contract, the better chance you had at profiting. Of those firms bidding I could only point to one that was familiar with Chief Drozd - Advanced Data Processing Inc. Maybe they know how he runs things? They do know him well enough to golf with him it seems.
Every line leads back Advanced Data Processing Inc. It's undeniable.
So here's what we're left with...
The city terminated a contract with a firm that is currently out-performing the proposed firm they're being replaced by. The new firm only seeks to collect 27.33 percent of what the city is rightfully owed while the old firm is currently collecting 55 percent of what the city is rightfully owed. An unsuccessful bidder under the new contract has offered a better deal than both of the firms I've already mentioned (Wittman Enterprises LLC.).
The result of the city's action on this is 30 El Pasoans losing their jobs at Christmas time. And the process was never questioned. A city council representative presented a case for stripping Currey Adkins of their contract 20 months early, but her case has been refuted point by point here. So what's the net gain for the city? Nothing - they lose revenue and they put 30 people out of work. (Do note that I don't think Rep. Byrd is making up her claims - I'm sure she is only relating what she has been told be the staff.)
On top of all that, there's serious evidence that the winning bidder may have guided the RFP process they end up winning through a prior relationship with the contract manager. What are the chances of you winning an RFP when you help create it? Pretty damn good from what I see.
Oh yeah - I almost forgot. Mr. Currey has been asking the city for the contract that Advanced Data Processing Inc. is getting from the city and has been told they don't have it. Huh? They can't provide a contract under an open records request? You can get Currey Adkins' contract under an open records request, but this new one isn't available? Very weird and very wrong. What is being hidden here?
And after checking this out - city council approved this contract without even seeing it. None of them can say they saw the contract they instructed the City Manager to sign before they voted on it. That shouldn't happen. That puts them in a bad spot along with the taxpayers.
Here's what I need you to do - click on this link http://www.elpasotexas.gov/government.asp and tell your city rep and the mayor to read this post. They need to stop this contract award and get the facts straight here. You could save 30 El Pasoans' jobs before the holidays if you act now.
The El Paso Times congratulates themselves again in THIS article about the Romero/Gonzalez crime of the century (doing what constituents ask them to do).
What's your first clue that this outside consultant and his investigation has no real authority? The fact they released the questions without the answers. When's the last time you saw a district attorney submit his questions for a murder suspect to the public before the suspect had a chance to answer? Never. Because that would be dumb and cast doubt upon the entire investigation and the motives of the district attorney. It doesn't matter in this case because the "investigator" has no authority and was actually hired to run a public relations campaign.
These questions are "leading" to say the least. They bring to mind the "when did you stop beating your wife" theme we know so well in modern politics. By releasing them to the public in that form, they serve as a public relations maneuver to damage Rep. Romero and City Manager Tommy Gonzalez's reputation.
Whether you're a fan of the parties involved or not, you must think for a second about how this looks to someone from the outside. El Paso city government is willing to hire a public relations expert to diminish an employee's reputation if they feel you are not politically aligned with those in control at the moment. The same goes for a sitting member of council. Don't you think that's a little odd? Why not just fire the employee and censure the representative and save money?
The second questions comes form an attorney in El Paso- "Why does anyone have to answer Fischer's questions?"
As it has been put to me - "Fischer has as much authority as a blogger in this situation." That means - no authority at all. His role is not codified and if not carefully executed a violation of someone's civil rights could be claimed here. That is probably the most serious question we have here - is the city way overstepping it's own authority and taking a chance of getting in trouble themselves?
I won't go into the long conversations I've had with experts in Texas law, but it's pretty simple - the law defines what cities (counties actually) can do when it comes to policing and investigative bodies. Creating your own separate investigative and policing unit is a big big big no-no and has actually happened more than a few times in Texas.
Romero and Gonzalez do not have to answer Fischer's questions. Fischer has no legal authority to ask them. If one lawyer has told me this, fifty have - "who made Fischer an official with any power?" And Romero and Gonzalez's lawyers may have advised them not to answer the questions and that's why they ended up in the newspaper - to make them look bad.
The financial advising company surely doesn't have to answer Fischer's question. An RFQ went out and they submitted - there's nothing illegal at all about that.
If every RFP and RFQ that goes out has to be specifically voted on by council; why are they not investigating the literally hundreds of them that went out just in the last couple of years without direct council approval? I remember an ambulance billing contract that went up for RFP based on the request of a single member of council and a department head who hired his buddy from his hometown. No investigation at all... But I guess when you're on the right political team you're above the law???
Someone needs to take a second and really understand the process of RFQs and RFPs and just how the authority to "go out for" them is delegated.
And let's remember that this RFQ was put out for public consumption just like all the others. If council didn't know about it, it's because they fail to read what's on the city's website we they are all listed.
If Jim Tolbert gets his own personal investigator for his ethics complaint; will Barbara Carrasco get one too?
The El Paso Times article makes it very clear that Fischer is now directly working on Tolbert's ethics complaint for the ethics committee and by default - Tolbert. I was not aware that his duties would include "assisting" the ethics committee. I thought he was to do his own investigation into the matter and report back to council his findings. Now he's linked up with a new body of unelected government and it's unclear if he's working at their direction, or they are working at his direction. Who's the pilot and who's the plane?
An even better question is whether the ethics committee is allowed the investigative powers they are using now. You may remember how the county ethics commission was formed after their major corruption scandal. A state representative had to get the legislature to approve it's design and function. And once the ethics commission was in full swing, the chair decided he wanted them to have "investigative powers" and that went over legally like a lead balloon. There was no provision for them to have their own Sherlock Holmes to go track down lawlessness and corruption. They were only given powers to hear a complaint, rule on it and hand down what amounts to a good spanking. This goes for the city ethics commission as well.
If you're looking for fairness in the process here, you won't find it. If one ethics complaint gets a special investigator paid for by the city, then they all should get a special investigator paid for by the city.
It has been made clear that paving projects and other kinds of projects have been changed or moved up in other council member's districts. Is Fischer going to investigate those instances as well? Reps. Limon and Robinson had changes made to their list and projects completed at their request. Are they going to be investigated as well?
I don't buy the excuse that "Romero did it more than they did." If it's illegal to do five times, it's likely illegal to do just once as well (it's not illegal at all to request a different street in your district be repaved - in fact the system actually allows and encourages changes based on need - the list serves as a default guide, but is not set in stone).
Sitting members of council have, on many occasions, had relationships with the owners of companies they awarded city contracts to. Will Fischer investigating the relationships between every member of council and every recipient of a city contract in the past two years? What about zoning issues that council has ruled on? How many times did they know the owner of the property? There could be a lot of questions on council's "relationships" if you hold the same standard to them as they are with Romero and the financial advisory firm.
Many of you may not be fans of the people under the microscope now and are okay with the way this process is going. Can you take a step back and ask yourself how you'd feel if it was your favorite city rep and city manager facing this investigation? What if it was you? Would you agree with the fairness and legality of what's gone on here?
Always apply the test of fairness to yourself first and your enemies second. You'll see things clearly if you operate that way.
I'm going to link to the El Paso Times editorial because they actually quote Dr. Noe who has some good points HERE.
You may remember that some PR company put together a presentation about El Paso that featured a sombrero wearing bum-looking guy as the idea of what people think about El Paso. The image was said to be racist. Everybody was extremely offended and now collectively suffer from PTSD due to that presentation.
You would think that when the city council went to pick a spot for the city cultural latino hispanic julio iglesias appreciation pavilion, or whatever they're calling this week, they'd not pick a building shaped like a sombrero.
Although, if they were going to have a sombrero museum - the Abraham Chavez theater would be perfect.
A local nut job submits an ethics complaint over Rep. Claudia Ordaz's sharing of executive session information and you'd think a murder was being investigated here. The only dead thing here is common sense - long absent from all things city council.
First of all, a member of council can divulge whatever they want from executive session. This isn't the CIA. Well, for staff it is kind of like that. Staff can be fired for sharing executive session information.
I have pointed out many times when executive session items have leaked and ended up in the blogs or in the local press. Ordaz is hardly the first member of council to share executive session information. That doesn't make it right, but it's not a capital crime either.
What can happen when executive session information is leaked? It opens up the city for a lawsuit in some cases. It might also piss off whoever is the subject of the leak and cause them to react negatively (think economic development here). That's about it.
It's always a good idea to keep information shared behind closed doors to yourself. There's good reason why they aren't debating that topic in front of the public.
What can be done?
The mayor and council can decide that a person on council is a liability to them/taxpayers/etc and basically censure them - not allowing them to participate. At the moment council is way too fractured to put together a vote to censure anyone, so it's a moot point here.
The complaint against Ordaz will end up in the circular file and life will go on. Remember, just because someone does something you don't like, doesn't make it is automatically illegal or unethical.