Bagwell, David hearing on complaints against Earl Swift and Jeff Wall on Local News and Events LocalNewsOnly.com

December 16, 2003
David Bagwell Evidentiary Hearing against Colleyville P&Z members Jeff Wall and Earl Swift to be continuedStreaming video in article by Nelson Thibodeaux

The evidentiary hearing on the ethics complaints filed against Colleyville's P&Z Chairman Jeff Wall, along with his Monticello neighbor and fellow Commissioner Earl Swift, followed a similar pattern in Colleyville city government these days; the meeting continued until midnight and no resolution was reached.

The complaints filed against Wall and Swift alleges that they used their positions on the Planning and Zoning Commission to "protract" the time necessary to approve Bagwell's Old Grove residential plat. Bagwell's complaints point out that Swift and Wall both live in the Monticello addition and expressed belief that the Whittier Heights residential project was causing silt to accumulate in the ponds of Monticello. Evidence was presented that both members attempted to have representatives of Bagwell "fix" the perceived problem or inferred his Old Grove plat would be held up for approval. Copies of the entire complaints are linked below:

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Ethics Complaint Against
P&Z Chairman Jeff Wall

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Ethics Complaint Against
P&Z Member Earl Swift

Click on photos to enlarge.

(l to r) The Ethic Commission Members are Tom Lisle, Steve Magee, Ross Foster, City Attorney, Linda Bond, Chairman, Mark Melson and Richard Newton. Not shown is Fred Ballinger sitting on the far right.

(l to r) Frank Hill, Attorney for Bagwell, David Bagwell, Joe Potoff, Land Use Consultant to Bagwell, Conrad Kasselman, Attorney for Earl Swift, Earl Swift, and Jeff Wall. Wall's attorney, Kathy Lanford, not shown, arrived well after the proceedings began.

Attorney Kasselman made repeated objections to evidence offered by Bagwell's complaint.

Early Swift's attorney Conrad Kasselman completed his cross examination of developer David Bagwell late Monday evening just minutes before midnight.

The Ethics Commission moved to adjourn and resume with their own questions when they reconvene. However, there were additional witnesses sworn in on behalf of Bagwell that have yet to be questioned. It is not clear that Bagwell's attorney Frank Hill will call additional witnesses for Bagwell. The only witnesses sworn in for Earl Swift and Jeff Wall were themselves.

What is also not clear is when the next meeting to complete the process will be held because of conflicts with the attorney's schedules. Cynthia Singleton, the City Secretary, is to work with the parties to obtain a follow up date.

At the beginning of the hearing, Bagwell's attorney Frank Hill asked the Ethics Commission to consider requiring member Fred Ballinger to recuse himself. Hill pointed out that Ballinger had actually spoken in opposition to the Old Grove project at a public hearing. Ross Foster noted that there were no provisions for the commission to require Ballinger to disengage from the considerations. Foster continued that the decision was up to the member to voluntarily recuse himself. Ballinger stated that he was not going to recuse himself and that he could be impartial in making a decision on the complaints.

At the November 4th city council meeting, Earl Swift spoke in favor of Mayor Hocutt's appointments to veto of new P&Z members saying, "wipe the slate clean." Ballinger on right spoke against the Bagwell Old Grove project at a previous P&Z meeting.

Ethics Commission Member Fred Ballinger spoke on the same evening in favor of Hocutt's veto. Ballinger was nominated to the commission by Mayor Hocutt. Ballinger refused to recuse himself from voting on the the Bagwell complaint.

During opening arguments, Earl Swift's attorney Conrad Kasselman called the Bagwell complaint's "red herrings." He said that Swift had no personal interest but Bagwell properties were causing drainage problems and that Swift used no improper conduct.

Jeff Wall read a statement on his own behalf. He said that he denied all the allegations and never was advised by city staff or guided by the city that any of his actions were unethical. Wall said the city council is now dealing with Bagwell's Old Grove plot and that Mayor Joe Hocutt lives in Monticello, however has not had to recuse himself from the discussions. He said the P&Z approved Bagwell's plat and sent it forward to city council.

Jeff Wall gave his own opening statement and said that he denied all allegations. He pointed out that Mayor Hocutt also lives in Monticello but did not have to recuse himself from discussions about Old Grove during council deliberations.

Bagwell's attorney presented a well documented case with actual sound bites from the P&Z meetings along with large blow up boards with statements of Wall and Swift. Swift's attorney Kasselman expressed his objection to every exhibit of that nature presented to the Commission. Kasselman argued ,using court room type justification, that the boards were taken out of context and that the only true representation is the entire tape recordings of the meetings.

Swift's attorney Kasselman, seen standing 2nd from right, consistently objected to the use of large reader boards that highlighted statements of Swift and Wall during meetings and a workshop. Chairman Linda Bond consistently overruled Kasselman's objections telling him this was a hearing, not a court of law, and that he would have an opportunity to present his case.

During the presentation, Bagwell's attorney presented a drainage map of the area along with reference to where the homes of Swift and Wall are in Monticello and where the common areas are located.

Attorney Frank Hall reviews a drainage map with Bagwell. At the conclusion of Hall's questioning of Bagwell, he presented various statutes from the Colleyville Ethics Code and asked Bagwell to comment on why he felt there had been violations.

In this steaming video, Bagwell points out discussions of Whittier Heights during the plat hearing from Old Grove were "problematic".
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In this streaming video Bagwell explains that Swift and Wall were using their position to ask for "special privileges for themselves."

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Jeff Wall's attorney Kathy Lanford took up the first cross-examination of David Bagwell. In contrast to the presentation by Bagwell's attorney Frank Hill, Lanford appeared ill-prepared and combative. She used a reader board to point out the Texas statutes allowed cities to determine their own procedures. Bagwell replied it was his understanding that if a city procedure was in conflict with the State of Texas, then the state process would prevail or have to be reconciled. Lanford claimed that any meeting called by the P&Z Chairman was a "public hearing" and grilled Bagwell on that issue. Bagwell's attorney finally objected pointing out that a public meeting and a public hearing properly noticed were in fact two different issues.

Jeff Wall's attorney Kathy Lanford is seen placing a reader board used to question Bagwell. Lanford appeared combative and confrontational with Bagwell, at one point asking him "why was he so angry, was it because he was asked questions at the work shop he didn't want to answer?" Bagwell answered, "I am not angry."

In contrast, Earl Swift's attorney Conrad Kasselman demonstrated he was obviously not a stranger to court room litigation based on his legal-type objections to evidence and his focus on technical issues. Kasselman had begun the procedures by asking the complaint be dismissed because the initial paperwork filed against Swift on September 26, 2003 was not notarized. Chairperson Bond overruled Kasselman and, thereafter, it was a night of overruling of his objections by Chairperson Linda Bond, with assistance and consultation from the City Attorney. Kasselman's initial strategy seemed to focus on looking for a technical knock out punch and he continued to bring up a number of technical objections during the questioning of Bagwell by Bagwell's attorney.

At one point, after repeated objections by Kasselman that the only true evidence of what Wall and Swift said were on the complete recorded tapes of the meeting, Chairperson Bond asked all the members of the commission if they had listened to all the tapes. Every member of the commission indicated they had listened to the tapes on their own.

Upon cross-examination of Bagwell, Kasselman drilled down on what percentage of the complaint that Bagwell prepared on his own. Bagwell replied he did not recall the percentage of the complaint that he personally prepared versus his staff or attorneys. After answering the same question several times, Bagwell asked, "is there anyway I can make it (what percentage Bagwell prepared) any clearer?"

Frank Hill, David Bagwell and Conrad Kasselman examine the initial complaint that was not notarized. The complaint had been turned in to City Secretary Cynthia Singleton, apparently however, the document was accepted without notarization. Thereafter, the error was corrected when Bagwell filed a complaint that had been notarized on October 3rd.

While Wall's attorney Kathy Lanford and Swift's attorney Conrad Kasselman have yet to put on their two witnesses, apparently Wall and Swift, the first round clearly went to Bagwell's attorney Frank Hill.

Kasselman appeared to be a polished and accomplished attorney, however was obviously frustrated in his attempts to have his objections sustained concerning the rules of evidence presented. Kasselman's defense of the complaints against Swift, based on the cross examination of Bagwell, seemed entrenched in finding legal technicality errors, such as the initial failure to have the complaint notarized.

It was not clear what role Jo Ann Gasper, 4th from left, was playing during the proceedings with Swift and Wall. Gasper withdrew her name for consideration of reappointment to the P&Z last year when it was revealed that she failed to report contributions solicited from David Bagwell. At one point, during Bagwell's cross-examination, Gasper leaped from her seat in the audience and whispered to Swift, Wall and their attorneys. Gasper's complaint against Richard Newton had earlier been dismissed by a unanimous vote by the Ethics Commission for, among other reasons, failure to be filed timely and lack of facts. In private conservations, at least one member of the commission, who asked not to be identified, noticed Gasper's actions and commented that, "it is not only a lack of decorum and respect for the proceedings, but considering what the commission just dealt with (Gasper's unsubstantiated complaint against Newton) what in the world would make Swift and Wall think Gasper's ongoing bizarre conduct would be helpful to their position?"

Lanford seemed intent on a display of hostility toward Bagwell and a justification of the actions of Wall. Neither Kasselman or Lanford disputed that the commissioners discussed matters during the Old Grove plat hearing that had nothing specifically to do with that project. On the other hand, the attorneys indicated their interpretation is that Wall and Swift had every right to bring up external matters of drainage from other projects. Lanford and Kasselman also claimed, that while the statements on the reader boards may have been made, they were not an accurate reflection of their client's position and were taken out of context.

Kasselman's TV courtroom type of questioning of Bagwell included how did he know the voices on the tape he identified were actually that of Swift and Wall. Kasselman objected to transcripts of the tapes prepared by Hall's law firm. Kasselman went as far to question Bagwell on who typed the complaints. While this approach is standard fare in a civil court room, the long line of ancillary questions seems trivial and not on target in a hearing about ethics by a civilian board.

The hearing was conducted in a serious and professional manner. The members of the Ethics Commission listened intently to the approximate 4 hours of questions and answers. At the end, it became obvious that the commission would not be able to hear all the witnesses, conduct their questions and deliberate on Monday night.

The drama is contemplated to continue in the same library meeting room, however the time and date have not been set.

The next meeting of the Ethics Commission to continue hearing evidence on the Swift and, Wall complaints will be announced publicly as soon as attorney schedules and commission member schedules can be resolved. Apparently that jigsaw puzzle alone could take weeks.

Citizens will find these procedures to be significantly more informative and entertaining than the perpetual and redundant arguments for and against Colleyville mayor's vetoes expected again at Tuesday's night's city council meeting.

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