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Ethics commissioners request more evidence in complaint against Save Austin Now

Tuesday, January 19, 2021 by Jonathan Lee

Save Austin Now, the nonprofit that is gathering signatures to reinstate the city’s ban on homeless camping, faced an ethics complaint at last week’s Ethics Review Commission meeting. The complaint, brought by political consultant Mark Littlefield, alleges that the organization overstepped the bounds of its 501(c)(4) status by engaging in unauthorized political activity and failing to disclose donors.

“We all knew what they were doing and why they were doing it,” Littlefield said. “We knew that they were starting with the nonprofit in order not to disclose their donors.”

In last week’s preliminary hearing, the commission’s job was to judge whether the complaint merited a final hearing.

Donna Davidson, counsel for Save Austin Now, requested dismissal, arguing that the commission did not have jurisdiction to rule on the status of the organization. “Whether Save Austin Now is a political committee is not a decision that can be made by this commission,” Davidson said. 

Commissioners disagreed. “I don’t buy the jurisdictional argument,” Chair Luis Soberon said. Commissioner Jaustin Ohueri said that the commission can use the “facts and circumstances” of the case, just as a federal court would, to determine whether the organization is a 501(c)(4) or a political action committee and whether it violated city code.

According to federal law, only some of a 501(c)(4) organization’s activity can be political. Davidson insisted that Save Austin Now does more than just advocate for the ballot measure; it tries to offer help for the homeless and work with other groups that do so. 

“Just because only a slice of what Save Austin Now has been doing has been highly publicized, doesn’t mean there are not other efforts to educate, to inform, to work towards the betterment of the city of Austin,” Davidson said.

Federal law also limits the amount of political expenditures a 501(c)(4) can make. “We argue that we haven’t met that threshold,” Davidson said. Littlefield claimed that Save Austin Now had paid people to collect signatures. Davidson refuted the charge: “I don’t believe any volunteers were paid.”

Littlefield, who said he misunderstood the purpose of the meeting, provided little evidence of the alleged violations. When asked to provide more evidence, Littlefield said: “You know it when you see it.” Commissioner Betsy Greenberg questioned whether the complaint merited a final hearing, given the lack of evidence. “We need better evidence than ‘you know it when you see it,’” she said.

Despite Greenberg’s reservations, the commission decided unanimously to hold a final hearing. “We deserve to learn more at a final hearing,” Commissioner Ohueri said. “Whether Save Austin Now is a PAC is a fact question; I don’t think we have enough facts.” 

Littlefield promised to bring witnesses to back his allegations and previewed his request for Save Austin Now’s financial records. Davidson wanted to see all communications between Littlefield and Mayor Steve Adler, Council Member Greg Casar and other political figures. 

Before a final hearing can take place, both Littlefield and Save Austin Now must work together to determine what facts to bring to the table. The commission will conduct an evidentiary hearing at its next scheduled meeting in February. It will then schedule the final hearing.

Save Austin Now’s petition to put a ballot measure before voters in November 2020 was invalidated after the city clerk found improper signatures, leaving the petition with fewer names than the required 20,000. The nonprofit pushed again for signatures this winter. If the group gathered the required 30,000 names by the Jan. 18 deadline, the city clerk will then verify the signatures, a process that can take three to five weeks.

If the petition is valid, Davidson said they would then form a general purpose committee that “would be the political arm” of the 501(c)(4) for the subsequent ballot measure.

The Austin Monitor’s work is made possible by donations from the community. Though our reporting covers donors from time to time, we are careful to keep business and editorial efforts separate while maintaining transparency. A complete list of donors is available here, and our code of ethics is explained here.

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