This story was updated 4:35pm February 16, 2023, to link the sworn complaint filed by Council Member Mackenzie Kelly.
This story was updated at 11:05am January 5, 2023, to add a supplemental allegation of electioneering within 100 feet of a polling place, for the county attorney’s consideration.
Complaints arise from Adler using the city’s ATXN TV channel to endorse candidates in the runoff elections
Mayor Steve Adler’s final day in office is this Friday, but he’s getting kicked in the seat of his pants as he leaves. Criminal complaints were filed against him late today for using city resources to publicly endorse council candidates in the December 13th runoffs.
Sworn complaints against Adler were filed by District 6 Council Member Mackenzie Kelly and defeated District 9 candidate Linda Guerrero. Both are represented by Austin attorney Bill Aleshire. (Disclosure: Aleshire represents The Austin Bulldog in matters concerning open records requests.)
Adler did not respond to requests for comments recorded on his office and cell phone numbers and a text message sent to his cell phone.
The complaints stemmed from Adler’s endorsement of candidates on the ballot for the December 13, 2022, runoff election.
In the ATXN archived video of Adler’s statements, he noted that it was December 1st, the first day of early voting for the runoffs. Adler enthusiastically endorsed both District 9 candidate Zohaib “Zo” Qadri and District 3 candidate Jose Velasquez.
Qadri’s runoff opponent was Linda Guerrero while Velasquez was opposed by Daniela Silva. Both Qadri and Velasquez won seats on the City Council.
Adler in his statements also touted the qualifications of mayoral candidates Kirk Watson and Celia Israel to be the next mayor, without endorsing either one. Adler did not mention the runoff candidates for District 5, Ryan Alter and Stephanie Bazan. Alter (no relation to incumbent District 10 Council Member Alison Alter) also won his race.
Complaints filed with several authorities
Aleshire provided an email indicating he sent the complaints to Travis County Delia Garza, who could prosecute criminal charges for a Class A misdemeanor for violation of Texas Election Code Section 255.003(a), unlawful use of public funds for political advertising. That sections states, “An officer or employee of a political subdivision may not knowingly spend or authorize the spending of public funds for political advertising.”
His email to Garza states, “I hope you will agree that no public official, Democrat or Republican, friend or foe, should be able to use public resources to endorse or oppose political candidates as Mayor Steve Adler did. If Mayor Adler’s example were to become precedent, government officials who have privileged access to TV staff, equipment, and websites could use those public resources for ‘political advertising’ to endorse or oppose political candidates in violation of laws intended to prevent such misuse of public resources.”
Garza could not be reached for comment.
Aleshire supplemented the complaint filed with Garza via email at 4:43pm to include the alleged offense of Texas Election Code Section 61.003 for electioneering for or against any candidate within 100 feet of an outside door through which a voter may enter the building in which a polling place is located. In this instance, City Hall was a polling place. This is an additional Class C misdemeanor.
The complaints also were filed with City Attorney Anne Morgan, who has jurisdiction to prosecute violations of the City Charter, for violation of City Charter Article XII, Section 2, which prohibits a city officer from soliciting or exerting influence over any other officer or employee of the city to favor any particular candidate for office in the city. This is a misdemeanor offense that upon conviction requires forfeiture of office and a fine of up to $200.
Aleshire’s email to Morgan states, “Mayor Adler’s press conference and broadcast on the City’s ATXN website available to all city employees was use of his position, at least indirectly, to influence other officials and employees of the City to support his favored candidates and oppose those he did not endorse. Therefore, my clients, Ms. Kelly and Ms. Guerrero request that you initiate an investigation into whether Mayor Adler’s actions violate City Charter Art. XII, section 2. No precedent should be allowed to stand that permits such misuse of City resources.”
Morgan did not immediately return voice and text messages requesting her comments.
In addition, the complaints were filed with the Texas Ethics Commission alleging violation of Section 255.003(a) of the Texas Election Code for using the City’s resources, to include ATXN staff, equipment, website to record and advertise a press conference in which Mayor Adler engaged in political advertising as defined by Section 251.001(16) of the Texas Election Code to endorse candidates in the December 13, 2022 council runoff elections.
The Texas Ethics Commission’s website states, “The Ethics Commission is authorized to undertake civil enforcement actions in response to a sworn complaint, hold enforcement hearings, issue orders, impose civil penalties, and refer matters for criminal prosecution.”
“The filing of a sworn complaint sets in motion a process that may include a preliminary review as well as informal or formal hearings.”
Trust indicators: Ken Martin has been doing investigative reporting in the three-county Austin metro area since 1981. His aggressive reporting twice garnered first-place national awards for investigative reporting. Both of those projects resulted in successful criminal prosecutions. His 2011 investigation of the Austin City Council’s open meetings violations triggered a 20-month investigation by the Travis County attorney that resulted in the mayor and council members signing deferred prosecution agreements to avoid being charged, tried, and if convicted serving one to six months in jail and forfeiting their elective offices. See more on Ken on the About page. Email [email protected].
Related documents:
Bill Aleshire’s email to County Attorney Delia Garza, January 4, 2023 (1 page)
Bill Aleshire’s supplemental email to County Attorney Delia Garza, January 4, 2023 (1 page)
Bill Aleshire’s email to City Attorney Anne Morgan, January 4, 2023 (1 page)
Sworn Complaint filed by runoff candidate Linda Guerrero, January 4, 2023 (13 pages)
Sworn Complaint filed by City Council Member Mackenzie Kelly, January 4, 2023 (13 pages)
Hard to believe that city law department didn’t give Adler a heads-up on potential risks involved in his use of city resources for political purposes. Not likely the county attorney will criminally charge Adler but he may have to face possible actions by regulators as mentioned in the article.
Thanks.
Excellent reporting. This will be interesting to see how this plays out.
We will be following these complaints to see the results and publish additional reports when appropriate.
As to Tom’s comment that the county attorney is unlikely to criminally charge Adler, yes, that’s possible. As I learned many years ago, the discretionary powers of prosecutors are wide and deep. If the prosecutor with jurisdiction chooses not to press charges, there is nothing that can be done to force prosecution. One of the first investigative reports I published in The Austin Bulldog exposed a Georgetown, Texas, city council member for taking $13,600 in city funds to which she was not entitled. The Williamson County District Attorney declined to press charges. So she got away with it. https://theaustinbulldog.org/more-legal-problems-in-georgetown/
These days when mist of the public believes that officeholders act as if we were special, it is necessary to be upfront and follow the standards of public office. Otherwise, the trust in our elected officials will continue to erode.