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Update: 10:15 a.m., Feb. 2. This story has been updated to show that Ethics Commission member Casey Williams recused himself.
City Rep. Brian Kennedy did not violate the city’s ethics ordinance, the Ethics Review Commission determined late Wednesday.
The ethics commission, which convened for the first time in two years, met on Wednesday to review a complaint filed against Kennedy that stemmed from the first meeting of the year on Jan. 3 where Kennedy was sworn into office and a key vote on the controversial Downtown arena took place.
Acting on the advice of City Attorney Karla Nieman, Kennedy abstained from that day’s vote due to a possible conflict of interest because of his prior consulting and employment with the El Paso Sports Commission, which runs the El Paso County Coliseum. The City Council ultimately voted not to build the arena in the Duranguito neighborhood.
While the ethics commission closed this complaint, two advisory opinions requested by Kennedy remain pending. Kennedy is seeking an opinion from the ethics commission on whether he can participate and vote on future arena discussions.
“I don’t believe there was a conflict. I don’t believe there is a conflict,” Kennedy said.
The ethics complaint filed against Kennedy on Jan. 5 by Dora Oaxaca alleged his attendance on Jan. 3 in executive session during a discussion regarding the Downtown arena, and his prior consulting work, posed a conflict of interest in violation of the city’s ethics ordinance because the arena could be seen as a venue competing with the coliseum. Kennedy long served as CEO of the sports commission.
The ethics commission, consisting of nine non-elected officials, was established to hear complaints about alleged violations of the city’s ethics ordinance by elected officials or city staff and makes recommendations to the mayor and City Council.
The commission ruled after about three hours of testimony.
Oaxaca told the ethics commission that Kennedy’s presence in executive session on that day was a violation.
“(His) participation is he attended – he was there. He had body language and he had engagement with his body language,” Oaxaca said.
Oaxaca also implied that Kennedy spoke during the executive session, but did not provide evidence. Participating in deliberations after having abstained from voting on an item could be a violation.
Kennedy restated that he did not participate in discussions.
“I knew that in an ultimate act of safety and ultra caution I was not going to participate in deliberations – I was not going to vote,” he said.
During the testimony Oaxaca also alleged, in part, that Kennedy was not up front with the ethics commission on his sworn statements about the income he received from the sports commission based on the nonprofit’s 990 tax filing. Kennedy’s sworn statement said he did not get paid as an employee after September 2021.
The tax filing, for the fiscal year from October 2021 through September 2022, shows Kennedy received a base pay of about $219,000.
Omar Ropele, the current president of the sports commission, testified as a witness for Kennedy during the hearing and said the salary was for the calendar year 2021, not the fiscal year, and his employment ended in September 2021.
Kennedy was paid $55,000 for consulting work he did for the commission in 2022 based on a verbal agreement with Ropele.
The vote to clear Kennedy was 5-1 with commissioners Richarda Momsen, Elena Grasheim, Arnulfo Hernandez, Marco Covarrubias and Mark-Thomas Bray voting in favor of the city representative. Commissioner Mark Walker voted against. Two commissioners were absent and the ninth member recused himself.
Walker, whose term expires this month, made an initial motion that determined Kennedy had violated the ethics ordinance, but did not get support from the commissioners to move forward with a vote.
Commissioners Alexandria Serra and David Kern were absent. Commissioner Casey Williams, who was appointed as the chair of the commission during the meeting, recused himself after Kennedy raised concerns about a possible conflict of interest.
Williams’ brother is the chief of staff to city Rep. Henry Rivera. Rivera is married to Oaxaca. Williams initially resisted, but did so after Walker said his participation could give the impression of a conflict of interest.
It is unclear when the ethics commission will rule on the two advisory opinions pending. The commission appointed a subcommittee to review Kennedy’s request.
Kennedy requested the opinions to ensure he is able to participate during future agenda items related to the multipurpose performing arts and entertainment center. One seeks an answer on whether he can vote on any issue involving the MPC.
The other seeks an opinion regarding potential violations of his participation and voting on issues involving the ASM Global, doing business as Destination El Paso/El Paso Live. The El Paso Sports Commission and Destination El Paso/El Paso Live have often teamed up for various events including a bowling tournament and other sports events, according to Kennedy’s request for the advisory opinion.