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Campaign law toothless tiger, says city lawyer

Tuesday, April 26, 2005 by

The City Attorney’s office says potential violations of campaign contribution limit laws under the Austin City Charter, approved by the voters in 1997, cannot be prosecuted due to the way they were written. Assistant City Attorney Jennifer Gilchrist said sections of the City Charter related to the $100 limit on campaign contributions, the $15,000 limit on out-of-town contributors and other rules in the Charter regulating contributions are unenforceable.

Gilchrist, who’s in charge of advising the city on campaign-related regulations, sent a letter to Place 4 candidate Wes Benedict, who complained about opponent Council Member Betty Dunkerley. Benedict accused Dunkerley of taking more than $15,000 from non-Austin residents and of taking more than $100 from seven people. Dunkerley said she was returning contributions above the $15,000 limit and that she had not been aware of having gone over the limit. Benedict said Dunkerley’s contributors who gave her more than $100 could have been making contributions on behalf of their wives, but that the incumbent’s contribution report showed otherwise.

In her letter to Benedict, Gilchrist said, “The City Charter Article III, Section 8 (Limits on Campaign Contributions and Expenditures) is not an instrument authorized to create a penalty under Texas Penal Code Section 1.03(a) and is therefore not self-enacting.” The penal code section Gilchrist cites allows cities to criminalize conduct only by municipal ordinance. Further, Gilchrist writes, “Accordingly, although your complaint will be forwarded to the Ethics Review Commission, we will advise the Commission that it does not have jurisdiction over this matter.”

Benedict said he also filed an affidavit with the Municipal Court yesterday alleging that Dunkerley violated the $100 and $15,000 limits. When informed that the City Attorney’s Office would be unlikely to prosecute his complaint because of their reading of the law, Benedict was philosophical. “I think a lot of these campaign finance laws…these rules…are unenforceable; but the fact that the language is there is a problem,” he said. As a Libertarian, Benedict said he is opposed to the contribution limits. He said he was not in Austin in 1997 when the current Charter language was approved by voters, but noted that local Libertarians had opposed the measure. Even though he does not necessarily agree with the rules, Benedict said, he believes they should be followed.

Benedict also said he filed a complaint against the Austin Police Association PAC with the Texas Ethics Commission because the APA PAC failed to notify the campaigns of Dunkerley and Lee Leffingwell for Place 1 on a timely basis that the PAC had made an expenditure to further their candidacy. “They’re supposed to notify the candidate by the end of the reporting period. According to (APA President) Mike Sheffield, they didn’t notify them until 3/31…The end of the reporting period was on 3/28,” noted Benedict. So, the information was not reported on the contribution and expenditure reports filed on April 7.

"This is very unsettling," said Benedict. "By missing the deadline, the APA PAC allowed the candidates to avoid reporting that they were receiving financial support from it. I was pleased to see that ( Place 3 candidate) Gregg Knaupe erred on the side of candor, and reported it anyway. My opponent, Betty Dunkerley, on the other hand, did not. Now early voting has started, so the information will come too late for many voters." The PAC reported that it spent $5,000 to assist the three candidates in its own contribution and expenditure report. That report was filed with the Texas Ethics Commission on April 5.

Gilchrist also informed Place 1 candidate Steve Adams via letter that the City Clerk’s Office would not be taking any further action to validate signatures of persons who signed petitions to place his opponent, Lee Leffingwell’s name on the ballot. Two other persons who complained about Dunkerley’s petition signatures have been sent similar letters. In her letter to Adams, Gilchrist explained that the city followed appropriate validation procedures and does not have the authority to take further action related to the signatures.

Rollingwood hires Watson to deal with LCRA

The City of Rollingwood has retained former Austin Mayor Kirk Watson to represent the city in discussions with the L ower Colorado River Authority on the issue of cost overruns on the city’s wastewater project.

LCRA General Manager Joe Beal told his board that LCRA and Rollingwood officials would be meeting today to discuss the issue. In a letter to residents, Mayor Hollis Jefferies told residents that a wastewater project that was projected to cost $7.2 million five years ago now would cost closer to $17 million.

Beal told his board that the cost of the actual connection to the Austin wastewater system – the portion of the cost that Austin controlled — was more than either side suggested. Laurie Lentz, spokeswoman for the City Of Austin Water and Wastewater Department, referred questions back to Jefferies.

In his letter to residents, which is posted on the city’s website, Jefferies wrote that the original plan was to connect 75 residences to the wastewater system; to date, more than 500 residents and 28 of the city’s 36 commercial properties have been connected to wastewater services.

To do that, however, will require much higher sewer rates than the city originally anticipated—about 50 percent more than the original estimates. For instance, the original estimates would have been an average of $55 for residential customers and $86 for commercial customers each month; those monthly fees are now $88 and $133, respectively, under the revised cost estimates.

Jefferies would not discuss why he thought the project had cost overruns. In his letter to Rollingwood residents, Jefferies questioned LCRA’s “construction management and administrative costs.”

“The project started in ’99,” Jefferies said. “Sometime in 2003-2004, they let us know that the project would cost more than $7 million. For all intents and purposes, it’s finished right now, since the end of 2004. They just sent us a bill.”

City Administrator Don Ferguson confirmed the city had retained Watson & Bishop last month. He said today’s meeting with LCRA would be to decide whether the two sides could begin to discuss the issues.

Quality of life discussions begin

The first African American Quality of Life Forum drew a standing-room only crowd Modnay night to the conference room in the Street-Jones Building, as college students and community members discussed the city's lack of attractions for younger African Americans and the steps the City of Austin could take to improve the situation.

Panelist Candice Wade, a graduate of Huston-Tillotson University now studying at the Thurgood Marshall School of Law at Texas Southern University in Houston, told the crowd she had recently convinced her friends not to make a road trip to Austin. "I have to honestly say, I was embarrassed," she said. "I was embarrassed to bring back students, because there was nothing for us to do. I don't feel like Austin provides a welcoming atmosphere for young African-American people. When I graduate, I don't know if I plan on coming back home, and that's sad." Other panelists from area colleges agreed that the lack of a vibrant social scene for young African-American adults was a problem for Austin.

But Wade, who was one of the plaintiffs in the Cedar Avenue case, said the focus should not be exclusively on nightclubs and social activities. Jobs, she said, would be a major factor for young people in deciding whether to remain in Austin or move elsewhere. Several other panelists concurred, urging the city to do more to work with major corporate employers on internship and recruitment programs and to help smaller, African-American owned businesses.

Other suggestions ranged from the promotion of a citywide festival of African-American culture to the creation of more golf courses in East Austin. On the plus side, the students identified the Millennium Youth Entertainment Complex and Huston-Tillotson University as community "gems" that should receive additional promotion and publicity.

Group Solutions RJW will hold two more of the community forums today, the first at 11:30am with a panel made up of corporate executives, the next at 6:30pm featuring community leaders. The forums, all of which are being held at the Street-Jones Building, are not limited to specific interest groups.

©2005 In Fact News, Inc. All rights reserved.

Voting picks up . . . A total of 1,837 voters cast ballots Monday, including those received in the mail. Northcross Mall is now attracting the most voters, although the University of Texas polling place continues to have a higher than usual volume of activity. Yesterday, 161 citizens cast ballots at Northcross Mall, 147 at Randall’s on South MoPac, 141 at Randall’s on Research and 119 at UT . . . Historic zoning case initiated. . . Last night, the Historic Landmark Commission agreed to initiate a historic zoning case on the house at 1409 East 2nd Street. The house, built in 1902, was tied to the Lyman Bailey, who was an early probation officer in the city and the commissioner of the local Boy Scouts chapter. The owner of the house, who has developed property at East 2nd Street and Chicon, wants to subdivide the property into three lots. The house could be relocated . . . Spaghetti Warehouse becomes club . . . The historic Spaghetti Warehouse is about to go through a radical change, or as radical a change as a historic building can undergo. The restaurant will soon be the nightclub Six, and the Historic Landmark Commission last night approved a sign change that would create the S-I-X in three frosted glass panels – almost 30 feet across – in front of the club. Changes to the roof and entrance already were approved by the HLC in a prior meeting. The club will likely be a hot spot for another reason: one of its investors is six-time Tour de France winner and Austinite Lance Armstrong . . . Meetings . . . The Parks and Recreation Board will meet at 6:30pm in the board room at 200 South Lamar Blvd. The board will receive a presentation on First Night Austin….The Planning Commission will meet at 6pm in Council Chambers. The commission will consider Commercial and Retail Design Standards, and will also discuss and possibly take action on a State Highway 130 white paper. . . Buda Town Hall Meeting . . .Hundreds of North Hays County citizens are expected to pack a Town Hall meeting in Buda concerning a controversial rock quarry which sits atop the Edwards Aquifer Recharge zone. The meeting will be held at 7pm tonight at Hays Hills Baptist Church in Buda, 1401 N FM 1626. Hays County Justice of the Peace Beth Smith will facilitate. State Sen. Jeff Wentworth, State Rep. Patrick Rose, Hays County Judge Jim Powers, Hays County Commissioner Susie Carter, and Buda Mayor John Trube are invited to participate in the panel discussion on the operation. Representatives of the Texas Department of Transportation and the Barton Springs Edwards Aquifer Conservation District (BSEACD) were also invited. The operator of the quarry, KDBJ, L.P, has refused an invitation to appear on the panel. A map and more information is available at

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