Tuesday, September 29, 2015 by Jack Craver

Zimmerman will face ethics charges

Members of the Ethics Review Commission didn’t seem to know what to make of the four complaints lodged against Austin City Council Member Don Zimmerman. The charges, leveled by Mark Walters, a law clerk, forced the panel to explore the murky line between the public and private life of an elected official, a line that the world of social media has made all the more difficult to define.

In the end, the commission will not proceed to a final hearing on two complaints focused on Zimmerman’s online activity. However, it will proceed on two complaints based on campaign finance reporting requirements.

The commission quickly dismissed the complaint that has garnered the most attention. That issue focused on a Facebook comment Zimmerman made in June, shortly after the Supreme Court’s landmark ruling establishing same-sex marriage as a right.

Although commissioners cited deep dismay with Zimmerman’s comment, in which the freshman Council member suggested that the logical conclusion of the Supreme Court’s ruling would be establishing a right to pedophilic marriages, they rejected the allegation that his comment was a violation of city ethics policy. Walters had alleged that Zimmerman’s remarks had violated a vague provision of city ordinances that requires city officials to be “impartial and responsible” and to ensure that the “public have confidence in the integrity of its government.”

“If we were here to determine whether Mr. Zimmerman was an embarrassment to this city, it would be a much easier decision,” said Commissioner Brian Thompson. “As one of my colleagues said earlier tonight, ‘There’s no ethics rule against being stupid.'”

Commissioner Kenneth Smith, who was appointed to the panel by Zimmerman, echoed Thompson’s comments, calling the Council member’s remarks “repugnant” and saying that he hopes that voters would take them into account during the next election. However, he said, it was not the role of the commission to censure Zimmerman for his comments.

Ten commissioners voted to dismiss the complaint, while Commissioner Matthew Lamon abstained. Zimmerman, who was not required to be present at the hearing, was represented by lawyer Jerad Najvar, a First Amendment attorney who has represented a number of prominent clients who have sought to overturn campaign finance regulations.

“I hope this hearing is replayed in civics classrooms,” said Najvar. “Apparently we need a reminder that government bodies can’t sit in judgment of the substance of public officials’ comments.”

The second Facebook-related complaint was murkier, with many commissioners not knowing exactly how to respond to the nearly 200 pages of Zimmerman’s online activity from his work computer that Walters received through an open records request.

Kaplan suggested that the frequent visits to social media sites was not evidence that Zimmerman was using public property for personal use, and feared that to treat it as such could open up most city officials to ethics complaints over any visit to a site that could be used for private purposes.

“I don’t want to turn the Ethics Review Commission into the Facebook police commission,” he said.

Others, however, were concerned by Walters’ belief that the city law department did not turn over all of the online records that he had requested. In particular, he voiced skepticism that so few records were turned over for the day of Zimmerman’s comment on gay marriage. By moving to a final hearing, the commission would have the opportunity to get clarification from the law department and perhaps to have Zimmerman answer for his Facebook use and whether he considered it to be a part of his public function.

But the commission deadlocked on whether to move to a final hearing, with five members voting to dismiss the complaint, five members voting to advance it, and one member, J. Michael Ohueri, abstaining.

The commission did vote to proceed to a final hearing over two complaints based on Zimmerman’s campaign finance reports. There, Zimmerman allegedly did not submit a bank reconciliation statement and a debt reconciliation statement.

Najvar provided a far less vigorous response to those complaints, saying that while he conceded that Zimmerman hadn’t filed the required paperwork, the documents were duplicative of other forms he had submitted.

The commission voted unanimously to hold the final hearing on the ethics complaints on Oct. 13. In accordance with the commission’s practices, Zimmerman will be present to answer to the complaints.

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Key Players & Topics In This Article

Austin City Council: The Austin City Council is the body with legislative purview over the City of Austin. It offers policy direction, while the office of the City Manager implements administrative actions based on those policies. Until 2012, the body contained seven members, including the city's Mayor, all elected at-large. In 2012, City of Austin residents voted to change that system and now 10 members of the Council are elected based on geographic districts. The Mayor continues to be elected at-large.

City of Austin Ethics Review Commission: The Ethics Review Commission is charged with review of, among other issues, ethics complaints leveled against City of Austin boards and commission members. They meet quarterly.

Don Zimmerman: Former Austin City Council Member for District 6 (2014-2016)

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