Berryman Expenses Finally Detailed in Response to Request and Complaint
After the Fact Compilation Now Open to Public Scrutiny
Georgetown Council Member Pat Berryman has at last provided a report of the expenses she claims to have incurred, and for which she was retroactively issued a payment of $13,600 by the City of Georgetown.
The 20-page report comes 10 months after Berryman was paid, a result of The Austin Bulldog’s open records request and subsequent complaints filed with several law enforcement agencies.
“The attached expense report is accurate to my recollection and has been verified by the research I have done with city staff, and my own records,” Berryman states in an October 15 cover letter.
“It was a difficult task because so much time has elapsed from this time period. I think it should be noted that the Georgetown City Council was not required by the city resolution to provide documentation of any kind. Therefore, it was not anticipated this would occur.
“None of the other council members have been or are being required to provide this in depth information regarding the reimbursement for expenses. I must say that it is unfair to be singled out in this manner.”
Berryman only state employee on council
The Austin Bulldog targeted Berryman because she was the only state employee serving on the council during the period covered by her $13,600 payment, July 2008 through December 2009. As a state employee, she was prohibited by Section 40(b) of the Texas Constitution from drawing a salary for service as an elected official. Berryman should prove her expenses are legitimate and not a means to circumvent the salary prohibition, according to opinions issued by the Texas Attorney General.
“At the very least, the official should submit an affidavit that the actual expenses he incurs each month equal or exceed the allowance payment,” states Attorney General Opinion JM-1266 of December 20, 1990. “The better practice would be for the official to itemize his expenses each month in order to demonstrate the allowance does not exceed expenses incurred.”
That opinion was reinforced in Attorney General Opinions 93-33 and 93-37 issued on April 26, 1993, and May 18, 1993, respectively.
Why are the records important?
Berryman was a state employee working for State Senator Steve Ogden (R-Bryan) during the 17 months covered by the $800 a month payments, according to payroll records obtained through a previous open records request.
Georgetown City Manager Paul Brandenburg notified Berryman of the salary prohibition in a letter July 16, 2008.
The city manager’s letter also notified Berryman she would be reimbursed for her actual expenses for mileage, meals, and cell phone usage if she provided receipts.
Berryman never provided receipts and therefore she was not reimbursed—until last December when the new in-house city attorney, Mark Sokolow, reversed the legal advice previously given to Berryman and facilitated the $13,600 payment.
Berryman provided no receipts to justify the payment, but instead sent an e-mail to Sokolow on December 15 that listed 16 types of expenses. The e-mail did not provide dollar amounts for the listed expenses. She was paid three days later.
The Austin Bulldog reported the $13,600 payment May 4 and characterized it as a violation of the Texas Constitution, as interpreted by several Attorney General opinions that require a state employee holding public office to prove that actual expenses equal or exceed the amount of money taken for expenses.
Given the city attorney had facilitated the payment and the city was unlikely to take corrective action, on May 11, The Austin Bulldog filed a request for Williamson County District Attorney John Bradley to initiate an investigation into this matter. Bradley subsequently dismissed the matter without prosecution.
The claimed expenses
In her report, Berryman claims to have incurred the following expenses in connection with her service as a city council member:
• $554 a month to maintain a home office of 495 square feet,
• $76 a month for a home telephone,
• $30 a month for e-mail access via cell phone,
• 55 cents a mile for driving her personal vehicle on trips for city business, plus
• Occasional meals.
The only receipts Berryman provided were pages of Visa card statements for six meals.
According to Berryman’s compilation, her expenses each month exceeded by a small amount the $800 a month she was paid retroactively for 17 months. The claimed expenses range from a low of $801 to a high of $828. The average for the 18 months in question is $810. (These figures are rounded to the nearest dollar.)
The $554 a month for Berryman’s home office equates to 68 percent of her average month’s claimed expenses, while the telephone accounts for another 9 percent, and e-mail access for her cell phone makes up about 4 percent. The remaining 19 percent is made up mostly of charges for mileage.
Are the expenses legitimate?
The Austin Bulldog analyzed Berryman’s expense report and concluded that it raises questions as to the validity of the expenses she claims to have incurred in performance of her duties as a city council member, as follows:
Home office—To qualify to deduct expenses for business use of a home for income tax purposes, a person must use part of the home exclusively and regularly as a principal place for one’s trade or business, according to IRS Publication 587.
Berryman’s calculations showing how she arrived at $554 a month for a home office are contained in IRS Form 8829, which she provided as part of her report.
Line 35 of that form indicates that $6,644 was calculated as an allowable expense for the business use of her home in 2009. Dividing that figure by 12 results in the allowance of $554 a month that she claimed. Although no additional documentation was supplied,the same $554 a month was applied as an expense for July through December 2008.
Line 1 of the Form 8829 indicates that her home office is 495 square feet, or 15 percent of the home’s total of 3,300 square feet, which is shown on Line 2.
The Williamson Central Appraisal District record for Berryman’s home at 206 Champions Drive in Georgetown indicates the home measures 3,609 square feet. An office of 495 square feet would constitute 13.7 percent of 3,609 square feet. That would lower the allowable expense from $554 a month to about $526 a month.
A larger question is whether an office of 495 square feet is appropriate and necessary for her council duties. In her e-mail of December 15, in which Berryman requested retroactive payment for expenses, Berryman listed (in Item 4) “Expenses associated with my designed home office (city does not provide office space for City Councilmen).”
Office design standards located through research indicate that 180 square feet to 225 square feet are appropriate for an enclosed executive office and 280 square feet is suitable for an upper management office. (All other types of offices listed in these standards are smaller.) Berryman’s office is roughly twice as big.
An office of 495 square feet would measure, for example, about 20 feet wide and 25 feet long, or 12-1/2 feet wide and 40 feet long.
At Georgetown City Hall, Mayor George Garver’s office is 177 square feet and City Manager Paul Brandenburg’s office is 203 square feet, according to information supplied November 5 by Shirley Rinn, Brandenburg’s executive assistant, in response to a request from The Austin Bulldog.
Telephone—Berryman claims to have paid an average of $76.40 a month “to have a listing in the phone book for constituents to be able to call.” She states this amount does not include any long distance. It should be noted, however, that:
• Telephone number prefix—Berryman’s home number is 930-2777. Verizon customers pay an extra $20 a month, plus additional taxes, for a 930 prefix, which allows people in the metro area to call without paying a toll charge. A 930 number may not be necessary for the constituents of her small city council district, which has an estimated 8,000 residents, according to a map that was e-mailed to the mayor and council members by Georgetown City Manager Paul Brandenburg on May 19.
• Family names are listed—Both the 2008 and 2009 telephone directories list the home phone as “Robert and Pat Berryman,” which indicates the telephone is for family use. There is no separate listing for “Pat Berryman” or “Council Member Pat Berryman.”
Mileage—The majority of trips listed in Berryman’s expense report are for trips to and from City Hall, which the report states requires a round trip of 17 miles.
Google Maps show the distance from Berryman’s home at 206 Champions Drive to City Hall at 107 E. 7th St. is 6.5 miles by the most direct route. A round trip would be 13 miles, or four fewer miles per trip.
At 55 cents per mile, this equates to a possibly overstated expense of $2.20 per round trip. The cumulative difference for the 172 trips to City Hall claimed during the 18 months covered by the report is about $378.
Obviously it’s difficult for Council Member Berryman to dredge up accurate information covering a period that stretches back for more than two years. Nevertheless, expenditures from public funds deserves close public scrutiny. The Attorney General, in approving an open records request submitted by The Austin Bulldog, required Berryman to provide an accounting.
In the final analsysis, the expense report prepared by Council Member Berryman raises more questions than it answers.
Berryman was informed by the city manager’s letter that if she provided receipts for her actual expenses for mileage, meals and cell phone usage she would be reimbursed. For whatever reason, she chose not to do that. She waited until a new city attorney arrived and got him to facilitate a lump-sum payment of $13,600.
Now more than ever, in view of Berryman’s expense report, the $13,600 payment appears questionable for someone, who during the time covered by the payment, was a state employee barred by the Texas Constitution from drawing a salary.
Berryman’s report was obtained through a open records request filed May 17 by The Austin Bulldog under the Texas Public Information Act. The request asked for any and all records in Berryman’s possession that would substantiate the expenses for which she claimed reimbursement in carrying out public business and for which she was paid $13,600 by the City of Georgetown.
On June 1, the City of Georgetown referred the request to the Attorney General, arguing that records of Berryman’s expenses are not “public information” under the Act and that “the City does not own the information or have a right of access to it.”
As permitted by the Act, on June 3 The Austin Bulldog submitted comments to be considered in deciding this matter, arguing that Berryman was reimbursed from public funds for performing public business. Therefore any records in her possession that support the payment of $13,600 from public funds are public records.
On August 5 the Attorney General issued Opinion OR 2010-11849, stating that any records held by the council member that document expenses for which she received public funds are “public information” and must be released.
On August 8, The Austin Bulldog e-mailed Assistant City Attorney Bridget Chapman, to furnish a copy of the Attorney General’s opinion, and request the records be provided. The City of Georgetown did not reply to that e-mail.
When the expense records were not forthcoming, on September 16—six weeks after the Attorney General’s opinion was published—The Austin Bulldog filed requests with the Attorney General and the Williamson County District and County Attorneys to investigate the City of Georgetown and Council Member Berryman for violation of Section 552.353 of the Texas Local Government Code, Failure or Refusal to Provide Access to or Copying of Public Information. All three of these organizations are empowered by the Act to compel release of records through court action.
In addition, failure to comply may result in criminal charges. An offense is a misdemeanor punishable by a fine of not more than $1,000, confinement in the county jail for not more than six months; both the fine and confinement. A violation also constitutes official misconduct.
On October 19, the City of Georgetown mailed a letter containing information for Berryman’s expenses for June 2008 through June 2009. (Information for June 2008 was not requested, as Berryman was not paid for that month.) However, no information was provided about Berryman’s expenses for the months of July 2009 through December 2009.
In response to The Austin Bulldog’s e-mail of October 25, the remainder of the information was supplied by the City of Georgetown.
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