in Houston, Texas

'Toothless,' secretive Texas Ethics Commission fails the public

Thursday, Oct 27, 2011, 09:00AM CST
By Mark Lisheron
Texas state Capitol

As it heads into a state performance review that could determine its future, Craig McDonald is worried legislative sentiment is growing to gut the Texas Ethics Commission.

The commission is not a particularly sympathetic victim. Its champions, including McDonald, director of the left-leaning government reform group Texans for Public Justice, are among its harshest critics. The public, they say, has been miserably served by an agency trussed and muzzled by a Legislature over which it is supposed to keep watch.

At the same time the commission is rarely involved in the most serious ethics violations in state politics it has managed to raise the ire of legislators for what they see as overly aggressive enforcement of its rules for filing campaign finance, personal income and lobby reports.
Craig McDonaldCraig McDonald

“I think we are at a risk that there hasn’t been since the Ethics Commission was created,” McDonald said. “I think there is a feeling that you heard during the last session that the Ethics Commission was out of control. What you really have is a commission that is toothless, that was designed by the Legislature to be toothless.”

Rep. Dennis Bonnen, R-Angleton, admits there exists more than an air of annoyance. More than the fines, he says, otherwise honest elected officials are made to explain to the voters in their districts ethics transgressions he calls “ticky-tack I dotting and T crossing.”

Bonnen ought to know. Since 2007 the Ethics Commission has fined him $1,200 for three instances of errors in his filings, most recently $500 for being a day late filing a personal income report.

The fines had nothing to do with Bonnen’s request upon being named chairman of the Sunset Advisory Commission that the Ethics Commission review scheduled for 2015 be moved to this year.

Bonnen moved the timeline up, he says, because he believes the Legislature needs the nonpartisan analysis the Sunset Advisory Commission will gather over the next five months.

“Sunset is one of the few truly non-political things we do around here, and that’s what we need with the Ethics Commission,” Bonnen says. “I thought the time was right for us to have this discussion.”

The discussion has continued with little interruption for 20 years since Gov. Ann Richards successfully pushed to have the creation of an Ethics Commission on a statewide ballot.

Texans used to their politics big and brash were nonetheless more than a little appalled to learn that not only was East Texas chicken magnate Lonnie “Bo” Pilgrim cutting contribution checks for $10,000 on the floor of the Senate during the 1989 session, but was bragging about it.

The news triggered an ethics reform movement that led to voters comfortably approving changing the state Constitution to create the commission in January of 1992.

Some reformers, however, including then-Travis County District Attorney Ronnie Earle, warned of the inevitable conflicts posed by a commission made up of eight political appointees answering to a Legislature it might one day be investigating.

One day never came. In its report to the Legislature 10 years after the Ethics Commission first convened, the Sunset Advisory Commission said the commission’s chief failing was its inability of staff to investigate ethics complaints, subpoena documents and share information with law enforcement agencies.

The report came as no surprise. The Legislature had made no provision, either legal or in funding, for the commission to do investigations.

Enforcement power? ‘They never do anything’: Austin attorney

To make a point, for several years Fred Lewis, an Austin attorney and a good government advocate, drafted long and intricate open records requests asking for all documents pertaining to all investigations conducted in a year by the Ethics Commission.

Every year Lewis received nothing in return for his request, which he took note of in a scathing 60-page critique he delivered to the Legislature in 2001.

“How can this be any sort of enforcement agency if they don’t do investigations?” Lewis says. “They never interviewed a witness under oath - never, ever. They never subpoenaed a document. The bottom line is they never do anything.”

This might be too harsh a criticism, McDonald says. Within its purview, the Ethics Commission, with its $2 million annual budget, does a good job handling complaints made by citizens, he says.

Indeed, the commission sees its handling of an increased number of complaints as a sign of its overall effectiveness and public confidence in its performance, according to a self-evaluation report the commission’s executive director David Reisman filed in August with the Sunset Commission.

According to its records, the commission handled a record 440 sworn complaints in 2010 and 230 so far through Oct. 17 this year. A decade earlier the commission took on just 93 complaints and 48 in its inaugural 1992.

The commission collected $268,162 in late filing penalties and $56,365 in sworn complaint fines in 2010, according to its self-evaluation report.

The commission posts on its website copies of every one of the actions taken on complaints that are heard, a fraction of the total the commission does not publicize.

Much of what the commission does it will not publish or discuss. The commission refuses to acknowledge receiving or looking into complaints. It will not disclose the names of the individuals or organizations making the complaint. It will not discuss how it arrives at a fine or its amount.

And it will not discuss its affairs or its Sunset review or the criticism from citizen advocates or the Legislature with the press. In response to an e-mail with five detailed questions, commission spokesman Tim Sorrels wrote, “As you know, the Commission doesn't typically participate in interviews. However, Executor Director Reisman provides the following response to your questions:

‘We think that the Texas Ethics Commission Evaluation Report speaks for itself. We are looking forward to the Sunset Commission Review process and hope that it will build upon the work of the 2002 Sunset Commission Review. Thank you for your interest in this very important process. We believe that the public’s interest and involvement in the process is critical for maintaining and improving the agency the citizens of this state voted to create.’”

Phone calls made to a handful of commission members by Texas Watchdog seeking comment also went unanswered.

‘Everything is secret over there’: Travis Co. Attorney David Escamilla

This culture of confidentiality, created and protected by the Legislature, has created particular problems for prosecutors investigating criminal ethics violations.

Last October a jury in Travis County convicted longtime South Texas Rep. Kino Flores on felony charges for failing to list on the financial disclosure reports that are filed with the Ethics Commission substantial income he earned unethically.

The case was investigated and brought to trial by the Travis County District Attorney’s office. If the Ethics Commission had been investigating, there is no record of a sworn complaint order.

As part of a probation agreement, prosecutors were able to compel Flores to file corrected financial disclosure statements with the Ethics Commission, Gregg Cox, who heads the government crime unit for the Travis County D.A., said.

Five months later, the Ethics Commission fined Flores $700 based on those corrected statements, Cox said.

Five years earlier, a Travis County grand jury investigating Flores filed a letter with the court expressing outrage that the district attorney was “thwarted in their efforts to prosecute public officials because they are allowed to hide behind the lax and vague codes of the Texas Ethics Commission.”
David EscamillaDavid Escamilla

In 10 years, Cox says he has never had a case referred or had so much as a discussion about an ethics issue with anyone at the commission. In 2003 when he took office, Travis County Attorney David Escamilla met with commission staff to offer his cooperation.

“I’m not aware of one case that has been referred to us,” he says. “Everything is secret over there. At the very least you’d like to know that there is an investigation going on.”

“There is no cooperation or coordination, and that hurts the public interest,” McDonald says.

No one except Rep. Linda Harper-Brown, R-Irving, knows whether or not the Ethics Commission ever chose to look into her use of a Mercedes-Benz that was a payment in-kind to her husband from a company with state contracts.

While the arrangement was legal, Harper-Brown returned the car and promised to introduce legislation closing the spousal loophole in the law.

A Watchdog search could find no such bill, and although several calls were made to Harper-Brown, she did not return one of them before deadline.

A few months later, longtime Rep. Joe Driver, R-Garland, admitted double-billing his campaign fund and the state for thousands of dollars in expenses over a period of several years. More than a year later, Driver announced he would not run for re-election.

When asked by Watchdog, Driver would not say whether double-billing was the reason he was leaving the House after 20 years nor would he say his case was under Ethics Commission review.

“My attorney would shoot me if I were to say anything about that, but there were reasons, when it became unenjoyable the last two sessions,” Driver says.

Politically-driven ‘gotchas’ reviewed, double-dipping not addressed

Changes over the past several years that have added to the reporting requirements have made it less enjoyable for elected officials and lobbyists who are also required to report on their finances.

The changes haven’t necessarily meant cleaner government, says Jack Gullahorn, who has attended Ethics Commission meetings for years and is the head of the Professional Advocacy Association of Texas.

Gullahorn says he thinks the more detailed filing requirements coupled with better online record keeping has made it easier for political opponents to file “gotchas,” driving up complaint numbers.

Getting nicked by the commission for leaving a line blank on a campaign report while Driver’s double-dipping and Harper-Brown’s spousal loophole go unaddressed have a few legislators seriously questioning the commission’s purpose, Gullahorn says.

“I get the sense there are some in the Legislature who think it (the Ethics Commission) ought to be a real, legitimate enforcement tool, and they hate the way they handle all these little pissant fines,” Gullahorn says.

Ken Levine, director of the staff that will conduct the review of the commission for Sunset, is well aware of the dissatisfaction. Late last session, Sen. Mike Jackson, R-La Porte, was able to get passed an amendment that would have watered down culpability for omissions and errors on ethics reports.

When asked about it by the Austin American-Statesman, Jackson, who said he had been egged on by irate colleagues, said he had erred and asked the governor to veto his amendment.

“We know that in some people’s opinions the Ethics Commission doesn’t do what it is supposed to do. We know that,” Levine says. “But it is very early in the process. We haven’t even started meetings with the agency. Our past reports are just a starting point.”
Dennis BonnenDennis Bonnen

Like those past reports, this latest Sunset review due in March can just as easily be ignored by the Legislature. “I’ve been here long enough to know never to say I know what the Legislature is thinking about anything,” Bonnen says.

The worst thing the Legislature could do, McDonald says, is to use its own circumscription of the commission as a pretext to further reduce or eliminate ethics oversight in the state.

“They think it rings true, that they are being nitpicked for their so-called mistakes,” McDonald says. “But the further away you get from holding people to these minimal offenses, the further you get from disclosure altogether. Our take is do your reports the right way and suck it up.”

Speak out
  • Jim Graham, chairman of the Texas Ethics Commission, (512) 463-5800

Ethics Commission members
The Texas state Ethics Commission includes experts in law, diplomacy, and investing, as well as a minister. Read more about the commission members:

James Graham, chair, a resident of Dallas, is currently an investment manager at Hunt Realty Corporation. He is a graduate of Miami University and George Washington University.

Wilhelmina Ruth Delco, vice chair, was the first African-American elected to the school board of Travis County, Texas. She spent 20 years serving in the Texas state legislature. After leaving the legislature in 1995, she accepted a position as adjunct professor of education at the University of Texas.

Jim Clancy is the president of Branscomb/PC, a business law firm with offices in Corpus Christi and Austin. He is a member of the firm's Litigation Group. His practice focuses on complex commercial and fiduciary litigation, and he also handles selected matters defending the firm's clients in personal injury lawsuits. His experience includes million-dollar verdicts for his clients in commercial disputes and countless significant settlements and dismissals. Clancy is a West Point graduate and a former Armored Cavalry Captain who served in the 1st Cavalry Division in Operation Desert Storm.

Tom Harrison is director of legal and governmental relations for Texas County and District Retirement System. He is a member of the State Bar of Texas, the Council on Governmental Ethics Laws and the National Association of State Election Directors. He received a bachelor’s degree from Texas A&M University, a master’s degree from the University of Utah and a law
degree from the University of Texas School of Law.

Bob Long is a minister, rancher, banker and board member of three international ministries. He is a board member of the First National Bank of Bastrop County, a member of the Bastrop County Character Education Committee, and a member and past president of the Bastrop Ministerial Alliance. He is also chaplain for the Bastrop Police Department and Bastrop County Honor Guard. He served in the U.S. Army and U.S. Army Reserves.

Paula M. Mendoza, of Houston, is president and owner of Possible Missions. She is chairman of the Texas Association of Mexican American Chambers of Commerce, executive board member of the Houston Hispanic Chamber of Commerce. She is a former member of the state Board of Public Accountancy.

Tom Ramsay, is a former Texas state representative and owner of Tom Ramsay Real Estate. He is a member of the Texas Association of Realtors, Texas and Southwest Cattle Raisers Association, and Independent Cattle Association. He is also a member and past president of the Mt. Vernon Rotary Club and Franklin County Chamber of Commerce.

Chase Untermeyer has been an international business consultant since 2007 after serving three years as ambassador to Qatar by appointment of President George W. Bush. Untermeyer has held both elected and appointed office at all four levels of government – local, state, national, and international -- for more than 35 years, with work in journalism, academia, and business as well. He is a member of the Council on Foreign Relations.

***
Contact Mark Lisheron at 512-299-2318 or mark@texaswatchdog.org or on Twitter at @marktxwatchdog.

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Photo of Texas state Capitol by flickr user Kumar Appaiah
, used via a Creative Commons license.

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