I sent an email to the mayor and council a bit after 1pm on Monday, 11/18/2014. (I forgot to send it to the election clerk until the following morning – which is now today [Tuesday] as I write this..)
It is now after 6pm on Tuesday. Haven’t heard anything back from the city. Haven’t seen any mention (yet) of the funds being awarded. Not sure if I should send a followup email or not.
Anyway, next is my long email from Monday :
To Austin Mayor and All Council Members:
The Austin City Council must act immediately to prevent the distribution of Fair Campaign funds to ineligible candidates Susana Almanza and Sabino Renteria. The election clerk intends to distribute the funds sometime Tuesday (tomorrow).
According to an article in the Statesman, this Tuesday (tomorrow), Ann Franklin will distribute more than $83,000 from the Fair Campaign Fund, split into three equal shares, to current runoff candidates Susana Almanza, Sabino Renteria, and Leslie Pool. The city’s assessment of the eligibility of these three candidates is wrong – if the city proceeds, the city will violate the Fair Campaign Ordinance and distribute tens of thousands of dollars to ineligible candidates, right in the middle of a runoff campaign period.
Though all three candidates signed a Fair Campaign contract form, the forms signed by Almanza and Renteria are not valid contracts, because neither candidate signed the form within the time constraints defined in section 2-2-11 (B) of the Fair Campaign Ordinance. As a result, their contracts are not valid and neither candidate is eligible to receive Fair Campaign Funds.
Leslie Pool is the only candidate that signed the Fair Campaign contract within the required timeframe. Pool is the only candidate eligible to receive Fair Campaign funds – and she should receive the entire $83,000 plus.
ARTICLE 2. – VOLUNTARY LIMITATIONS ON CONTRIBUTIONS AND EXPENDITURES.
§ 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.
(C) Only a candidate who signs a campaign contract with the City will qualify for public funds from the Austin Fair Campaign Finance Fund under Article 7 of this Chapter (Austin Fair Campaign Finance Fund).
(D) A candidate who signs a campaign contract must report a contribution or expenditure during the first reporting period in which it is made and apply the contribution or expenditure to the candidate’s voluntary limits.
Source: Ord. 20080925-079.
In order to properly interpret 2-2-11 (B) (1), you need to know what makes a person a candidate under the Texas Election Code, which is detailed in 251.001 (1) of Title 15 of the Texas Election Code :
§ 251.001. Definitions
In this title:
(1) “Candidate” means a person who knowingly and willingly takes affirmative action for the purpose of gaining nomination or election to public office or for the purpose of satisfying financial obligations incurred by the person in connection with the campaign for nomination or election. Examples of affirmative action include:
(A) 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;
(B) the filing of an application for a place on the ballot;
(C) the filing of an application for nomination by convention;
(D) the filing of a declaration of intent to become an independent candidate or a declaration of write-in candidacy;
(E) the making of a public announcement of a definite intent to run for public office in a particular election, regardless of whether the specific office is mentioned in the announcement;
(F) before a public announcement of intent, the making of a statement of definite intent to run for public office and the soliciting of support by letter or other mode of communication;
(G) the soliciting or accepting of a campaign contribution or the making of a campaign expenditure; and
(H) the seeking of the nomination of an executive committee of a political party to fill a vacancy.
(A) thru (H) are examples of ways one can become a candidate under the Texas Election Code – they are simply examples, no one is superior to another, following any of them will all result in becoming a candidate under the Texas Election Code. In example (A) it states that one way to become a candidate is to file a campaign treasurer’s appointment. (Ignore the automatic resignation rules & candidacy portion – it’s not relevant). Aside from the law itself, which is clear, there are numerous Ethics Commission advisory opinions and documents, as well as court cases, firmly establishing that filing a treasurer’s appointment makes you a candidate.
Here are the filing dates for each of the various forms, for each of the three candidates. I have calculated the number of days from the filing of the treasurer’s report [ed: should be ‘appointment’ not ‘report’] to the signing of the Fair Campaign contract and included it in bold, below:
03/31/2014 – Susana Almanza treasurer’s appointment
07/24/2014 – Susana Almanza ballot application
05/29/2014 – Susana Almanza signed fair campaign contract (included w/the ballot app – scroll past the ballot app to fair campaign contract)
59 days from treasurer’s appointment filing to the signing of the Fair Campaign contract
[ed: Almanza publicly announced her candidacy in Jan 2014, so this 59 days number is low – it should be more than 100 – making her contract that much more invalid, if that were a thing … since it doesn’t change anything except making things more complicated to explain, I left it out of my email, but mention it here for posterity]
05/13/2014 – Sabino Renteria treasurer’s appointment
07/30/2014 – Sabino Renteria ballot application
07/24/2014 – Sabino Renteria signed fair campaign contract (included w/the ballot app – scroll past ballot app to fair campaign contract)
72 days from treasurer’s appointment filing to the signing of the Fair Campaign contract
07/10/2014 – Leslie Pool treasurer’s appointment
08/08/2014 – Leslie Pool ballot application
08/08/2014 – Leslie Pool fair campaign contract (included w/the ballot app – scroll past ballot app to fair campaign contract)
29 days from treasurer’s appointment filing to the signing of the Fair Campaign contract
As you can see, only Leslie Pool’s 29 day total falls within the 30-day signing requirement of 2-2-11 (B) (1).
Just to be clear, 2-2-11 (B) is a completely valid portion of the ordinance – there is no reason to ignore it. In fact, it is promoted by the city clerk via its reprinting in several places within the candidate packet, such as the candidate brochure, the election calendar document, and a complete reprinting of 2-2 itself. It makes no sense to have 2-2-11 (B) in the law, promote it to candidates via multiple avenues as an important requirement, then allow candidates who are in clear violation of 2-2-11 (B) to be eligible for funds, when 2-2-11 and other parts make it clear that that should not be possible.
Not only is 2-2-11 (B) important (as is all of 2-2-11), but it is actually a critical underpinning of the entire Fair Campaign Chapter. Without requirements and limits as to when a candidate can sign a Fair Campaign contract, the law would no [ed: ‘not’] make sense, candidates could game the system, etc. Indeed, if the city insists on ignoring the signing timeframe requirement of 2-2-11 (B), then there is nothing to stop any or all of the other current runoff candidates from signing a Fair Campaign contract today and staking a claim on a share of the funds to be distributed tomorrow. Due to the waiver section of the ordinance, any current runoff candidate signing a Fair Campaign contract right now, would have no need to follow any of the expenditure, contribution, or disclosure requirements of the Chapter – they could just get a chunk of money for nothing.
Failing to meet the requirements of 2-2-11 (B) (or 2-2-11 in general) means that one cannot receive Fair Campaign funds (C). The language of the ordinance is plain, obvious and it comports with the original intent of the lawmakers. There is no ambiguity, no conflict that would warrant ignoring 2-2-11 (B). While I do not intend to hire an attorney to fight this, I did check with two attorneys – off the record – both of whom confirmed my interpretation and conclusions.
For the record, I have no association with any of these candidates or campaigns. I am a 30 year resident of Austin, and a believer in Austin, its methods, and its people. Many years ago I worked for the Chamber of Commerce, in economic development, and later for the Lee Cooke for Mayor campaign. Between then and now I have not contributed civically. However, in the spirit of KLRU’s Speak Up Austin request for citizen involvement in the 10-1 transition and beyond, I am answering that call to action and have been trying to help out.
Despite posts, emails, and phone calls to the media, city clerk and city legal, I was unable to generate much interest in the 15 or so candidates who all signed invalid campaign contracts, due to the 30-day requirement, and what might happen if one or more of those candidates made it into a runoff. Now we are 1 day from finding that out unless someone gets interested and acts to prevent it.
Let’s avoid the embarrassment of illegally distributing Fair Campaign funds to ineligible candidates. Though the media has little incentive to help me publicize this problem and get it fixed before it happens, they have a lot of incentive to report on it once Austin distributes money to ineligible candidates. Let’s avoid tainting an otherwise smooth transition to 10-1, and let’s let exiting Council members leave on a positive note, not under fire for not properly interpreting an ordinance written by former Council members just a few years ago.
At least four of the current council members are past recipients of funds from Austin’s Fair Campaign Fund. I am hoping that will go a long way towards quickly addressing this issue.