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Ruling allows immediate fundraising for 2024 elections

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September 5, 2023 10:37 AM

Ruling allows immediate fundraising for 2024 elections

The City Council is scheduled to get a closed-door executive session briefing from the Law Department September 14^th to discuss legal fallout from Judge Robert Pitman’s August 30^th decision. The judge’s order declared unconstitutional an Austin City Code prohibition on candidates soliciting or accepting campaign contributions until a year before an election. (Case No. 1:21-cv-00271, Jennifer Virden v. City of Austin.) The item is not on the agenda for action. At issue is whether the City will appeal that decision.

The mayoral and council elections will be held November 5, 2024, according to the Texas Secretary of State’s website. Early voting by personal appearance in that election starts October 23, 2024.

If not for Pitman’s decision, fundraising by candidates running in 2024 would have been prohibited before November 5^th per City Code Section 2-2-7(B) and (G).

Two high-profile candidates—one who ran in recent elections and another who served three terms on the council—have expressed interest and are waiting for clarification of the legal start date for fundraising (more about them later).

Who’s eligible for the 2024 ballot?

The terms of six Austin City Council members will end December 31, 2024. Four of them are eligible to run for reelection:

Mayor Kirk Watson narrowly defeated Celia Israel in the December 2022 runoff. He won a two-year term that was set so that all mayoral elections, including this one, will be held during a presidential election year.

District 4 Council Member Jose “Chito” Vela won a special election in January 2022 to serve out the unexpired term of Greg Casar, who left office early to run for a seat in the U.S. House of Representatives.

District 2 Council Member Vanessa Fuentes and District 6 Council Member Mackenzie Kelly both won their first-term elections in 2020.

Two incumbents term-limited

Two current council members are term-limited. City Charter Article II Section 5, requires such candidates to step down. Or they may get on the ballot again by gathering signatures from at least 5 percent of the qualified voters within their districts. They are:

District 7 Council Member Leslie Pool. She was elected to a two-year term in 2014, then reelected to four-year terms in both 2016 and 2020. She did not respond to a Friday text message asking if she will seek another term.

District 10 Council Member Alison Alter. She won four-year terms in both 2016 and 2020. She did not respond to a Friday text message asking if she will seek another term.

Successful petition drives by previous term-limited council members were run by Kathie Tovo in 2018, and by Jackie Goodman, Beverly Griffith, and Daryl Slusher in 2002. All four succeeded in getting the ballot again.

The successful 2002 petition drives were all the more notable because at that time council members were elected at-large. They each needed more than 21,000 signatures to qualify for a place on the ballot.

Goodman and Slusher were reelected with thumping margins without a runoff. Griffith fell far behind her challenger, Betty Dunkerley, who garnered almost 42 percent of the votes in the general election to Griffith’s 29 percent. Griffith withdrew without a runoff.

Seriously interested potential candidates

Jennifer Virden—She is the plaintiff whose lawsuit blew a hole in the City Charter prohibition on raising funds until a full year before the election. Virden is eyeing two possible options. She could run for mayor again, meaning she would be running an uphill battle to unseat Watson. Or she could run for the District 10 seat that will be vacated by Alter, unless the incumbent gains ballot access by petition.

In a Friday email, Virden told the Bulldog, “I am waiting for clarification as to whether the fundraising window is open. I am considering both options.”

Alison Alter defeated Virden in 2020 by 656 votes out of the 24,304 votes cast in the December 15, 2020, runoff. That gave Alter a win with 51.35 percent of the votes.

Two years later in 2022, Virden ran for mayor. She plopped down a $300,000 loan to her campaign on the first day of the fundraising period. Despite Virden’s immense early edge in cash on hand, she managed to attract just $183,009 in contributions to support her campaign through the general election. Meanwhile Israel finished out the runoff by raising $706,055—slightly more than a third of Watson’s $1,978,354.

Virden failed to make the runoff. She placed a distant third with 18.40 percent of the general election votes. (Watson netted 34.90 percent in the general election, second to Celia Israel’s 40.00 percent. But Watson went on to edge Israel in the runoff by 942 votes out of the 114,188 cast.

After the election was over, Virden repaid herself $220,000 of that $300,000 loan.

Kathie Tovo—This former three-term Council Member also is considering the mayor’s race for 2024.

In a text message last Friday, Tovo told the Bulldog, “I haven’t made a decision yet about the mayor’s race but am mulling things over and will begin a period of more focused discernment here soon!”

Tovo was first elected to the council in June 2011 by knocking out incumbent Randi Shade in a runoff. That election happened in the wake of the Bulldog’s investigative report about the City Council’s institutionalized practice of violating the Texas Open Meetings Act. That practice involved the mayor and council members meeting with each other, one-on-one or two-on-one, behind closed doors before every council meeting. Travis County Attorney David Escamilla launched his investigation the day the story broke.

The Bulldog’s investigative report was published in January 2011. The Shade-Tovo runoff was held in June 2011. Like all others on the council at that time, Shade was under criminal investigation. Tovo breezed to an easy win with 56.26 percent.

When Tovo ran for reelection in 2014, that for the first election requiring council members to be elected to represent 10 geographic districts. When district lines were drawn by an independent redistricting commission, Tovo and Council Member Chris Riley landed in the same District 9. In the general election Tovo got 49.11 percent of the votes, Riley got 40.39 percent, and withdrew instead of participating in a runoff.

To get on the ballot again in 2018 Tovo had to petition. She and volunteers gathered at least the 3,516 signatures needed. She went on to get 52.73 percent of the votes cast in the general election, winning without a runoff against three challengers. That term was ended in 2022.

Like Virden, Tovo has very deep pockets. She loaned her campaign $61,807 for the 2011 campaign against Shade. Over the course of her 2014 reelection campaign she invested another $100,000 to bring her loan total to $161,807. The campaign finance report she filed January 13, 2023, shows that she is still carrying that debt.

Tovo appointed a treasurer in early February 2022 to indicate she would run for mayor that year. Ultimately she made no effort to raise funds and did not file for a place on the ballot.

This story was updated at 3:42pm September 5, 2023, to correct the erroneous statement that Kathie Tovo had not loaned money to her council campaigns. She is, in fact, still carrying total campaign debts of $161,807 from those campaigns.

This story was updated again 9:33am September 6, 2023, to correct the erroneous date for the 2024 election, which is November 5th, not November 7th.

Trust indicators: Ken Martin has been investigating local government agencies and officials in the Austin area since 1981. He founded The Austin Bulldog in 2009 and began publishing on the website in April 2010. You can reach him at [email protected].

Related documents:

Judge Robert Pitman’s Order in Jennifer Virden et al v. City of Austin, August 30, 2023 (18 pages)

Related Bulldog coverage:

Virden lawsuit overturns city campaign restriction, August 31, 2023

Virden lawsuit overturns city campaign restriction

Editor Ken Martin

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August 31, 2023 3:59 PM

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Virden lawsuit overturns city campaign restriction

U.S, District Judge Robert Pitman of the Western District of Texas yesterday declared unconstitutional the restriction found in the Austin City Code that restricts when a candidate can start raising funds for a mayoral or City Council race.

Pitman previous served as a magistrate judge for the same court and also is a former U.S. attorney for the Western District.

City Attorney Anne Morgan told the Bulldog, “We are disappointed in the ruling but will be talking to the council about it at the next meeting in September.” (No agenda has been posted for a regular council meeting in September.)

“It’s a pretty straightforward issue in this case,” Morgan said. “Campaign finance is about corruption or the appearance of corruption. Fortunately we didn’t have any,” Morgan said.

Asked if candidates can begin fundraising now for the mayoral or council elections of November 2024, instead of waiting until November 5^th, the date that would have sounded the starting bell, Morgan said, “I need to study the issue more.

“Candidates may want to talk to their lawyers to get answers.”

Litigation filed by Jennifer Virden

The decision came in response to a lawsuit filed against the City of Austin in March 2021 by Jennifer Virden. (Case No. 1:21-cv-00271-RP)

Virden, who ran unsuccessfully for the District 10 council seat in 2020 and for mayor in 2022, sued to remove the City Charter restriction that bars a candidate from soliciting or accepting campaign contributions more than a year before the general election.

Virden did not respond to a voice message requesting comment for this story.

City Code Section 2-2-7(B) and (G) overturned in Virden’s lawsuit originally prohibited fundraising from starting more than six months before an election. But as a result of a lawsuit filed by then-Council Member Don Zimmerman, who was elected in 2014 to represent District 6, the fundraising window was pried open to allow fundraising beginning a full year before the election.

Both Virden and Zimmerman are Republicans who are strongly opposed to these kinds of restrictions, which are intended to limit fundraising periods with the goal of reducing corruption or the appearance of corruption.

Concerns about such corruption is, in large part, based on the fact that incumbent mayors and council members, if free to raise money while in office and voting on matters of public business, could conceivably be swayed by contributions.

Non-incumbent candidates, on the other hand, view restrictions on fundraising periods as an incumbent-protection devices. Such restrictions prevent challengers from starting early to build a strong campaign to run against incumbents, who appear regularly on the City’s ATXN video network, attract constant media attention, and thus enjoy high name recognition.

As the Bulldog reported, Zimmerman filed suit in July 2015. That lawsuit (Case No. 1:15-cv-00628) sought not only to overturn the six-month restriction, which the litigation accomplished, but also to throw out limits on individual contributions, limits on total contributions a candidate could accept from sources other than natural persons eligible to vote, and the requirement for candidates to distribute the balance of contributions in excess of remaining expenses within 90 days after an election. The latter three objectives were defeated.

“These laws stifle core political activity and prevent candidates from raising the funds required to run effective campaigns, yet they fail to advance the only legitimate governmental interest in this area—the prevention of quid quo pro corruption or its appearance,” Zimmerman’s lawsuit argued.

Lawsuits and legislation unraveling Austin rules

“The opinion had to weigh on one hand the First Amendment rights to free speech in the form of campaign contributions vs. concerns about the integrity of decisions made by public officials influenced by money,” said attorney Bill Aleshire. (Disclosure: Aleshire represents the Bulldog in all public information requests and on our behalf has twice successfully sued the City of Austin for public information.)

“I think the decision is the beginning of cracks in the City of Austin’s approach to campaign finance and disclosures,” he said.

“While this decision was based on the unconstitutionality of restrictions on when candidates can collect campaign money, I do expect that if the ‘Death Star’ bill is finally upheld it may well result in ending restrictions on amounts that can be contributed. It would also obliterate the requirement that officeholders and candidates have to disclose major sources of income in their Statements of Financial Information required by City Code.

House Bill 2127, aka the “Death Star” bill, which becomes effective September 1^st, states “…the governing body of a municipality may adopt, enforce, or maintain an ordinance or rule only if the ordinance or rule is consistent with the laws of this state.”

Same attorneys, same court, same result

Both Virden and Zimmerman were represented by attorney Jerad Najvar of the Houston-based Navjar Law Firm as lead counsel.

Navjar did not immediately not return a voice message left this afternoon requesting comment.

The City of Austin was presented in both cases by outside counsel, Austin-based attorney Max “Renea” Hicks.

Hicks has not returned a voice message left this morning to request comment.

The City Council has authorized Hicks up to $181,750 for his representation in this case. Payments to Hicks through July 31^st totaled $148,496, with one invoice still pending, according to information obtained through a public information request.

Trust indicators: Ken Martin has been investigating local government agencies and officials in the Austin area since 1981. He founded The Austin Bulldog in 2009 and began publishing on the website in April 2010. You can reach him at [email protected].

Related documents:

Jennifer Virden v. City of Austin, Plaintiff’s Verified Complaint, March 25, 2021 (21 pages)

Judge Robert Pitman’s Order in Jennifer Virden et al v. City of Austin, August 30, 2023 (18 pages)

Appraisal district headed for big management shakeup

Editor Ken Martin

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August 30, 2023 2:31 PM

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Appraisal district headed for big management shakeup

Chief Appraiser Marya Crigler has submitted her notice of intent to retire effective in early 2024. She will be ending a career spanning 33 years with Travis Central Appraisal District that began right after graduating from the University of Texas. She currently earns $270,000 a year. Consultants and a committee of TCAD’s board have started working to find Crigler’s successor.

Crigler’s departure isn’t the only big change that will impact the agency’s management next year.

Senate Bill 2 mandates election of three members of its nine-member board of directors in the general election of May 2024.

For the first time since appraisal districts were created by legislation passed in 1979, the citizens of Travis County will be able to directly elect some of the voting members who oversee the appraisal district. The five voting members appointed by taxing entities will constitute a majority.

TCAD’s 10-member board currently consists of nine members appointed by the taxing entities the agency serves. By law the ninth member is the Travis County tax assessor-collector, who serves as a permanent ex-officio non-voting member, and that will continue under SB 2.

The election mandate is just one tiny aspect of the far-reaching legislation authored by Paul Bettencourt (R-Houston) and signed into law July 22^nd by Governor Greg Abbott.

The bill calls for major changes aimed at providing property tax relief through the school finance system, property tax exemptions, limitations on appraisals and taxes, and much more. The fiscal note for the bill states it will cost $12.7 billion for the biennium ending August 31, 2025.

TCAD was scheduled to hold a webinar today addressing the senate bill’s impact for the benefit of the taxing entities the agency serves. The Bulldog’s request to watch and cover the webinar was rebuffed because it is “not open to the public.”

TCAD Board Member Deborah Cartwright, who was appointed by the Austin Independent School District, said, “This webinar is important for all of us to participate in, to be aware of how operate next year.” She said the change in the board’s composition “is pretty significant. We know it impacts all jurisdictions.”

Election timing

To be eligible to run for one of those three elected positions, a person must be a resident of the district for at least two years immediately preceding the date the person takes office, which is July 1, 2024.

Applications for a place on the ballot must be filed with the Travis County judge, accompanied by a filing fee of $400 or a petition containing 500 signatures in lieu of the filing fee.

“The secretary of state shall adopt rules as necessary to implement this election,” SB 2 states.

The five non-elected board members will be appointed by the incorporated cities and town, school districts, and junior college districts. “Voting will be determined by the percent of (TCAD’s) budget each entity contributes,” Communications Director Cynthia Martinez, said in an email to answer the Bulldog‘s question. “I can’t tell you for sure how that will impact our smaller entities contrasted with our larger entities. Those specifics will become clearer as the Board determines the process over the next few months.”

The five members of the board to be appointed by the governing bodies of the incorporated cities and towns, school districts, and junior college districts will serve staggered four-year terms beginning January 1 of every other even-numbered year.

The three elected members of the board will serve staggered terms beginning January 1 of every other odd-numbered year.

Chief Appraiser Crigler told the Board of Directors at the August 24^th meeting that TCAD has increased its 2024 budget by the $1.7 million estimated cost of conducting the May 2024 election and possible runoff. That bumped the 2024 budget to $29,884,516, an increase of $4,200,065 over the 2023 budget. The new budget includes funding for 158 employees, up from 153 in 2023.

If the elections ultimately cost less than estimated, then TCAD plans to reduce the taxing entities’ fourth-quarter payments in 2024, Crigler said.

Appraisal district budgets are supported solely by payments from local taxing units served by the district. After approval by the TCAD board, the 2024 budget takes effect January 1^stautomatically unless disapproved by the governing bodies of the county, school districts, cities and towns it serves.

Alternate certification made by estimate

TCAD has now missed the statutory deadline for certifying the appraisal rolls in five of the last 10 years: 2014, 2015, 2019, 2020, and 2023.

TCAD’s Communications Director Martinez responded to say, “We did not miss the statutory deadline. The Chief Appraiser certified using an estimate, which is allowed by law.”

A chart published in the Bulldog’s story of December 12, 2013, provided a detailed analysis of certification performance from 2010 through 2021.

Tax rolls are certified based on the settled values of a threshold percentage of the total value of all properties that TCAD appraises. The rolls can be certified if 90 percent of values have been settled by July 20^th, or if 95 percent of values have been settled by August 30^th.

“We think we will hit 95 percent by August 30^th,” Crigler told the board. “We dealt with most commercial properties and agents upfront and individual property owners on the back end. We’ve scheduled hearings through the month of September. We’ll take a week off for Labor Day and should completely finish by the end of September or the first week in October.”

The certified roll is critical for the taxing entities. The governing boards of those entities use the certified value to calculate tax rates when approving budgets for the next fiscal year. When the appraisal rolls cannot be certified on time, as happened again this year, TCAD provides an estimate that can be used for calculating the tax rates.

Some of the factors that may have contributed to the missed deadline are:

Record number of protests—A record-high 166,757 valuation protests were filed in 2023—a 20 percent increase over the 141,360 protests filed in 2022.

ARB strength reduced—As the Bulldog reported December 22^nd, TCAD budgeted for 74 members to be appointed to the ARB in 2023. That’s just 37 percent of the 200 budgeted for the 2022 protest season. So the number of people available to conduct formal hearings with property owners and agents has been greatly reduced.

ARB attendance sub-par—Although 73 people have been appointed to serve on the ARB, in actual practice the ARB is operating with 49 full-time equivalents, Travis ARB Chair Craig Phifer told the board. “We’re coping, we’re using single-member panels when people agree to it (instead of the usual three-member panels that conduct hearings) and a lot do.

Later, by email, Phifer told the Bulldog, “The limited number of board members really hasn’t played a role in this (late certification). The TARB has been meeting the needs so far to do our part, and our efficiency has improved over the past three years. We have several panel chairs that have heard over 100 hearings in a day. Although that is not routine it has happened on several occasions with several different panel chairs.

“The ability to schedule enough hearings was the largest (factor). So not having enough members to serve daily was a consideration while scheduling.”

Hearing no-shows—“We have an 85 percent no-show rate,” Phifer told the board members.

Crigler added, “We always get a lot of no-shows. They want to get the evidence and don’t intend to show up, but then they don’t cancel (their hearing appointments).” The evidence is confidential and an owner or agent can get it only if they protest. “They can withdraw their protest online or ask to reschedule online.”

Via email, Phifer added, “TCAD is working the front door (when people come in for their hearings) reminding property owners of their informal settlement offer and asking one last time if they would like to accept the offer to settle informally. And the same is happening prior to the virtual hearing as well. This contributes to the no-show rate as well.”

2024 reappraisal plan amended

Deputy Chief Appraiser Leana Mann briefed the board concerning the plan to reappraise the value of properties within Travis County in the coming year.

The plan anticipates having 485,290 property accounts, of which 444,625 are real estate and the rest are business personal property. That projection equates to adding 7,667 accounts for an increase of 1.58 percent.

The plan states that the law only requires reappraisal of all property within its boundaries every three years. But TCAD but will undertake a targeted reappraisal approach to better achieve the goal of appraising all property at fair market value as of January 1^st. Complete details are available in the agenda and meeting materials PDF (pages 105-114).

Crigler said, “In light of the decline in residential market trending down, we recommend doing a full reappraisal in 2024. We want to be sure values are reflective of the downturn in the market.”

The plan was approved by the board’s unanimous vote.

New personnel policy with longevity pay

The board approved a new personnel policy that includes a dress code permitting employees to wear jeans with their agency-provided wash-and-wear knit shirts that have the TCAD logo.

The policy updates per-diem rates, rules for remote work via telecommunications, breastfeeding, and standardizing timeframes for employee evaluations, which will be done more frequently than the year-end reviews previously conducted.

Crigler said the policy adds longevity pay like other appraisal districts offer. Employees will be paid annually on the anniversary date of their employment, the equivalent of an additional $5 per month after three years of service. That equates to a bonus of $180 on the third anniversary and an additional $60 per year for every year thereafter.

Board Chair James Valadez, appointed to the board by Travis County, said he liked the longevity pay proposal “because we’re struggling to retain employees.”

Board member Cartwright stipulated that the chief appraiser, who works under an annual contract, will not be eligible for longevity pay.

Crigler said managers also will get the longevity pay “to recognize and retain them, because they’re important.”

This story was updated at 4:21pm August 31, 2023, to correct the nature of Criger’s letter of intention to retire (not resign), that TCAD’s board consists of 10 members (not nine as originally stated), and that the chief appraiser certified using an estimate as allowed by law.

Trust indicators: Ken Martin has been covering local government and politics in the Austin area since 1981 and investigating and reporting on Travis Central Appraisal District since 2011. Email [email protected].

Related documents:

Agendas for TCAD Board of Director’s meeting, including all meeting materials, including Senate Bill 2 and overview by attorneys Perdue Brandon (PDF pages 141-204) August 24, 2023 (204 pages)

Marya Crigler’s notice of intent to retire, August 3, 2023 (1 page)

Press release concerning Crigler’s retirement, August 4, 2023 (2 pages)

Senate Bill 2 Analysis by Senate Research Center, July 17, 2023 (18 pages)

Senate Bill 2 Fiscal Note by Legislative Budget Board, July 12, 2023 (2 pages)

Related Bulldog coverage:

Appraisal district proposes 2024 budget bump, June 1, 2023

Good news: No big jump in 2023 property values, February 21, 2023

Travis Appraisal Review Board members pared, December 22, 2022

Property value protests set new records, June 9, 2022

Appraised home values jump more than 50 percent, April 19, 2022

Velasquez third council member sanctioned for ethics violations

Editor Ken Martin

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August 26, 2023 4:22 PM

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Velasquez third council member sanctioned for ethics violations

After two hours of testimony and deliberation, the City’s Ethics Review Commission voted 6-2 last Wednesday evening to sanction Council Member Jose Velasquez for multiple ethical violations involving failure to list sources of income and a board membership in his sworn financial filings.

The vote on Velasquez came as part of a preliminary hearing in response to a sworn complaint filed by Daniel Llanes, chair of the Govalle/Johnston Neighborhood Plan Contact Team.

Council Members Natasha Harper-Madison and Paige Ellis have previously been sanctioned by the commission, but for different reasons (more about that later).

Austin City Code requires candidates and council members to file sworn Statements of Financial Information (SFI) with the City Clerk during election campaigns and while in office. These statements cover a person’s sources of income, membership in boards, debts, and numerous other details about their activities during the previous calendar year.

SFIs are filed electronically. Immediately above the signature line the form states, “Under penalty of perjury, I swear or affirm that the preceding Financial Statement of Information is in all things true and correct and fully shows all information pursuant to City Code Section 2-7-72 for the reporting period indicated.”

Velasquez’s sworn statements failed to disclose that more than 10 percent of his gross income in 2021 and 2022 came from the East Austin Conservancy and, further, that he was on that organization’s board of directors in 2021.

The ethics complaint was filed July 14^th.

Five days later Velasquez filed corrected SFIs covering his activities in 2021 and 2022. These disclosed his board membership with the East Austin Conservancy, and his income from that organization in the amount of $50,000 to $75,000. In addition, his corrected SFI also included previously undisclosed income from the Austin Independent School District, also in the amount of $50,000 to $75,000.

The hearing

Velasquez was not present at the preliminary hearing. He was represented by attorney Ross Fischer, who on August 11^th submitted his client’s written response to the complaint.

Fisher’s letter sought to invoke provisions of recently passed House Bill 2127, aka the “Death Star” Bill). That law, which becomes effective September 1^st, states “…the governing body of a municipality may adopt, enforce, or maintain an ordinance or rule only if the ordinance or rule is consistent with the laws of this state.”

In other words, Fischer contended, because City Code mandates disclosures not required by state law when filing Personal Financial Statements, any action taken by the Ethics Review Commission concerning SFI omissions after September 1^st would be unenforceable.

That argument turned out to be moot, as the matter was decided nine days before the legislation takes effect.

Fischer admitted his client’s errors. That gave commissioners the option to either schedule a final hearing later (and possibly face entanglement with the new legislation) or to immediately consider sanctions. They chose the latter.

Before discussing and deciding the appropriate sanction, they gave Fischer and attorney Bill Aleshire, who represented complainant Llanes, three minutes each to argue their positions. (Disclosure: Aleshire represents the Bulldog in all public information requests and on our behalf has twice successfully sued the City of Austin for public information.)

Aleshire told the commissioners that a Letter of Notification was not sufficient punishment for three violations, two of which involved unreported income. A Letter of Admonition seems appropriate. “My client just wants to see the council member held accountable for a violation. Treat him like you would any employee.”

Fischer argued for a Letter of Notification. “Transparency was not harmed or undermined. His relationship with East Austin Conservancy was known for years.” He said Velasquez later sought legal advice and disclosed that relationship (in connection with the zoning case). “I believe he should receive a Letter of Notification.”

In the ensuing discussion, it came out that the complainant, a longtime East Austin activist who had engaged in discussions with the council member over a zoning case—contrary to Fischer’s assertion—was not aware of Velasquez’s position on the East Austin Conservancy or that he was paid by that organization.

The motion and vote

After considerably more discussion, Commissioner Mary Kahle, who was appointed by Council Member Alison Alter, moved to issue a Letter of Admonition. “I think transparency is incredibly important, she said. “It troubles me this occurred over two years and involves multiple violations,” adding that it seems unlikely that Velasquez would inadvertently not list his board membership on the East Austin Conservancy.

Commissioner Michael Lovins, an appointee of Council Member Mackenzie Kelly, said, “I support the motion. We have three separate violations. Not disclosing membership on the board is weird. I’m troubled that someone who wants to have this power can’t understand (what’s required).”

Commissioner Sidney Williams, appointed by Council Member Harper-Madison, said, “The bigger issue is the level of diligence we expect all candidates should apply. I agree that transparency is important and this candidate did not live up to that level of transparency.”

The vote to issue a Letter of Admonition was supported by Commissioners Luis Soberon, appointed by Council Member Jose “Chito” Vela; Kahle; Amy Casto, appointed by Council Member Ryan Alter; Haksoon Andrea Low, appointed by Council Member Zohaib “Zo” Qadri; Lovins; and Williams.

Voting no were Commissioners Ed Espinoza, appointed by Mayor Kirk Watson; and William Ross Pumphrey, appointed by Council Member Paige Elllis.

Velasquez’s appointee to the commission, Alysa Nunez, recused herself from discussion and voting on this matter.

Perception of Espinoza’s conflict

Espinoza was appointed to be a member of the Ethics Review Commission effective July 20, 2023. The fact that he is married to Council Member Ellis raised concerns about the appointment and his ability to impartially consider the complaint against his wife’s fellow Council Member Velasquez. Those concerns went unheeded.

The Bulldog emailed a question to him a week earlier to ask if he planned to participate in the Velasquez hearing. A day after the hearing Espinoza responded by email, stating:

“Thank you for your email. I could not respond sooner as I was advised not to discuss matters currently before the commission. Now that the matter is settled, I offer the following statement. This is the only statement I will offer.

“The question of recusal assumes that CM Velasquez expects favorability, whereas I assume that he—and anyone coming before the commission—expects fairness, and that’s exactly what I intend to offer.

“I believe it was appropriate to move forward with sanctions, which is why I seconded the motion to take action, though I also believe that corrective action taken by CM Velasquez was worth consideration.

“My position is that a letter of notification would be appropriate given that this was a preliminary hearing in which the respondent was not required to attend, and that a fair consideration of a letter of admonition should be reserved for an actual hearing, where the respondent would be present to defend himself, and with additional evidence to review.

“The matter is now settled.”

Aleshire’s take on Espinoza

At the Bulldog’s request Aleshire emailed a response to Espinoza’s statement:

“Mr. Espinoza seems blind to (and did not address in his comment to you) the conflict of interest upon which we requested his recusal. Because he is married to a Council Member (Ellis) who must get along with her colleague Velasquez, Espinoza’s participation in the hearing raises issue of whether he was addressing the issue objectively without outside considerations.

“His vote to reduce the sanction against Velasquez can be viewed as doing what was best for his wife’s relationship with Velasquez. The situation left the appearance that his vote was influenced by his marriage to the Council Member. It was a dilemma for Mr. Espinoza that would have been avoided only by his recusal. Since that was his first meeting of the ERC, perhaps, over time, he will grow into higher standards for what constitutes a conflict of interest or the appearance of a conflict of interest.

“As far as his vote to support finding that the violation occurred, he did so only after Velasquez’s attorney formally admitted that the violation occurred, after initially trying to defend it.”

Other council members sanctioned

Velasquez is the third current member of the Austin City Council to have been sanctioned by the Ethics Review Commission.

Natasha Harper-Madison was issued a Letter of Admonition December 18, 2019, under City Code Section 2-48(C)(2) for violations of:

City Code Section 2-2-7(A), which deals with the designated period for election fundraising,

City Code Section 2-2-7(F), which deals with soliciting or accepting contributions following an election, and

Article III, Section 8 of the City Charter, which deals with the responsibility of candidates to prevent campaign contribution violations.

The complaint alleged that she violated these provisions by accepting campaign contributions outside the designated campaign period for the 2018 election. The minutes state that Commission determined, and Harper-Madison agreed, that the violations occurred.

The Commission recognized that the violations may have been unintentional and directed her to be mindful going forward. The Commission recommended that she file corrected campaign finance reports for 2019.

Paige Ellis was issued a Letter of Notification effective December 14, 2022, for violation of:

Article III, Section 8 of the City Charter, dealing with limits on campaign contributions and expenditures, by accepting contributions over the contribution limit

Ellis agreed during a preliminary hearing that contributions over the allowable limit were accepted and not refunded during the same reporting period. The Commission advised that in the future refunds should be made in the same reporting period in which contributions that exceed the limit are received.

The Commission found no reasonable grounds to believe that a second alleged violation had occurred pertaining to Austin City Code Section 2-2-21, which deals with additional information required on all campaign finance reports filed with the City, by failing to include the occupation and/or employer for certain contributors.

It should be noted that when Ellis appeared before the Ethics Review Commission concerning this complaint December 14, 2022, the minutes of that meeting state that she and her “manager” Edward Espinoza appeared in person.

The Bulldog’s research located a marriage certificate in the Travis County Clerk’s online system showing that Ellis and Espinoza were married July 10, 2022, five months before their appearance in the preliminary hearing.

Commission chair pleased with accomplishments

Luis Soberon, who chairs the Ethics Review Commission, researched minutes going back through 2018 and located several other complaints against the City’s elected officials.

In the same December 2019 meeting in which sanctions for Council Member Harper-Madison were approved (see above), the commission voted to confirm the chair’s initial determination that the commission lacked jurisdiction to consider a complaint against Council Member Jimmy Flannigan under City Code Section 2-1-24, concerning conflict of interest and recusal.

However, the complainant, Mackenzie Kelly, got her revenge a year later by defeating Flannigan in the December 15, 2020, runoff to win the District 6 council seat.

In November 2020 the commission held a preliminary hearing on a complaint against Council Member Delia Garza filed by a city auditor for alleged violations of ethics and financial disclosure under Chapter 2-7, as well as standards of conduct. under Section 2-7-62. Two commissioners recused themselves from participating in the hearing and a motion to find reasonable grounds exist to find a violation and proceed to a final hearing fell one vote short of the six required.

Harper-Madison was on the commission’s agenda again in May 2021 for a preliminary hearing on a complaint alleging a violation of Section 2-7-62(B) involving ethics and financial disclosure. A motion to proceed to a final hearing fell short and the complaint was dismissed.

Mayor Steve Adler drew a complaint over allegations of violating Chapter 2-7 for ethics and financial disclosure and Section 2-7-75 sworn financial disclosure statements. After concluding a preliminary hearing in March 2022, the commission voted to dismiss the complaint “because there were not reasonable grounds to believe a violation within the commission’s jurisdiction had occurred.”

“In my experience, members of the Ethics Review Commission with whom I’ve served do an exceptional job in considering the facts and law underlying each complaint without regard to who the parties might be,” Soberon said.

This story was updated at 12:58pm September 5, 2023, to link the Letter of Admonition issued to Council Member Jose Velasquez and the Order on the Preliminary Hearing held regarding the complaint against him.

Trust indicators: Ken Martin has been investigating local government agencies and officials in the Austin area since 1981. He founded The Austin Bulldog in 2009 and began publishing on the website in April 2010. You can reach him at [email protected].

Related documents:

Council Member Jose Velasquez sworn Affidavit declaring his income from the East Austin Conservancy in 2022, June 1, 2023 (2 pages)

Council Member Jose Velasquez corrected Statement of Financial Information covering his activities in 2021, filed July 19, 2023 (8 pages)

Council Member Jose Velasquez corrected Statement of Financial Information covering his activities in 2022, filed July 19, 2023 (8 pages)

Council Member Natasha Harper-Madison’s Letter of Admonition, December 18, 2019 (1 page)

Council Member Paige Ellis’s Letter of Notification, December 20, 2022 (1 page)

Daniel Llanes sworn complaint against Council Member Jose Velasquez, July 14, 2023 (32 pages, including Statements of Financial Information originally filed by Velasquez for 2021 and 2022)

Letter of Admonition for Council Member Jose Velasquez, August 31, 2023 (1 page)

Minutes of Ethics Review Commission meeting in which Council Member Natasha Harper-Madison was sanctioned, December 11, 2019

Minutes of Ethics Review Commission meeting in which Council Member Paige Ellis was sanctioned, December 14, 2022 (4 pages)

Order of Preliminary Hearing, August 23, 2023 (3 pages)

Ross Fischer letter to Ethics Review Commission, August 11, 2023 (4 pages)

Related video:

Ethics Review Commission meeting, August 23, 2023

Related Bulldog coverage:

Velasquez hit with ethics complaint, July 15, 2023

Battle raging over Zilker Park’s future triggers skirmish over commissioners’ conduct, June 12, 2023

Auditor faults Austin’s public information process

Editor Ken Martin

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August 23, 2023 4:00 PM

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Auditor faults Austin’s public information process

The City Council’s Audit and Finance Committee spent less than 20 minutes this morning listening to and discussing a presentation by the City’s Audit Manager Patrick Johnson.

Council Committee members hearing the briefing were Chair Alison Alter, Vice Chair Leslie Pool, Mackenzie Kelly, and Ryan Alter. Vanessa Fuentes was absent.

Johnson presented a brisk overview of an 18-page draft audit of City’s responses to public information requests (PIRs), which concludes there’s a need “to adopt a more proactive and consistent approach to providing public information.”

The audit objective was to determine if the City follows open records laws and provides information in a timely and efficient manner.

Deputy City Attorney Deborah Thomas said the staff is in agreement with recommendations and is forming a team to address the issues raised in the audit.

Basics of the City’s process

The Texas Public Information Act, aka Government Code Chapter 552, establishes the public’s right to obtain information about its government agencies, but also requires that some information be protected from release.

Members of the public can request public information from the City of Austin via email to [email protected], hand delivery, or through a website that uses GovQA software and accommodates requests to either the Austin Police Department or all other City departments (Cityside).

Each department has one or more employees designated as single points of contact (SPOCs) who receive requests, then collect, redact, and release relevant information to the public through the GovQA portal.

Requestors are sent an email notice when information is available, and must log in with an email and password (or create an account if they’re first-time users) to download it.

Overview of findings

The audit identified a need for more consistent training of the employees who process requests and better tools for redacting information that by law is prohibited from release.

The audit states the City is not proactive in posting fulfilled PIRs, frequently requested information, or information related to incidents of public intererst. Doing so would enhance the public’s access to information and reduce the need to file PIRs.

The audit reviewed public information websites for 10 other cities and found that 60 percent of those posted PIR-related information online. The City of Austin is not using a “trending topics” page for that purpose that’s part of the GovQA software system.

The City maintains an Open Data Portal but a survey of previous requestors showed that only 40 percent were satisfied with the amount of information posted. Requestors noted that information was often not what they were looking for or was outdated.

Online information about the PIR process is available only in English, despite the fact that 31 percent of residents speak a language other than English at home, and more than 11 percent speak English less than very well.

PIRs must be filed in writing but how a request is written can greatly affect the City’s response. The audit states the City can provide better transparency by engaging with requestors and helping them write better PIRs.

Between 2018 and 2022, the APD received 82,134 PIRs, while all other city departments (called “Cityside”) received 39,278 PIRs. The audit states, “Based on current staff, the Cityside allocates about 20 times more staff to process about half the requests as compared to APD.”

Searches for PIRs asking for electronic records depend on key words, which tools are used to find results, and who does the search. The City does not have consistent guidance on this.

When it comes to redacting information, 66 percent of SPOCs reported the need for additional training to identify the exceptions that require withholding information from release. APD staff members do not have the specialized tools needed to redact information from audio and video files.

Audit recommendations and implementation plans

The audit provided four recommendations and management agreed to each one.

Centralize management of all City public information requests to improve consistency of the city’s approach. By October 2023, a Joint Leadership Team will provide a single set of operational protocols, guidance, and training.

Devote adequate resources including staff and tools to fulfill public information requests promptly in accordance with applicable laws. A new text redaction tool has been acquired and tested, and will be provided in September. A review of all processes will be completed in January 2024.

Address internal processes by creating a standard operating procedure (SOP), train staff in using the SOP, monitor department performance, develop a plan to eliminate the APD backlog, and post the SOP publicly. These actions are to be completed between October 2023 and June 2024.

Manage public information to improve the user experience with the City’s public information request website, provide tips on how to write a request, and include a tool to translate information about the process into multiple languages. Explore the use of chatbot and links to data sets. Identify and post frequently requested information on trending topics. This is to be implemented by June 2024.

This article was updated 9:15am August 24, 2023, to correct the statute citation for the Texas Public Information Act and Deborah Thomas’s title: she is the deputy city attorney.

Trust indicators: Ken Martin has filed more than a thousand public information requests since founding the Bulldog in 2009—most of them with the City of Austin. He was represented by attorney Bill Aleshire in successfully suing the City of Austin twice in 2011 to obtain public information being improperly withheld. One of those lawsuits went to the Third Court of Appeals and resulted in a decision that personal email addresses that public officials use for public business cannot be withheld (redacted) when releasing those messages in response to a public information request (Case No. 03-13-00604-CV).

You can reach him at [email protected].

Related documents:

Office of the City Auditor’s Audit Report on Public Information Responses, August 2023 (18 pages)

Case No. 03-13-00604-CV, Texas Court of Appeals, Third District, at Austin (16 pages)

Judgment Rendered by Third Court of Appeals April 8, 2016 (1 page)

Related Bulldog coverage:

Big win for public’s right to know, April 11, 2016

Ruling allows immediate fundraising for 2024 elections

Who’s eligible for the 2024 ballot?

Two incumbents term-limited

Seriously interested potential candidates

Virden lawsuit overturns city campaign restriction

Litigation filed by Jennifer Virden

Lawsuits and legislation unraveling Austin rules

Same attorneys, same court, same result

Appraisal district headed for big management shakeup

Election timing

Alternate certification made by estimate

2024 reappraisal plan amended

New personnel policy with longevity pay

Velasquez third council member sanctioned for ethics violations

The hearing

The motion and vote

Perception of Espinoza’s conflict

Aleshire’s take on Espinoza

Other council members sanctioned

Commission chair pleased with accomplishments

Auditor faults Austin’s public information process

Basics of the City’s process

Overview of findings

Audit recommendations and implementation plans

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