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Zimmerman campaign mailer provokes ethics complaint

Monday, October 17, 2016 by Jack Craver

City Council Member Don Zimmerman may once again face the wrath of the Ethics Review Commission for violating a campaign finance ordinance that he believes is not legal.

The outspoken conservative possibly broke city campaign rules, the commission decided Wednesday, when he failed to include the following disclaimer on a mailer he sent to voters in his Northwest Austin district: “This campaign has not agreed to comply with the contribution and expenditure limits of the Austin Fair Campaign Chapter.”

The disclaimer is required of candidates who do not agree to strict spending limits ($75,000 during the general election campaign and $50,000 in a runoff). Candidates who do agree to spending limits are rewarded with campaign money from the city’s fair campaign fund, which is funded by lobbyist registration fees.

In recent years, few candidates have taken advantage of that option; the only current Council members who signed the fair campaign contract during the last campaign were Pio Renteria and Leslie Pool. Those two, along with candidate Susana Almanza, received roughly $28,000 from the city – or a third of the $83,000 in the fair campaign fund at the time.

Zimmerman also opted not to sign the fair campaign contract. And in an ostensible attempt to express his contempt for the rule, he added a couple of extra words, along with some strategic punctuation, to the required disclaimer: “This campaign has not agreed to comply with the contribution and expenditure limits of the so-called “Fair” Campaign Chapter.”

To Cathy Morgan, a retired high school math teacher who lives in Zimmerman’s District 6, the candidate’s mailer was a clear violation. She filed a complaint with the Ethics Review Commission against Zimmerman for violating the city campaign finance ordinance.

Unlike the last time the commission dealt with an alleged campaign finance violation by Zimmerman, the Council member actually showed up to counter the accusation at the commission’s meeting on Wednesday. His attorney was busy and he wanted to save money on legal fees anyway, he later explained to the Austin Monitor.

In a short statement, Zimmerman vigorously rejected Morgan’s claim. He had “substantially complied” with the ordinance by including a disclaimer that included all of the key information required by the rule, he argued.

But just as important, he said, the disclaimer requirement is unconstitutional since it “compelled” him to engage in speech that he disagrees with. His first oath is to the U.S. Constitution, he said, not city ordinances.

Commissioners’ responses to Zimmerman’s arguments were mixed.

Chair Peter Einhorn said that the commission does not have the jurisdiction to entertain the Council member’s constitutional claims and that the panel is obliged to assume the ordinance is constitutional until it is ruled otherwise by a court.

Commissioner Ben Stratmann, referencing his own conservative politics, said he sympathized with Zimmerman’s objections to the requirement but that the ordinance is “pretty black and white” about the message candidates have to include.

As he did in hearings over two ethics complaints last year – one against Zimmerman and one against Arif Panju, Zimmerman’s appointee to the Historic Landmark Commission – Commissioner Brian Thompson barely concealed his contempt for the respondent and his defense. He criticized Zimmerman’s claim that the ordinance was unconstitutional, pointing out that the commission’s own legal counsel had said that courts had upheld similar laws throughout the country.

“I have a problem with a Council member getting to decide … what’s constitutional and what’s not,” he said.

Thompson’s questioning of Zimmerman soon devolved into a shouting match between the two, with Zimmerman accusing Thompson of using the hearing to make “political statements.” Einhorn eventually intervened, asking both men to simmer down.

“This is a ridiculous hearing,” Zimmerman huffed.

Commissioner J. Michael Ohueri said that Zimmerman likely did not “substantially comply” with the ordinance since he clearly made a choice not to use the required wording on his mailer. Substantial compliance, suggested Ohueri, would be an acceptable defense in the event of a mistake, such as a misspelling.

In addition, asked Ohueri, if Zimmerman wanted to express his opposition to the Fair Campaign Ordinance, why couldn’t he have done so elsewhere on the mailer?

“I have a tremendous record of accomplishment in my first 21 months in office, and I couldn’t fit it all in,” responded Zimmerman. “I’m trying to efficiently use all the space.”

Zimmerman got some support from his own appointee to the commission, Kenneth Smith, who argued that the Council member’s alteration of the disclaimer was not enough to prevent voters from understanding the message.

Commissioner Matt Lamon also bought Zimmerman’s substantial compliance argument, despite expressing distaste for Zimmerman’s decision and voicing concern about allowing candidates to choose which parts of city rules they want to follow.

“Substantially, we do understand his point. I kind of regret the circumstances, but everybody on this dais understood what he was saying, as well as the complainant,” he said.

By a vote of 7-3, the commission found that there were reasonable grounds to believe Zimmerman had violated the ordinance, meaning the panel will schedule a final hearing in the coming weeks to determine whether he committed a violation. Commissioner Paul Quinzi joined Smith and Lamon in opposing the motion, while commissioners Meagan Harding, Debra Danburg and Dennis Speight joined Einhorn, Stratmann, Thompson and Ohueri in supporting it. Commissioner Donna Beth McCormick was absent.

Zimmerman is up for re-election on Nov. 8. He is facing liberal opponent Jimmy Flannigan, whom he narrowly beat to win his seat two years ago.

This story has been corrected to reflect that Commissioner Dennis Speight was not absent for the vote.

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