Texas Ethics Commission took more than two years to settle the matter
An ethics complaint against then District 6 Council Member Don Zimmerman was resolved by the Texas Ethics Commission June 12, 2017. It took the agency 28 months to get the job done.
The complaint filed February 5, 2015, alleged that Zimmerman illegally used campaign funds to pay his wife $2,000 for work she did for his 2014 council campaign.
The Texas Ethics Commission completed its consideration of the sworn complaint by entering into an Assurance of Voluntary Compliance with Zimmerman. The document states that Zimmerman acknowledges the prohibition against such expenditures, and he consented to forego adversarial evidentiary hearings and formal adjudication by the Commission.
Zimmerman escaped being fined for the infraction, common in similar cases such as In the Matter of James C. Doyal SC-31108180, because he had personally loaned $20,000 to his campaign and considered the $2,000 payment to his spouse as “partial reimbursement” for the loan.
In essence the Commission allowed Zimmerman to reclassify the campaign funds paid to his wife for her personal services as a partial repayment of a loan that he personally made to his campaign.
In a telephone interview today, Zimmerman told The Austin Bulldog that he had not been aware of the prohibition against paying his wife from campaign fund. This despite the fact that the City Clerk provides copies of applicable regulations to all candidates.
“If I had shacked up with Jennifer, then I could pay her while living in sin. That looks like marriage discrimination,” he said. “Once it was pointed out that the payment was improper, I said, “Fine, I’ll credit that payment against the loan.’ ”
Complainant dismayed
The complaint against Zimmerman was filed by Austin attorney Bill Aleshire. Aleshire, a former Travis County judge and tax assessor-collector, also filed a criminal complaint with the Travis County Attorney’s Office.
He is not happy with the way the Commission handled the matter.
“I think Zimmerman’s use of campaign funds to pay his wife was a flagrant violation of long-standing ethics rules,” Aleshire said.
“Clearly, after he got caught—and even rubbed it in with press statements that he wished he’d paid his wife even more—it does not seem just or right that he could so blatantly redefine the payment as a loan repayment. A loan repayment would have been made to himself, and even if it had been made payable to his wife, it would not have been labeled as ‘campaign office work and field work’ (as it was in Zimmerman’s campaign finance report filed January 15, 2015).
“From an ethics enforcement standpoint, he got away with a flagrant violation of campaign and ethics laws.
“From a political standpoint, his defeat at the polls helped balance the scales,” Aleshire concluded, referring to Zimmerman’s 2016 loss in his bid to retain the District 6 council seat he won in 2014.
(Disclosure: Aleshire represented The Austin Bulldog in two lawsuits filed in 2011 against the City of Austin for its violations of the Texas Public Information Act. He currently represents the Bulldog to intervene in County Attorney David Escamilla v. Attorney General Ken Paxton, in which the county attorney seeks to close the courtroom and permanently seal all records to be considered in the hearing.)
County attorney ‘not surprised’ at outcome
County Attorney David Escamilla said he had pretty much expected this result.
“I’m not surprised by the resolution of the Texas Ethics Commission,” Escamilla said in a phone interview June 23.
He said that his office had “hired Tim Sorrells for the express purpose of this investigation” of Aleshire’s criminal complaint against Zimmerman.
Sorrells was with the Texas Ethics Commission from January 2001 until the fall of 2013, finishing his service there as general counsel.
The key element in the case was that in the Campaign Finance Report that Zimmerman filed immediately after the one showing he had paid his wife, the amount of campaign debt to himself was reduced from $20,000 to $18,000. The reduction in the loan amount was $2,000, identical to the amount he had paid his wife. However the report provided no reason for the loan reduction.
“When we saw the subsequent campaign finance report filing, we decided it would be extremely difficult to prove intent,” Escamilla said.
Timing of settlement politically helpful
Zimmerman signed the Assurance of Voluntary Compliance June 7, 2017, while in a tight race to be the next chairman of the Travis County Republican Party. That election was held June 13, just six days after he signed it.
The Austin American-Statesman reported on election night that Matt Mackowiak, a political strategist, edged out Zimmerman on a vote of 46-38.
Mackowiak had been serving as the party’s executive vice chair after taking over the reins when chairman James Dickey moved up to be the state party chair.
Bulldog story exposed payment
Zimmerman’s illegal payment was discovered during The Austin Bulldog’s review of expenditures listed in all 61 Campaign Finance Reports that were filed by 11 winning candidates for mayor and council elected in 2014. Our story, Zimmerman Paid Wife For Campaign, was published February 3, 2015.
Both candidates and officeholders are prohibited from using political contributions to pay for personal services rendered by their spouse or dependent children. A warning about these expenditures is included in The Campaign Guide for Candidates and Officeholders Who File With Local Filing Authorities, which is published by the Texas Ethics Commission. The City of Austin provides this guide to all candidates running for office.
Such expenditures are a violation of Election Code Section 253.041(a)(2). A person who commits this expense commits a Class A misdemeanor, according to Section 253.041(c).
If adjudged guilty, a Class A misdemeanor offense is punishable by a fine not to exceed $4,000, confinement in jail not to exceed one year, or both the fine and confinement, per Penal Code Section 12.21.
Commission unusually slow in resolving complaint
The Austin Bulldog contacted Ian Steusloff, general counsel for the Texas Ethics Commission, to discuss the glacial pace of the agency’s investigation of Aleshire’s complaint.
He said confidentiality rules prevent him from publicly discussing a particular case unless an order is issued by the Commission or it becomes part of the public record in a judicial proceeding.
“Every complaint is different and some take longer than others,” Steusloff said. The factors affecting how long it takes include the circumstances surrounding the complaint, the type of complaint, its complexity, the amount of investigation required, the time it takes to go forward, and efforts made to reach a resolution with the accused.
“Most complaints filed with commission are resolved within six months,” he said.
As to why Zimmerman’s case was resolved with an Assurance of Voluntary Compliance, and not an Order and Agreed Resolution, as in the James C. Doyal case, Steusloff—speaking generally and not about those particular cases—said both methods are used by the Commission to resolve complaints. The Commission’s job is to “resolve complaints and settle to the extent possible,” he said.
“The main difference between an (Order and Agreed Resolution and an) Assurance of Voluntary Compliance is (the latter is) not a determination by the commission that there is a violation and it is not a public order,” he said.
For the Commission’s purposes, the Assurance of Voluntary Compliance remains confidential. The Austin Bulldog obtained a copy of Zimmerman’s from the complainant, Aleshire.
Orders and Agreed Resolutions, on the other hand, are public and published on the agency’s website, Steusloff said.
Zimmerman wants the prohibition repealed
Resolving the complaint left Zimmerman with the desire to change the law going forward.
“This marriage discrimination needs to be repealed,” he said. “It’s not fair.”
This report was made possible by contributions to The Austin Bulldog, which operates as a 501(c)(3) nonprofit to provide investigative reporting in the public interest. You can help sustain The Austin Bulldog’s reporting by making a tax-deductible contribution.
Links:
Assurance of Voluntary Compliance Issued June 12, 2017 (3 pages)
Don Zimmerman’s Campaign Finance Report of January 15, 2015 (23 pages. the illegal expenditure to Mrs. Jennifer Zimmerman appears on the last page.)
In the Matter of James C. Doyal SC-31108180 (17 pages)
Review of City Council Campaign Finance Reports for Prohibited Expenditures
Related Bulldog coverage:
Zimmerman Paid Wife for Campaign: Using campaign funds to pay a candidate’s spouse is prohibited by law, and is a Class A misdemeanor, February 3, 2015
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