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Watchdawg’s Recommendations for Reform of Texas Ethics Laws

 

Below is a verbatim copy of the Watchdawg’s recommendations for Ethics Reform submitted to Texas Speaker of the House Joe Straus, et al. I’m hopeful that these proposals will receive serious consideration as Mr. Straus embarks on an effort to reform the ethics system in Texas.
 
Dave Palmer
The Watchdawg
 

December 1, 2010

Texas Ethics Reform Recommendations/Proposals
 
Rep. Joe Straus – Texas Speaker of the House
 
Dear Rep. Straus:
 
Please accept my apologies for the length of the following recommendations; however, given recent developments I felt compelled to address these matters in detail.
 
Below you’ll find my recommendations/proposals for reform and changes to the Texas Ethics laws, most of which I trust you will find worthy of implementation. Copies are also being provided to your Democratic counterpart in the House and the leaders of the Senate. Courtesy copies are also being provided to Gov. Rick Perry and Travis County DA Lehmberg. Lastly, I have taken the liberty of posting it on my web site for review by all concerned Texans, which can be found at http://tinyurl.com/25fsr33.  The issues addressed are as follows:
 
I.          Introduction – Pages 1-2
II.         Payment of Ethics Fines and Statute of Limitations – Page2
III.        Double billing the State and pocketing proceeds – Pages 2-3
IV.       Reporting of candidate reimbursements to campaign – Page 3
V.        Reporting candidate reimbursements to Comptroller – Pages 3-4
VI.       Investigation of Ethics violations by Ethics Commission – Page 4
VII.      Per Diem Payments – Pages 4- 5
VIII.     Schedule T – In-kind-contribution disclosures – Page 5
 
I.    Introduction
 
In the recent past, the AP and the Houston Chronicle/San Antonio News-Express have reported on the unethical and/or illegal conduct involving Representatives Joe Driver and Larry Taylor respectively for actual and/or alleged double billing.
 
These are not the only legislators in Texas who are afflicted with a serious case of “Driver-ism.” There are more and I will be reporting on and/or filing appropriate complaints against them within the next several days.
 
Based on these and other transgressions over the years, the time has now arrived for a complete overhaul of the Ethics Laws to assure that all “loopholes” are eliminated and more importantly to guarantee that actual “sunshine” is accomplished via public disclosure of all campaign expenses and/or reimbursements made by the state.
 
II.    Payment of Ethics Fines and Statute of Limitations
 
Officeholders are permitted to pay ethics fines with campaign funds, which I find absurd in that the offender receives absolutely no punishment when found guilty of committing a criminal misdemeanor for converting campaign funds to personal use.
 
This is in stark contrast to legislation passed in Louisiana barring such conduct. One would like to think that Texans would like to be at least on par with the self-imposed ethics of Louisiana, right? This unwarranted law is analogous to the following:
 
Ø      John Smith is ticketed in Houston for doing 75 in a school zone
Ø      When in court he pleads poverty re: the $300 fine + costs
Ø      The judge tells him not to worry since George Soros and Bob “The Builder” Perry have jointly set up a cash fund of $500,000 to pay traffic fines for the indigent
Ø      Upon leaving the courthouse, John cheerfully speeds away in his 2002 corvette
 
Statute of Limitations
 
The statute of limitations for unlawfully converting campaign funds to personal use in Texas is two years. Put simply, if an officeholder is able to conceal his/her violation of the law for two years, he/she is able to not only escape liability for said criminal behavior but is permitted to retain the ill-gotten gains.
 
In Ohio the statute of limitations for such conduct is two years after the miscreant is no longer a public official. See ORC 2921.41 Theft in Office, ORC 2921.43, Soliciting or accepting improper compensation, and ORC 2901.13, Statute of limitations.
 
Put simply, if a public official in Ohio unlawfully pocketed travel expenses paid by the state in 1995, he/she could be criminally prosecuted in 2011. If this is good enough for the Buckeye state it ought to be good enough for the Lone Star state, right?
 
Recommendations/Proposals
 
  1. Legislation barring payment of ethics fines with campaign funds.
  2. Implementation of laws similar to Ohio lengthening the statute of limitations for converting campaign funds to personal use.
III.    Double billing the State and pocketing proceeds
 
Recently, the Travis County DA’s office opined that it was an open question as to whether it was a criminal offense for a legislator to bill and collect from the state travel expenses his/her campaign had in fact paid for. The DA’s office indicated that it would require further research on the matter before it could file any criminal charges
 
In my opinion, it would be frivolous for any officeholder to suggest that pocketing state funds for travel expenses that were paid by one’s campaign does not constitute fraud. Such conduct must be deemed to have been committed knowingly and intelligently with the intent to defraud the state. To suggest that a legislator could so act unknowingly wouldn’t pass the involuntary laugh test.
 
Recommendations/Proposals
 
Passage of appropriate statutes that define such conduct to constitute a criminal fraud perpetrated against the state of Texas.
 
IV.    Reporting of candidate reimbursements to campaign
 
The Ethics Commission does not mandate reporting of candidate reimbursements to one’s campaign as to payments received from the state. Although Schedule “K” is designated for this purpose, many legislators do not utilize it. This fact was recently confirmed by Rep. Larry Taylor and the Texas Ethics Commission in stories written by Gary Scharrer for the Houston Chronicle and the San Antonio News-Express.
 
Without mandatory reporting of said reimbursements, it is impossible for the public and/or the media to verify that a legislator has in fact made payments to his/her campaign for travel expense payments received from the state that were in fact originally paid with campaign funds. Put simply, the public/media is forced to take as true protestations from a legislator saying, “Trust me, I’m not a crook!”
 
Recommendations/Proposals
 
Mandate that all legislators/office holders be required to disclose all reimbursements received from the state along with defining the purpose and amount of same in Schedule “K” reports to the Ethics Commission.
 
V.    Reporting of candidate reimbursement claims to Comptroller
 
The State Comptroller’s office is not required nor does it have in place a policy allowing it to determine if a legislator’s request for travel reimbursement involves an expense that was initially paid by his/her campaign.
 
Via a review of a spreadsheet I recently received from the comptroller’s office listing all reimbursements as to all legislators from July 2007 to May 2010 and comparing them against campaign expenses, I was able to determine many instances of double billing.
 
Recommendations/Proposals
 
  1. The comptroller should be required to review campaign expenditures prior to issuing reimbursement checks to any officeholder to prevent double billing.
  2. State of Texas Travel Vouchers submitted by legislators for reimbursement by the state should be changed to include a declaration that the expense was originally paid by the campaign.
  3. Legislation requiring comptroller to post on its web site within 7 days all reimbursements made to officeholders for review by the public/media.
VI.    Investigation of Ethics Law violations by Ethics Commission
 
Presently, the Ethics Commission is prohibited from initiating an investigation involving violations of the ethics laws without first receiving a sworn complaint from a concerned citizen and/or watchdog organization.
 
This anomaly renders the Commission impotent to say the least. To suggest that it should continue to be barred from pursing an investigation on its own initiative is facially absurd. After all, it is the repository for all campaign finance reports.
 
Recommendations/Proposals
 
  1. The Ethics Commission to be empowered to initiate investigations of improper conduct on its own when a review of campaign reports justifies such action.
  2. The Commission to be required to thoroughly review all campaign reports for any violations of the Ethics laws and to act upon any provable violations.
  3. That the findings of any such investigations be published on the commission’s web site for public viewing.
VII.    Per Diem Payments
 
The law now allows for legislators living in the greater Austin area to collect per diem payments from the State. As we all know, per diem is meant to cover lodging and meal expenses for legislators during sessions held in Austin. Reps. Valinda Bolton, Dawnna Dukes and Senator Kirk Watson received $23,856 in state per diem payments for 2009 despite the fact that they resided in the Austin area. Obviously, none of them incurred any lodging expenses in Austin!
 
By way of example, California State Senate Pro Tem Darrell Steinberg who represents the Sacramento area does not receive nor does he qualify for per diem payments. The same is true of other California legislators that reside within 50 miles of Sacramento.
 
Recommendations/Proposals
 
Passing legislation that would prohibit any Austin area legislator from receipt of per diem payments from the state. 
 
VIII.     Schedule “T” – In-Kind-Contribution Disclosures
 
Texas Ethics Commission Schedule “T” reports allows an officeholder to declare (a) in-kind-contributions and/or (b) political expenditures for out-of-state travel. There is no requirement that the officeholder declare the actual dollar amount on these reports. Moreover, it is impossible to determine whether the individual disclosure is an “in-kind-contribution” verses a campaign expense for out-of-state travel.
 
Clearly, if a specific expenditure was in fact an “in-kind-contribution” from an outside source the public could then determine if an officeholder was guilty of double billing if he/she then sought reimbursement from the state for the same travel expense. The policy now in place prevents any concerned citizen and/or the media from making such a factual determination.
 
Recommendations/Proposals
 
  1. Schedule “T” revised for sole purpose of disclosing in-kind- contributions
  2. That all such disclosures contain specific amounts involved
Thanks for your time and attention to this serious matter and I look forward to you prompt response. And lastly, if there is anything I can do to assist you in fashioning appropriate changes to the ethics laws, please do not hesitate to contact me.
 
Sincerely,
 
Dave Palmer
The Watchdawg
Folsom, CA

 

 

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