Pool campaign will “win” Austin’s Fair Campaign Chapter “Lottery” Pt 1

Pool campaign will “win” Austin’s Fair Campaign Chapter “Lottery” Pt 1

Austin’s city council races are set for runoff elections in districts 1, 3, 4, 6, 7, 8, 9, and 10.  Of the campaigns competing in those districts, only Leslie Pool’s campaign chose to follow Austin’s poorly understood Fair Campaign Chapter election rules and also filed the paperwork within the required time limits.

Pool, as the only runoff candidate that signed a Fair Campaign Chapter campaign contract within the required time limit after becoming a “candidate” according to the Texas Election Code, will receive all of the money in the fund to use in her runoff race against Jeb Boyt in District 7.

When I last checked the fund, a few months ago, the amount was over $80,000, if I remember correctly. I called the City Clerk, but they didn’t know what I was talking about, so I’ll have to track down the exact amount and update this article “soon”.

UPDATE 1 – 10/6/2014 – 9:26pm – [ I have not been able to find an up-to-date number from Austin Finance Online’s website. However, I was able to get the value of the Fair Campaign fund at the end of fiscal year 2013, which was $52,000. It tends to grow about $22,000 to $24,000 a year. I am not certain if all funds are deposited immediately or if there is some delay, but I would guess that the fund will come in somewhere between $65,000 and $75,000. That’s a bit less than the $80,000 I “remembered”, but still no small chunk of change — and perhaps my “memory” was correct and it will come in over $80K after all. Tomorrow I will attempt to get an exact amount from the city. ]

UPDATE 2 – [ this update proved to be too large to squeeze in here in a reasonable manner, so it lives as its own post, see http://electionaustin.com/pool-campaign-part-deux/ ]

UPDATE 3 – [ see http://electionaustin.com/pool-saga-part-3/ ]

Susana Almanza and Sabino Renteria, both candidates in District 3’s runoff, each filed a Fair Campaign Chapter campaign contract with the filing of their respective ballot applications. However, neither Almanza, nor Renteria, filed within the required 30 days of becoming a “candidate”, or on the same day as filing of a ballot application if that was earlier than the Treasurer’s Appt., as required by 2-2-11 (B) of the Austin City Code of Ordinances  which states:

§ 2-2-11 – VOLUNTARY CAMPAIGN CONTRACT.

(A) A candidate for mayor or city council may sign a contract with the City agreeing to abide by limitations on that candidate’s contributions and expenditures as specified in this article in exchange for benefits provided under this chapter.

(B) A candidate must personally sign the campaign contract the earlier of:

(1) 30 days after he or she becomes a candidate under the Texas Election Code; or

(2) the date the candidate files for a place on the ballot.

According to 251.001 (1) (A) of Texas Election Code Title 15, one way a person can become a “candidate” is “the filing of a campaign treasurer appointment, except that the filing does not constitute candidacy or an announcement of candidacy for purposes of the automatic resignation provisions of Article XVI, Section 65, or Article XI, Section 11, of the Texas Constitution;”. The idea of becoming a “candidate” via filing a Treasurer’s Appointment is common throughout various Ethics Commission documents, such as in Advisory Opinions, and is also cited in various court cases. The “…except that the filing does not constitute…” portion can be ignored, because it is specifically referring to Texas’ automatic resignation law, which can affect some current officeholders announcing a run for a different office, but is irrelevant for our discussion.  [ed note: corrected “255.001” typo to “251.001” at start of paragraph – thanks to Monica Guzman for pointing that out]

Almanza filed her campaign treasurer appointment on 3/31/2014. She signed and filed her campaign contract (which is the required paperwork to be eligible for Austin’s Fair Campaign Chapter funds) on 5/29/2014. Since that is more than 30 days after becoming a “candidate” (with the filing of the treasurer’s appointment), her campaign contract is invalid.

Renteria filed his campaign treasurer appointment on 5/13/2014. He signed his campaign contract on 7/24/2014 and he filed it on 7/30/2014. Both of those dates are more than 30 days since he became a “candidate”, making his campaign contract invalid.

Leslie Pool filed her campaign treasurer appointment on 7/10/2014. She signed and filed her campaign contract on 8/8/2014. That is within the 30 day requirement. I was unable to find any affirmative actions by Pool indicating that she was running for Austin City Council, prior to her treasurer’s appointment on 7/10/2014, therefore the treasurer’s appointment is indeed the point at which she became a “candidate”. A check of Pool’s website and related online searching shows that Pool followed the required disclaimer procedures detailed in the Fair Campaign ordinance. As far as I can tell, Pool attended the required debate forums (though someone should double-check me on that). Therefore, I believe Pool’s campaign contract is valid and she is eligible to receive all the funds in Austin’s Fair Campaign fund.

Voters may remember a few years ago when money from Austin’s Fair Campaign Chapter fund helped Tovo defeat Randi Shade in a runoff in 2011. Shade, apparently misunderstanding some of the provision’s stranger requirements, such as the disclaimer statement that candidates must (sometimes) put on their material, attempted to challenge Tovo’s claim, but ultimately lost since Tovo’s claim was 100% legal.

Interestingly, if you look back through the recent history of the Fair Campaign Chapter funds, you will note that someone manages to claim them every 3 years. Oddly enough, 2014 is roughly 3 years after 2011, based on my math.  Laura Morrison received the funds in 2008 and I believe Margot Clarke received the funds in 2005.

The Fair Campaign fund monies are built up year to year from election and lobbyist fees. Eventually the money builds up to a significant amount and those candidates (or campaign consultants) with longer memories will bite and run a campaign abiding by the restrictions of the Fair Campaign Chapter, in order to have a shot at the funds, which are only distributed to candidates involved in a runoff and who have followed, or were exempted from, the Chapter’s rules and requirements.

While I believe the ordinance is well-intentioned, it is in desperate need of revision. Leslie Pool followed the rules and she deserves the money, without any attached prejudice whatsoever, but I believe the law can be improved significantly. Additionally, there are some nasty loopholes that have yet to be legally tested. For example, the ordinance requires you to sign the contract, not to file it. Therefore, you could sign it the day you sign your Treasurer’s appointment, but not turn it in until you file your ballot application months later. Your competitors might notice the disclaimer on your website saying you do abide by the Fair Campaign Charter rules, but they could easily miss it and the City Clerk would have no evidence that you had signed it. Furthermore, the contract falls under civil contract law, where the idea of when a signature happens and is valid on a contract is already fairly mushy.

The wording of the Fair Campaign Chapter can be confusing – I didn’t get it right away. Candidates who agree to abide by the restrictions may choose to not actually follow those restrictions, but still claim to follow them on their website and materials, if other candidates enter the race in their district and those candidates choose to not follow the Fair Campaign Charter. Candidates following that electoral disclaimer jiu-jitsu will remain eligible for the funds as well. That confusing logic actually makes sense if you think about it a while, but it clearly confuses everyone (including Randi Shade).

The Almanza and Renteria campaigns were the only campaigns that filed invalid Fair Campaign Chapter campaign contracts and that also happened to make it to a runoff. However, there were many other council campaigns that also filed invalid contracts that never made it to the runoff. A couple of months ago I phoned city attorney Cynthia Tom, who helps out the Austin Ethics Review Commission with legal matters, in hopes of finding a way to get the Ethics Review Commission to issue a statement formally invalidating all of the campaign contracts that had been filed by council candidates that didn’t meet the 30-day “candidate” provision (of which I think there were approximately 15 to 20). My reasoning was that it would be better to invalidate the contracts prior to the Nov 4th election, thus avoiding invalid claims on the funds and a possible minor legal crisis, once runoff season started. Cynthia was very helpful and suggested a number of options, including filing an ethics complaint. In many ways, filing a complaint would have been a good thing. It would have, hopefully, awakened candidates to the idea that if they’re going to run for a position where they will be enacting ordinances, that they should at least be able to follow the ordinances themselves – and they should be able to fill out the paperwork properly (you can make a similar argument for campaign finance reports). Ultimately, I decided to wait until now and then write an article about it, rather than give the appearance of trying to torpedo campaigns via the use formal ethics complaints. However, it is worth noting that in addition to the problematic Fair Campaign contracts, council and mayoral campaign finance reports are often plagued with violations  – many have more than ten – far more than the one or two de minimis violations that have been filed with the Texas Ethics Commission or the Austin Ethics Commission by citizens (and operatives) so far.

I suggest campaigns take a day and review all of their filed reports and issue corrections before someone takes the time to issue a complaint with a more comprehensive listing of violations. Additionally, I recommend the new city council place on its agenda a note to review and revise Austin’s Fair Campaign Charter wording.

And, finally, I congratulate the Pool campaign on being the only campaign to properly follow the requirements and to, possibly, receive the runoff funds.

Dylan Tynan

Consultant, software developer, political wonk, etc.

Many years ago I worked for the Lee Cooke for Mayor campaign, but since then I have not worked for, nor given any money to, any political campaign.

Austin TX

10 Comments

  1. People seem to be paying a little more attention to this article than my previous. Now I wish I’d triple-checked everything before I published 🙂

    I’m still trying to track down the Fair Campaign numbers – I found them on Austin Finance Online once. once… watch it be $0, that would serve me right for not nailing it down first.

  2. I have not been able to find an up-to-date number from Austin Finance Online’s website. However, I was able to get the value of the Fair Campaign fund at the end of fiscal year 2013, which was $52,000. It tends to grow about $22,000 to $24,000 a year. I am not certain if all funds are deposited immediately or if there is some delay, so I would guess that the fund will come in somewhere between $65,000 and $75,000. That’s a bit less than the $80,000 I “remembered”, but still no small chunk of change — and perhaps my “memory” was correct and it will come in over $80K after all. Tomorrow I will attempt to get an exact amount from the city.

  3. Very helpful research. Nice job. Congrats to Leslie Pool for being sharp enough to see what six dozen other candidates and twenty consultants overlooked.

    • Thanks! I assume you saw it, but just in case, I wrote an update to this article as another post at http://electionaustin.com/pool-campaign-part-deux/
      It doesn’t resolve everything .. it’s the middle part of the trilogy .. hopefully we’ll have the finale on Monday.

  4. Is Pool eligible for the money if she loaned her campaign $40,500? I thought there was a cutoff of how much a candidate can loan the campaign and a cap on donations.

    • David,

      There are limitations “… on contributions and expenditures set forth in sections 2-2-12 and 2-2-13 of the City Code, …” I found no verbiage about loans/loan limitations within the Contract itself. Best source of info are cited City Code Sec 2-2-12 & 2-2-13.

  5. Dylan,

    About to send you lengthy message, but issues I raise may have already been (partially) addressed in Part Deux (which I have yet to read).

    … btw, compliance with Fair Campaign Contract is not a guarantee of matching funds (below). Fact was made crystal clear to me by City/Election Clerk staff.

    “In exchange for the consideration stated above, the City of Austin will provide available funds to the Candidate in accordance with section 2-2-64 of the City Code.” Further, the candidate can have no expectations on “… the amount of matching public funds that the Candidate will be eligible for under this Contract.” [Source: Fair Campaign Contract Section V The Obligations]

    • All that means is that the fund could have any amount of money in it and that you may have to split said money with other candidates in other races – possibly. So the fund might have $100, or $5,000, or $90,000.

      There is no “matching” by the way. It doesn’t matter how much money you have or have raised or will raise – that does not affect the awarded amount.

    • Thanks monica, for the email pointing out my “255.001” typo. You were correct, I meant “251.001”. fixed above.

  6. The Statesman published an article a few hours ago that says that the fund contains $83,366 and that the Clerk has notified Pool, Almanza, and Renteria that they will all 3 split the money.

    http://www.statesman.com/news/news/local/leslie-pool-susana-almanza-and-sabino-renteria-to-/nh7dW/

    While the Clerk said, again, that she does not interpret the law, someone there does, and in my judgement they have made a mistake, but, I am open to hearing their reasoning. The statesman article is pretty lengthy, so it looks like they did their homework. Fred Lewis, local Austin attorney, is quoted in the article and is said to be advising the Pool campaign on this.

    Fred is certainly an expert, so I must be misinterpreting the law I guess. Maybe I can call him and get him to explain how… Looks like Guzman will likely at least get the satisfaction of being correct on this particular item.

    I don’t see any way that I, personally, can challenge the city’s interpretation. An ethics complaint wouldn’t apply (based on my reading), and I wouldn’t have standing in court to challenge it – that could only be done by the other candidates.

    I sure would like to hear the Pool campaign’s/Fred Lewis’s reasoning on this…

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