Flower Mound Town Council Investigation Report

PRIVILEGED AND CONFIDENTIAL

INVESTIGATION REPORT

TOWN OF FLOWER MOUND

SUBJECT

ALLEGATIONS AGAINSTELECTED OFFICIALS

ROSS T. FOSTERFOSTER & EAST

9001 AIRPORT FREEWAY, SUITE 675NORTH RICHLAND HILLS, TEXAS 76180

INVESTIGATOR


TABLE OF CONTENTS

1.0. Introduction and Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2.0. Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

3.0. Allegations, Factual Basis, Analysis and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3.1. Tom Hayden-Mayor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

3.1.1. Disclosures to Pierson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Application of TOMA: No violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Application of the Town Charter: No violation. . . . . . . . . . . . . . . . . . . . . . 7

Application of the Ethics ordinance: No violation. . . . . . . . . . . . . . . . . . . 8

3.1.2. Holding multiple positions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Application of the Charter: No violation. . . . . . . . . . . . . . . . . . . . . . . . . 10

3.1.3. Instructing Staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Application of the Charter: No violation. . . . . . . . . . . . . . . . . . . . . . . . . . 11

Page 2

3.2. Brian Rountree-Council member Place 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3.3. Bryan Webb-Council member Place 2... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3.3.1. Disclosures to Pierson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Application of TOMA: No violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Application of the Town Charter: No violation. . . . . . . . . . . . . . . . . . . . 13

Application of the Ethics ordinance: No violation. . . . . . . . . . . . . . . . . . 14

3.4. Kevin Bryant-Council member Place 3.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3.4.1. Social Media Sites. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Application of TOMA: No violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3.5. Steve Dixon-Council member Place 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3.6. Itamar Gelbman-Council member Place 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3.6.1. Disclosures to Vaught. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Application of Ethics ordinance: Possible violation, prosecutionrecommended. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

3.6.2. Social Media Sites. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Page 3

Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Application of TOMA: No violation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

3.6.3. Misuse of position with respect to Flick property. . . . . . . . . . . . . . . . . . . . 23

Allegation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Factual Basis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Application of Ethics ordinance: No violation. . . . . . . . . . . . . . . . . . . . . 26

4.0. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Page 4


1.0. Introduction and Jurisdiction.

Section 3.12 of the Charter of the Town of Flower Mound empowers the Town Council to

conduct investigations of any department, agency, officer or employee of the Town. Pursuant to that

authority, on July 20, 2015, the Council directed the Town Manager to move forward with arranging

for a third-party investigation of the Town’s elected officials. The scope of the investigation was

limited to possible violations of any of the following: (1) the Town Charter; (2) the Texas Open

Meetings Act (“TOMA”); or (3) Article VIII of the Town’s Code of Ordinances (the “Ethics

ordinance”). The investigation was also limited to events occurring during the period beginning May

20, 2015, and ending July 29, 2015. The Town Manager contacted the Foster & East law firm and

an engagement letter was signed concerning the investigation. On September 8, 2015, the Council

approved the continuance of the third-party investigation initiated by the Town Manager, and it

ratified the actions taken by the Town Manager concerning the investigation.

2.0. Procedure.

The investigation was conducted in a stepped manner. The Council members were initially

interviewed in an attempt to narrow the scope of the investigation, identify relevant documents,

identify potential witnesses, and ascertain the allegations against the elected officials. Preliminary

legal research was then performed in order to establish the elements of the alleged violations.

Relevant documents were then requested, and the documents that were produced were reviewed.

Certain non-council witnesses were interviewed. The existing evidence at that time was considered.

Page 5

It was determined that additional information was needed and certain prior statements should be

clarified and given under oath. Certain Council members and witnesses were then examined under

oath. Additional documentary evidence relevant to the statements under oath was obtained.1

Additional legal research was performed. Finally this Investigation Report to the Town was drafted.

3.0. Allegations, Factual Basis, Analysis and Authorities.2

3.1. Tom Hayden-Mayor.

3.1.1. Disclosures to Pierson

Allegation: That the Mayor disclosed to Nels Pierson the Council had discussed in

executive session removing Pierson from the Town’s Planning and Zoning Commission (the

“P&Z”), which, it was alleged, constituted violations of TOMA, of the Town Charter (allegedly

through an incorporated violation of Robert’s Rules of Order), and of the Ethics ordinance.

Factual Basis: Mayor Hayden has testified he became aware of the possible removal

of Nels Pierson from the P&Z as a result of Council discussions in executive session. Prior to the

information becoming public, Mayor Hayden discussed with Nels Pierson his possible removal from

the P&Z and discussed the presentation Mr. Pierson would make at an upcoming Council meeting

concerning his removal. Mayor Hayden’s stated purpose for these communications with Mr. Pierson

During the investigation the Investigator was contacted by third parties concerning1

alleged violations within the scope of the investigation. No personal knowledge of any allegedviolation was claimed by any of the third parties. Any relevant documentary evidence submittedby the third parties was considered in the investigation.

Several allegations were the same or similar against multiple Council members. For2

clarity, the complete analysis of the allegations in the report is repeated for each affected Councilmember without reference to the analysis pertaining to other Council members.

Page 6

is he believed it was appropriate for Mr. Pierson to be made aware that he was being considered for

removal, so he could be prepared to defend himself.

Application of TOMA: No violation.

TOMA prohibits only disclosure of the actual “certified agenda” (i.e., the official written

minutes of the executive session) or of an actual recording of the executive session. It does not

generally prohibit subsequent disclosure or discussion of what occurred in executive session. Op.

Tex. Att'y Gen. No. JM-1071 (1989) (stating the prohibition against disclosure in TOMA does not

prohibit members of a governmental body or other persons in attendance at an executive session

from making public statements about the subject matter of that session). The disclosure to Mr.

Pierson by Mayor Hayden, therefore, was not a violation of TOMA.

Application of the Town Charter: No violation.

Section 3.10 of the Town Charter allows the Council to adopt rules of procedure. The

Council by ordinance has adopted Robert’s Rules of Order, Newly Revised (“Robert’s”), to govern

procedure. Code of Ordinances § 2-53. In Section 9 of Robert’s, “Particular Types of Business

Meetings, Executive Session,” it states, “A member of a society can be punished under disciplinary

procedure if he violates the secrecy of executive session. Anyone else permitted to be present is

honor-bound not to divulge anything that occurred.”

The allegation of a Charter violation is based on a legal misconception. Section 3.10 of the

Charter is nothing more than an enabling provision or a grant of power to the Council. It empowers

the Council to adopt rules of procedure, just as Section 3.07 of the Charter empowers the Council

to adopt other ordinances and resolutions concerning numerous matters. The Council’s exercise of

Page 7

the power granted to adopt rules, ordinances and resolutions does not mean that any violation of

these adopted rules, ordinances or resolutions also constitutes a violation of the Charter itself.

Otherwise, if a Council member violated any provision of the Flower Mound Code of Ordinances,

they would also be committing a Charter violation, a ridiculous result.

Additionally, section 3.10 of the Charter authorizes the Council to adopt only rules of

procedure. In fact, the ordinance provision adopting Robert’s specifies that the rules are adopted to

the extent they are “procedural” in nature. The above-referenced provision of Robert’s, however, is

substantive in nature, not procedural, in that it declares rights, duties, and punishments. See, e.g.,

Black's Law Dictionary (10th ed. 2014), “Substantive Law,” “Procedural Law.” Thus, the above-

referenced substantive provision of Robert’s has not been adopted by the Council. In other words,

the Council’s express adoption of only procedural rules cannot operate effectively to enact law that

defines substantive rights, duties, and punishments.

The disclosure by Mayor Hayden to Mr. Pierson, therefore, was not a violation of the Charter.

Application of the Ethics ordinance: No violation.

Section 2-415 of the Ethics ordinance lists fifteen different prohibited acts. Relevant to the

inquiry, part (3) prohibits a public official from directly or indirectly disclosing or using any

information gained solely by reason of his official position for his own personal gain or benefit or

for the private interest of others. Additionally, part (14) prohibits knowingly disclosing information

deemed confidential by law. There is no definition in the ordinance of the terms “benefit,” “private

interest,” or “deemed confidential by law.”

No evidence of any financial dealings, actual or contemplated, between Mayor Hayden and

Mr. Pierson was found. Nor is there any evidence that Mr. Pierson was engaged in activity from

Page 8

which he stood to profit as a result of his volunteer, unpaid position as a P&Z member. To the extent

the prohibition of part (3) is based on preventing profit or financial gain, it is not applicable. It was

suggested that the term “benefit” in part (3) is broad enough to prohibit disclosing information that

would further Mayor Hayden’s political agenda for the Town. It was further suggested that the term

“private interest” in part (3) is broad enough to include disclosing information that would have

allowed Mr. Pierson to exercise his statutory right to have his removal from the P&Z deliberated in

public. Such broad constructions are not supported either by the policy and purpose enunciated in

the Ethics ordinance or by other ethics-related laws that use the same or similar terms.

Section 2-414 of the Ethics ordinance declares the policy and purpose of the ordinance by

identifying six different goals for the operation of a democratic government. None of those goals

were abridged by the disclosure of Mayor Hayden to Mr. Pierson. Other ethics provisions are

normally construed to prevent conflicts of interest arising from potential financial gain or divided

duties of loyalty. See Tex. Const. art. III, § 22, comment; Op. Tex. Att'y Gen. No. GA-0087 (2003);

Op. Tex. Att'y Gen. No. LO-88-44 (1988). No opportunity for financial gain or benefit to Mayor

Hayden was present. To the extent that Mayor Hayden may have been pursuing his political agenda

for the Town, he was doing what all public officeholders are elected to do. No divided loyalty

between the Town and another was present. Further, since the only possible result of Mayor

Hayden’s disclosure was to allow Mr. Pierson to exercise his statutory rights, which he otherwise

would have lost, the action cannot be interpreted as detrimental or adverse to any interest of the

Town. Mayor Hayden’s disclosure did not constitute a violation of 2-415(3).

As explained above, the information concerning the possible removal of Mr. Pierson was not

confidential under TOMA, nor is it is among the information deemed confidential by the Public

Page 9

Information Act. It has been suggested that the information was confidential under the attorney-3

client privilege. The attorney-client privilege, however, applies only to information exchanged in

seeking legal advice. Tex. R. Evid. 503. The discussion in executive session that one or more of the

Council members was contemplating making a motion to remove Mr. Pierson at the next council

meeting did not involve the seeking or rendering of legal advice. The information concerning the

possible removal of Mr. Pierson was not deemed confidential by law. Mayor Hayden’s disclosure

did not constitute a violation of 2-415(14).

3.1.2. Holding multiple positions.

Allegation: That the Mayor held another public office in violation of the Charter.

Factual Basis: Mayor Hayden is a member of the board of directors of Windmill

Farms HOA. Mayor Hayden serves on the HOA board as a result of his employment. Windmill

Farms is a residential subdivision development, located in Forney, Texas. Mayor Hayden’s employer

owns numerous lots in the subdivision.

Application of the Charter: No violation.

Section 3.02.1 of the Charter prohibits members of the council from holding other public

offices during their tenure (other than Notary Public or as a member of the military reserve).

Windmill Farms HOA is a private company. Holding a position of director, unpaid, in a private

company is not equivalent to holding a public office. It has been suggested that the situation is

affected by the fact that Centurion American may be the developer of Windmill Farms and may also

Tex. Gov’t Code §§ 552.101 to 552.156.3

Page 10

be the developer of River Walk development in Flower Mound. Whether Centurion American is the

developer of both does not alter the analysis.4

Mayor Hayden’s position as a director of Windmill Farms HOA does not violate the Charter.

3.1.3. Instructing Staff

Allegation: That the Mayor instructed city staff in violation of the Charter.

Factual Basis: The Town publishes a newsletter entitled, “Message from the Mayor.”

The Town’s communications and marketing manager’s duties include ghost writing the newsletter

and seeing to its publication. In order to facilitate the publication of the newsletter, the

communications and marketing manager has been directed by the Town Manager to deal directly

with the Mayor in determining the content of the newsletter, and the Mayor has been asked by the

Town Manager to deal directly with the communications and marketing manager. The Investigator

has been provided an email from the Mayor directed to the communication and marketing manager,

advising her that she was going to be required to write the content of a column for the newsletter

concerning a particular subject.5

Application of the Charter: No violation.

Section 3.09 of the Charter requires that Council members deal solely through the Town

Mayor Hayden’s position as a board member of Windmill Farms HOA also presents no4

conflict of interest with his position as mayor. Mayor Hayden owes a duty of loyalty both to theTown and to Windmill Farms HOA. These duties of loyalty do not conflict. There is nointeraction between the Town and the HOA. Because Centurion American may also be a memberof the HOA does not mean that Mayor Hayden owes a duty of loyalty to Centurion Americanwith regard to its dealings in the Town.

The Investigator has also been provided other emails from Mayor Hayden to the Town5

staff with the assertion that they constitute direction to the staff. Each of those emails, however,constitutes a request for information only. No further analysis is necessary.

Page 11

Manager with regard to the administrative and executive duties under the Town Manager. The

Charter provision does not prohibit the Town Manager from delegating to other employees duties

which require continued interaction with Council members in order to complete the task. The Town

Manager has delegated to the communications and marketing manager the task of dealing with the

Mayor in publishing the newsletter. The communication between the Mayor and the communications

and marketing manager is within the scope of the duties delegated by the Town Manager. Mayor

Hayden has not violated the Charter in advising the communications and marketing manager she was

going to have to write a column for the newsletter.

3.2. Brian Rountree-Council member Place 1.

During the course of the investigation Council member Rountree tendered his resignation

from the Council, and his resignation was accepted. Upon his resignation becoming effective the

Council no longer had the jurisdiction or power to investigate Council member Rountree under the

Charter. The investigation of Council member Rountree was concluded without being completed.

3.3. Bryan Webb-Council member Place 2.

3.3.1. Disclosures to Pierson

Allegation: That Council member Webb disclosed to Nels Pierson the Council had

discussed in executive session removing Pierson from the “P&Z”, which, it was alleged, constituted

violations of TOMA, of the Town Charter (allegedly through an incorporated violation of Robert’s

Rules of Order), and of the Ethics ordinance.

Factual Basis: Council member Webb has testified he became aware of the possible

removal of Nels Pierson from the P&Z as a result of discussions in executive session in a Council

meeting. Prior to the information becoming public Council member Webb discussed with Nels

Page 12

Pierson his possible removal from the P&Z and advised him that he had a right to request the

deliberation on his removal be conducted in public. Council member Webb’s stated purpose for

these communications with Mr. Pierson is he believed it was appropriate for Mr. Pierson to be aware

he was being considered for removal and he had a right to request the deliberation on his removal

be conducted in public.


TOMA prohibits only disclosure of the actual “certified agenda” (i.e., the official written

minutes of the executive session) or of an actual recording of the executive session. It does not

generally prohibit subsequent disclosure or discussion of what occurred in executive session. Op.

Tex. Att'y Gen. No. JM-1071 (1989) (stating the prohibition against disclosure in TOMA does not

prohibit members of a governmental body or other persons in attendance at an executive session

from making public statements about the subject matter of that session). The disclosure to Mr.

Pierson by Council member Webb, therefore, was not a violation of TOMA.

Application of the Town Charter: No violation.

Section 3.10 of the Town Charter allows the Council to adopt rules of procedure. The

Council by ordinance has adopted Robert’s Rules of Order, Newly Revised (“Robert’s”), to govern

procedure. Code of Ordinances § 2-53. In Section 9 of Robert’s, “Particular Types of Business

Meetings, Executive Session,” it states, “A member of a society can be punished under disciplinary

procedure if he violates the secrecy of executive session. Anyone else permitted to be present is

honor-bound not to divulge anything that occurred.”

The allegation of a Charter violation is based on a legal misconception. Section 3.10 of the

Charter is nothing more than an enabling provision or a grant of power to the Council. It empowers

Page 13

the Council to adopt rules of procedure, just as Section 3.07 of the Charter empowers the Council

to adopt other ordinances and resolutions concerning numerous matters. The Council’s exercise of

the power granted to adopt rules, ordinances and resolutions does not mean that any violation of

these adopted rules, ordinances or resolutions also constitutes a violation of the Charter itself.

Otherwise, if a Council member violated any provision of the Flower Mound Code of Ordinances,

they would also be committing a Charter violation, a ridiculous result.

Additionally, section 3.10 of the Charter authorizes the Council to adopt only rules of

procedure. In fact, the ordinance provision adopting Robert’s specifies that the rules are adopted to

the extent they are “procedural” in nature. The above-referenced provision of Robert’s, however, is

substantive in nature, not procedural, in that it declares rights, duties, and punishments. See, e.g.,

Black's Law Dictionary (10th ed. 2014), “Substantive Law,” “Procedural Law.” Thus, the above-

referenced substantive provision of Robert’s has not been adopted by the Council. In other words,

the Council’s express adoption of only procedural rules cannot operate effectively to enact law that

defines substantive rights, duties, and punishments.

The disclosure by Council member Webb to Mr. Pierson, therefore, was not a violation of

the Charter.

Application of the Ethics ordinance: No violation.




for the private interest of others. Additionally, part (14) prohibits knowingly disclosing information

Page 14

deemed confidential by law. There is no definition in the ordinance of the terms “benefit,” “private

interest,” or “deemed confidential by law.”

No evidence of any financial dealings, actual or contemplated, between Council member

Webb and Mr. Pierson was found. Nor is there any evidence that Mr. Pierson was engaged in activity

from which he stood to profit as a result of his volunteer, unpaid position as a P&Z member. To the

extent the prohibition of part (3) is based on preventing profit or financial gain, it is not applicable.

It was suggested that the term “benefit” in part (3) is broad enough to prohibit disclosing information

that would further Council member Webb’s political agenda for the Town. It was further suggested

that the term “private interest” in part (3) is broad enough to include disclosing information that

would have allowed Mr. Pierson to exercise his statutory right to have his removal from the P&Z

deliberated in public. Such broad constructions are not supported either by the policy and purpose

enunciated in the Ethics ordinance or by other ethics-related laws that use the same or similar terms.

Section 2-414 of the Ethics ordinance declares the policy and purpose of the ordinance by

identifying six different goals for the operation of a democratic government. None of those goals

were abridged by the disclosure of Council member Webb to Mr. Pierson. Other ethics provisions

are normally construed to prevent conflicts of interest arising from potential financial gain or divided

duties of loyalty. See Tex. Const. art. III, § 22, comment; Op. Tex. Att'y Gen. No. GA-0087 (2003);

Op. Tex. Att'y Gen. No. LO-88-44 (1988). No opportunity for financial gain or benefit to Council

member Webb was present. To the extent that Council member Webb may have been pursuing his

political agenda for the Town, he was doing what all public officeholders are elected to do. No

divided loyalty between the Town and another was present. Further, since the only possible result

of Council member Webb’s disclosure was to allow Mr. Pierson to exercise his statutory rights,

Page 15

which he otherwise would have lost, the action cannot be interpreted as detrimental or adverse to any

interest of the Town. Council member Webb’s disclosure did not constitute a violation of 2-414(3).

As explained above, the information concerning the possible removal of Mr. Pierson was not

confidential under TOMA, nor is it among the information deemed confidential by the Public

Information Act. It has been suggested that the information was confidential under the attorney-6

client privilege. The attorney-client privilege, however, applies only to information exchanged in

seeking legal advice. Tex. R. Evid. 503. The discussion in executive session that one or more of the

Council members was contemplating making a motion to remove Mr. Pierson at the next council

meeting did not involve the seeking or rendering of legal advice. The information concerning the

possible removal of Mr. Pierson was not deemed confidential by law. Council member Webb’s

disclosure did not constitute a violation of 2-415(14).

3.4. Kevin Bryant-Council member Place 3.

3.4.1. Social Media Sites

Allegation: That Council member Bryant used social media sites to deliberate with

Council members Brian Rountree and Itamar Gelbman on the subject of the potential investigation

of the Council, allegedly in violation of TOMA.

Factual Basis: Subsequent to assuming his position as a member of the Town Council,

Kevin Bryant posted to social media sites information concerning the subject of the potential

investigation of the Council. Council members Rountree and Gelbman also posted to social media

sites information concerning this same issue. Some of these Council members’ posts were to the

Tex. Gov’t Code §§ 552.101 to 552.156.6

Page 16

same social media site and some were to the same threads on those sites, although all three did not

post information concerning this issue to the same site and thread.


Generally, TOMA requires Council members to deliberate about Town issues in a properly-

noticed public meeting. Section 551.143 of TOMA prohibits Council members from conspiring to

meet in numbers less than a quorum to avoid the requirements of notice and public meeting under

TOMA. Social media could be used to effect a conspiracy in violation of TOMA. To constitute a

violation, however, the public official must have the requisite culpable mental state. Op. Tex. Att'y

Gen. No. GA-0326 (2005). No evidence that Council member Bryant “knowingly” attempted to

avoid the requirements of TOMA by using social media sites was found. Council member Bryant,

therefore, did not violate TOMA.

3.5. Steve Dixon-Council member Place 4.

No allegations were made against Council member Dixon.

3.6. Itamar Gelbman-Council member Place 5.

3.6.1. Disclosures to Vaught

Allegation: That Council member Gelbman disclosed to David Vaught information

provided to Council in executive session about incentives the Town was offering to grant to a gun

range and other businesses in violation of the Ethics ordinance.

Factual Basis: The factual basis for this allegation is disputed.

Gelbman verison: In the previous school year, Council member Gelbman’s daughter

and David Vaught’s daughter were in the same school class. As a result Council member Gelbman

had seen Mr. Vaught, knew who he was, and possibly had been introduced to him. Gelbman had not,

Page 17

however, had any face-to-face conversations with Vaught. At some point, probably around the first

of this year, Council member Gelbman and Mr. Vaught became Facebook friends. Also around the

first of this year, Council member Gelbman posted on Facebook that he was interested in opening

a gun range in Flower Mound. This post prompted Mr. Vaught to contact him and request a meeting.

The meeting occurred at local restaurant. At the meeting, opening a gun range was discussed.

Council member Gelbman and Mr. Vaught also discussed numerous other things and discovered they

had many things in common. A friendship blossomed from that meeting that eventually included

Council member Gelbman, Mr. Vaught, and their respective families. Council member Gelbman and

Mr. Vaught continued discussing “partnering up” in a gun range. Generally, Council member

Gelbman desired to acquire an equity interest in the business. Mr. Vaught was not receptive to

Council member Gelbman being more than an investor. Mr. Vaught provided a pro forma business

plan for the gun range to Council member Gelbman. These discussions were continuing when

Council member Gelbman was elected to the Town Council. Council member Gelbman never

discussed with Mr. Vaught incentives proposed to the gun range or incentives proposed to other

businesses by the Town, either before or after the executive session where they were discussed. The

first time Council member Gelbman heard about Town incentives proposed to the gun range was

when the Council went into executive session and the incentives were shown to him. Council

member Gelbman does not recall receiving any written information about incentives on the gun rage

in executive session. Council member Gelbman would have no copies of executive session handouts7

because he returns those to the Town Manager or to the Town Secretary. Occasionally, Council

According to the Town Manager and other Council members, a sheet on incentives7

proposed for the gun range and other businesses was distributed at the executive session.

Page 18

member Gelbman forgets to return the executive session documents, but he either shreds or trashes

any documents he forgets to return. When incentives for the gun range were brought up in executive8

session he tried to stay as far away from the issue as he could. Council member Gelbman believes9

he became aware that the incentives for the gun range were going to be discussed just before they

went into executive session, and he asked the Town Attorney if he could even “attend” the meeting.

The Town Attorney told Council member Gelbman that as long as he did not have an ownership

interest he had no conflict. Council member Gelbman believes it is possible the discussion with the

Town Attorney did not occur until the second meeting where incentives for the gun range were

discussed. Council member Gelbman did not give Mr. Vaught the incentives handout, which was10

passed out in executive session. When the vote on the incentives for the gun range came up during

the council meeting on July 20, 2015, Council member Gelbman recused himself, even though he

was not legally required to do so, because he was still contemplating investing in the gun range.

Council member Gelbman’s friendship with Mr. Vaught, however, had ended on June 11, 2015,

According to the Town Manager, Council member Gelbman had never returned any8

executive session material until the Council meeting after Council member Gelbman’s swornstatement was taken.

According to other Council members, Council member Gelbman participated in the9

discussion concerning incentives for the gun range in executive session and expressed consensuswith the other Council members on the incentives for the gun range. According to the TownManager, Council member Gelbman and he met one or two days after the Council meeting. Inthat meeting, Council member Gelbman expressed the opinion that the Town should offer thegun range more incentives than were discussed in executive session.

According to the Town Attorney, Council member Gelbman first contacted him on10

July15, 2015, to inquire about a potential conflict of interest. Council member Gelbman indicatedhe was in ongoing negotiations with a business to become a possible investor in the near future.Council member Gelbman did not identify the business in his conversations with the TownAttorney.

Page 19

when Mr. Vaught committed an act, which Council member Gelbman considers to be illegal. Since

that time, Council member Gelbman states, Mr. Vaught has threatened Council member Gelbman

both physically and legally. Council member Gelbman believes Mr. Vaught is making these alleged

threats because of Council member Gelbman’s reaction to Mr. Vaught’s acts on June 11. Council

member Gelbman believes he has texts that reflect his relationship and dispute with Mr. Vaught, but

he has not produced all of them.

Vaught version: David Vaught is a businessperson in Flower Mound. Sometime prior

to December 2013, Mr. Vaught conceived the idea of developing a gun range in the Flower Mound

area. In December 2013, he hired a consultant to aid him in the development of the gun range and

contacted a land broker to find a site. Mr. Vaught’s development of the gun range has been ongoing

to date. In January 2015, Mr. Vaught became aware Council member Gelbman, who he did not

know, had announced as a candidate for the Flower Mound Town Council. Mr. Vaught contacted

Council member Gelbman by social media concerning his political views to which Council member

Gelbman responded. Mr. Vaught and Council member Gelbman then established a friendly

relationship through social media without an actual face to face meeting. Mr. Vaught and Council

member Gelbman first met on March 16, 2015. On March 19, 2015, Mr. Vaught, through social

media, first told Council member Gelbman he was opening a gun range to which Council member

Gelbman immediately expressed interest in becoming a partner. In this March time frame Mr.

Vaught, through his consultant, became aware he could apply for incentives for the gun range from

the Town. Mr. Vaught’s consultant filed an application for incentives with the Town on April 24,

2015. At that time Mr. Vaught had not met with Council member Gelbman about participating in

the gun range. After Council member Gelbman was elected, Mr. Vaught, on May 19, 2015, inquired

Page 20

whether he was still interested in participating in the gun range to which Council member Gelbman

responded in the affirmative. On June 2, 2015, Council member Gelbman called Mr. Vaught and

told Mr. Vaught that he, Council member Gelbman, needed to meet with him immediately about the

gun range. Council member Gelbman requested they meet at La Madeleine restaurant. Mr. Vaught

met with Council member Gelbman at La Madeleine on June 2, 2015, as requested. Mr. Vaught took

a copy of a pro forma for the gun range to the meeting. At the meeting Mr. Vaught gave Council

member Gelbman the pro forma. Council member Gelbman showed Mr. Vaught a copy of the June

1, 2015, executive session handout on incentives proposed for the gun range and other businesses

seeking incentives from the Town. Council member Gelbman told Mr. Vaught he thought the gun

range incentive package was insufficient and that Mr. Vaught could get more. Council member

Gelbman specifically discussed the incentive package offered to Mi Dia restaurant. Mr. Vaught

became uncomfortable and left the meeting. The next day Mr. Vaught texted Council member

Gelbman saying “Don’t sweat the economic incentives’ thing” and that he was going to accept the

Town’s incentive offer. After the La Madeleine meeting there were no further serious discussions

between Council member Gelbman and Mr. Vaught concerning Council member Gelbman

participating in the gun range.

As of June 2, 2015, the Town had not entered into incentive agreements with any of the

businesses listed in the June 1, 2015, executive session handout.

Application of Ethics ordinance: Possible violation, prosecution recommended.




Page 21

for the private interest of others. Part (14) prohibits a public official from knowingly disclosing

information deemed confidential by law. Council member Gelbman obtained non-public information

concerning incentives offered to the gun range and to other businesses locating in the Town solely

as a result of his position as a Council member. The incentive packages being offered to other

businesses was information deemed confidential by law because the Town had not made incentive

agreements with any of the listed businesses when the information was allegedly disclosed. Tex.

Gov't Code Ann. § 552.131 (b). At the time he gained the non-public information he was in ongoing

negotiations with Mr. Vaught to obtain an interest in the gun range. Depending how the veracity of

each witness is judged, a finder of fact could reasonably conclude from the evidence that Council

member Gelbman knowingly disclosed this confidential non-public information to Mr. Vaught, and

the disclosure was intended to enable Mr. Vaught to negotiate a greater incentive package for the gun

range, a private interest and benefit. Based on the foregoing, therefore, and depending on how a

finder of fact may view the evidence, it is possible that Council member Gelbman has violated

Sections 2-415 (3) and (14) of the Ethics ordinance. The evidence is sufficient to justify11

recommending prosecution of Council member Gelbman for these possible violations.

3.6.2. Social Media Sites

Allegation: That Council member Gelbman used social media sites to deliberate with

Council members Brian Rountree and Kevin Bryant on the subject of the potential investigation of

the Council, allegedly in violation of TOMA.

The Ethics ordinance’s penalty provision provides that a violation committed11

knowingly constitutes a misdemeanor, punishable by a fine as prescribed by the Code ofOrdinance’s general penalty provision, section 1-13.

Page 22

Factual Basis: Subsequent to assuming his position as a member of the Town Council,

Council member Gelbman posted to social media sites information concerning the subject of the

potential investigation of the Council. Council members Rountree and Bryant also posted to social

media sites information concerning this same issue. Some of these Council members’ posts were to

the same social media site and some were to the same threads on those sites, but all three did not post

information concerning this issue to the same site and thread.


Generally, TOMA requires Council members to deliberate about Town issues in a properly-

noticed public meeting. Section 551.143 of TOMA prohibits Council members from conspiring to

meet in numbers less than a quorum to avoid the requirements of notice and public meeting under

TOMA. Social media could be used to effect a conspiracy in violation of TOMA. To constitute a

violation, however, the public official must have the requisite culpable mental state. Op. Tex. Att'y

Gen. No. GA-0326 (2005). No evidence that Council member Gelbman “knowingly” attempted to

avoid the requirements of TOMA by using social media sites was found. Council member Gelbman,

therefore, did not violate TOMA.

3.6.3. Misuse of position with respect to Flick property

Allegation: That Council member Gelbman misused his position as a Council

member while present at property owned by Sharon Flick, allegedly in violation of the Ethics

ordinance.

Factual Basis: The factual basis for this allegation is disputed.

Gelbman version: Council member Gelbman was contact by Ms. Flick. She

explained to him that Town employees were scheduled to inspect her property for potential code

Page 23

violations later in the day, and she requested he be present. She further explained to him that she had

been fighting with her neighbors, which had prompted mutual complaints about each other to the

Town about various matters. Previously, she told Council member Gelbman, Town employees had

treated her “really bad.” She told him she was concerned that the Town employees would scare or

intimidate her, and she wanted him to be a witness. He agreed, saying he would like to attend an

inspection. The reason he wanted to attend an inspection, he explained, was because the Town

employees have a very bad reputation in dealing with residents. Since he was newly elected, Council

member Gelbman did not think the Town employees would know who he was, so it would give him

an opportunity to anonymously view the inspection and the conduct of Town employees. Council

member Gelbman held the opinion that if the Town employees knew he was a Council member it

would affect their conduct. Council member Gelbman arrived at Ms. Flick’s property before any

Town employees and inquired of Ms. Flick as to the issue requiring the inspection. Ms. Flick

identified a pile of dirt on the property as the issue. The first Town employee arrived, acted rudely,

and inquired as to Council member Gelbman’s identity, to which Council member Gelbman twice

replied he was only a neighbor, asked to be there by Ms. Flick. The employee in a rude manner began

the inspection. Two other Town employees arrived. Council member Gelbman asked the Town

employees to turn off the “strobe” lights on their trucks. Council member Gelbman also so inquired

as to the necessity of three Town employees at the inspection. One of the Town employees then

recognized Council member Gelbman as a member of the Town Council. Then Town employees

became a lot nicer. Shortly thereafter Council member Gelbman left. Council member Gelbman

holds the opinion that the inspection on Ms. Flick’s property was a “joke,” that it resembled a

S.W.A.T. operation, and that Ms. Flick was treated badly.

Page 24

Town employees’ version: The Town received a complaint with regard to an alleged

violation of the flood plain ordinance on a parcel of property owned by a Ms. Flick. Town employees

made attempts to contact Ms. Flick at the property to discuss the complaint and possible code

violations. They were not able to contact her on site. Subsequently the Town employees contacted

her by telephone and made an appointment to discuss the matter with her on site. At the scheduled

time for the appointment a Town employee with the capital improvement department arrived on site.

Ms. Flick was present with a gentleman, who was not known to the Town employee. The Town

employee introduced himself and inquired as to the identity of the gentleman. The gentleman

responded he was with the Town. When the Town employee inquired as to what department, the

gentleman presented a business card identifying himself as Council member Gelbman. Two

additional Town employees from Code Enforcement arrived on site. The first employee from the

capital improvement department was the one who primarily talked with Ms. Flick and Council

member Gelbman. During the course of the meeting, Council member Gelbman inquired whether

the Town normally had a meeting on site in situations like this and stated it seemed like a waste of

Town funds to have three employees and three Town vehicles on site for a small pile of dirt. The

Town employee explained the process and the problem. Council member Gelbman’s demeanor and

comments left the Town employee with the impression Council member Gelbman was of the opinion

the Town employees were bothering Ms. Flick for no reason. Council member Gelbman inquired

as to what the Town wanted Ms. Flick to do. The Town employee explained what the process would

be from that point forward. Council member Gelbman then left the site.

This event was also the subject of email communications between Council member Gelbman

and the Town Manager. In those communications, Council member Gelbman references his

Page 25

presentation of his Town Council business card to the Town employee.

The Investigator sought an interview with Ms. Flick about the matter, but she refused to be

interviewed.

Application of Ethics ordinance: No violation.

Section 2-415(10) of the Ethics ordinance prohibits “knowingly” performing any act “in order

to deliberately hinder the execution and implementation” of any ordinance. The Town employees

were at Ms. Flick’s property to enforce Town ordinances. In order to constitute a violation of 2-

415(10), Council member Gelbman would have to have intended that his presence and demeanor

at the inspection hinder the Town employees in their enforcement of Town ordinances. However,

Council member Gelbman’s stated intent was to anonymously observe a Town inspection. The

determination of Council member Gelbman’s actual intent, however, is complicated by the fact that

some of Council member Gelbman’s statements appear to be at odds with other evidence. For

example, his description of his conduct and statements while on the scene is inconsistent with the

Town employees’ description of what happened. In particular, Council member Gelbman claims

that he tried to remain incognito until recognized by one of the employees as a Council member,

while the employee states he immediately identified himself as being a Council member by

presenting his Town business card. The employee’s version is supported by Council member

Gelbman’s own email in which he referenced his presentation of a business card to the Town

employee. However, even if Council member Gelbman did immediately identify himself as a

member of the Town Council, that is not enough to conclude that his intention was to hinder the

employees. Even though the employees may have rightfully perceived displeasure in Council

member Gelbman’s demeanor, that also is not enough to conclude that his intention was to

Page 26

deliberately hinder their performance of their jobs. Although it is possible Council member Gelbman

intended to hinder Town employees the evidence is insufficient to establish his intent.

Council member Gelbman’s actions at the Flick property did not violate the Ethics ordinance.

4.0. Summary.12

The evidence with regard to the alleged violations of the Charter, TOMA, and the Ethics

ordinance by Mayor Hayden, Council member Webb, and Council member Bryant during the

relevant period is undisputed. None of them committed any violations. No violations were alleged

against Council member Dixon during the relevant period. The evidence with regard to Council

member Gelbman’s alleged violation of TOMA during the relevant period is undisputed. Council

member Gelbman did not violate TOMA. The evidence regarding Council member Gelbman’s

alleged violation of Sections 2-415(3) and (14) of the Ethics ordinance during the relevant period

is disputed. A conclusion concerning whether these violations occurred can not be drawn without

judging the veracity of the witnesses. The investigation procedure used is ill-suited for and not the

proper vehicle for resolving conflicting testimony. However, there was sufficient evidence of

violation of 2-415(3) and (14) developed in the investigation to recommend prosecution of Council

member Gelbman. Prosecution allows the conflicting evidence to be resolved in a traditional trial

proceeding where the finder of fact can observe the credibility and demeanor of the witnesses and

the accused can confront the accusers. Council member Gelbman’s alleged violation of Section 2-

415(10) is also disputed. However, even if the version of the events adverse to Council member

The opinions expressed in this report are limited by the defined scope of the12

investigation to violations of the Town Charter, TOMA and the Ethics ordinance. No opinionsare expressed or implied concerning the application or violation of any other statute, ordinance orregulation.

Page 27

Gelbman is accepted it is insufficient to prove he had the requisite mental state necessary for a

violation. No conclusions are drawn concerning Council member Rountree because of his

resignation.

Page 28

Documents

Flower Mound Town Council Investigation Report