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Ethics commission rules it has no jurisdiction over Shade complaint

Monday, May 23, 2011 by Josh Rosenblatt

The Ethics Review Commission’s hearing last Friday on a complaint filed by Council Member Randi Shade against Place 3 challenger Kathie Tovo ended badly for Shade but may have ended worse for the commissioners. The commission’s decision to dismiss the complaint due to a lack of jurisdiction left the commissioners unsure about their role going forward.

Shade filed the complaint with the Office of the City Clerk on May 13, one day before Election Day, and she came back and notarized it on May 17. Shade received 33 percent of Saturday’s votes and Tovo received 46 percent, meaning a runoff is needed to determine the winner.

Shade alleges that the Tovo campaign violated the Austin Fair Campaign Ordinance by allowing a pro-Tovo political email from former Save Town Lake Chairman Tom Cooke to be sent to Save Town Lake supporters from the campaign’s server without a disclaimer saying it came from the Tovo campaign.

In addition, Shade alleges that the email list Cooke used, and purchased from Save Town Lake several years ago, constitutes an in-kind donation in excess of the $350 maximum contribution allowed under the City Charter.

Shade has also accused Tovo of violating the “spirit” of the fair campaign ordinance by signing the candidate contract after all the other candidates had already declined, meaning only her campaign would be eligible for $64,000 in public funds should the race go to a runoff. Shade asked the commission to recommend that the city hold off on distributing that money until a determination on the ethics complaint could be made.

But the merits of Shade’s complaints turned out to be of less concern to the commission than their authority, or lack thereof, to make a determination of the merits.

At the start of the meeting, attorney Rex Van Middlesworth, who was retained by the city to advise the commission on the complaint, told the commissioners that though city code gives the Ethics Review Commission the authority to conduct hearings on campaign finance matters, the commission only has jurisdiction and sanctioning authority over issues related to city officials and employees. Since Tovo is currently neither, Van Middlesworth said, the commission’s jurisdiction is questionable at best.

“Several times the commission has dismissed complaints concerning campaign finance violations … based on a lack of jurisdiction,” Van Middlesworth said.

The attorney also said that the last three chairs of the Ethics Review Commission – including current Chair James Henson – had sent letters during their tenures to the City Council asking the Council to either delete the clause in city code that allows the commission to hold hearings on campaign finance matters or amend the clause that gives the body no sanctioning authority over those matters.

Still, the commission decided to hear the complaint.

But Fred Lewis, the lawyer representing the Tovo campaign, stuck with the theme, pointing out that the commission has no jurisdiction over the lack of a state election disclaimer on the emails. That is the jurisdiction of the Texas Ethics Commission, he said.

In addition to pointing out questions about the commission’s jurisdiction, Lewis argued that under the terms of the Fair Campaign law, Shade has no standing to complain about the campaign contract being breached because she herself never signed that contract.

“Look at the law and it’s clear that a candidate that does not sign the campaign contract has no right to enforce the contract against the alleged violator, the contract signer,” Lewis said. “Under (city code), you have to be a signer of the contract to pursue remedies.”

Texas Ethics Commission rules state that political advertising does not include email communications.

After Lewis’ presentation, Van Middlesworth said that even if Shade had signed the campaign contract, the Ethics Review Commission would have no authority related to a complaint.

“If there’s a dispute between the city and a candidate, the contract and the law provides that the dispute is to be decided in a state district court of Travis County,” Van Middlesworth said.

The whole situation seemed to frustrate Commissioner Susan Morrison.

“I want us to stop wasting our time,” she said. “We have a bunch of professionals here that took off work to be here, and why are we even accepting, why is the city clerk even accepting these complaints if we have no jurisdiction and the candidate doesn’t have standing even if we did have jurisdiction?”

Morrison tried to get a friendly amendment added to Commissioner Velva Price’s motion to dismiss the complaint due to a lack of jurisdiction. That amendment would have stated that the commission found that Shade had no standing to file a complaint.

But Morrison’s fellow commissioners rejected the amendment, arguing that it would be “inconsistent” to claim no jurisdiction but still make a determination.

“If we’re going to dismiss for lack of jurisdiction,” said Henson, “We need to dismiss for lack of jurisdiction, period.”

So the commission voted instead to dismiss the complaint and to write another letter — the fourth – to Council asking for more clarity on the commission’s role and authority moving forward.

“Maybe that will be the charm,” Price said, “so that this thing can be cleared up for future actions.”

Only four of the six members of the commission attended Friday’s hearing. The commission also has one vacancy.

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