Most everybody agrees the Texas Ethics Commission is ineffectual in enforcing state campaign laws, but some folks would like it to stay that way. After all, asking state lawmakers to pass legislation to fix it is a bit like banking on an Enron executive to take a voluntary lie detector test.
Houston has long been one of the trouble spots for campaign chicanery. Complaints in recent years have focused on former Harris County Republican chair Gary Polland's creative use of his party bank account and the web of political action committees of westside religious conservative Dr. Steven Hotze.
In advance of hearings later this month, the Texas Sunset Advisory Commission staff has issued a report calling for changes in the way the ethics commission investigates complaints. Unlike other agencies reviewed by the Sunset Commission, the ethics commission is in no danger of being terminated. Instead, the critique is aimed at improving performance. The study includes some of the reforms called for by critics such as ethics commissioner Mickey Jo Lawrence (see "Why This Hound Won't Hunt," by Tim Fleck, November 22, 2001).
The review starts off with the key complaint of citizen watchdog groups. They point out that the ethics staff can't conduct real investigations of campaign violations because of confidentiality restrictions in commission bylaws.
"Commission staff indicate they may not interview witnesses or investigate beyond talking to the respondent, the respondent's counsel, or the complainant," the Sunset report states. "To interview witnesses and investigate further puts the staff at risk of violating confidentiality and subjecting the staff to criminal and civil penalties."
The document recommends clarifying the restrictive bylaws to allow staff to conduct investigations without exposing themselves to legal risks. It also supports giving investigators the power to subpoena documents and other materials in the preliminary stages of a probe. It also advocates allowing the staff to share investigative information with the State Commission on Judicial Conduct and law enforcement agencies.
Another suggested reform is to permit the TEC staff to process campaign complaints at preliminary stages without requiring a vote of approval by the eight- member commission, which includes representatives of both parties. Current bylaws require that enforcement action be approved by six of the eight members.
Created in 1991, the commission is the product of a legislative compromise between reformers, who wanted to end chronic campaign scandals, and legislators, who feared it would become a partisan tool. The result has been a can't-do agency that has rarely exercised even its limited authority.
A study by the Austin-based Campaigns for People noted that the TEC, in the ten years of its existence, received 729 external sworn complaints, but has initiated no internal complaints, conducted no campaign audits and never subpoenaed a witness or document. It has never referred a complaint to a law enforcement agency. Only one complaint ever made it as far as a public hearing.
Commissioner Lawrence welcomes the Sunset recommendations. "If they will go ahead and amend the laws to allow the staff to have subpoena power at the preliminary hearing stage, that would be a tremendous help. That means we could investigate, and subpoena documents that we need. Right now, we just don't have enough authority."
Campaigns for People director Fred Lewis credits the Sunset staff report as a start toward reform but says the recommendations don't go far enough. He contends that the only way to make the ethics commission effective is to open the process to public scrutiny. The agency currently conducts business behind closed doors, issuing a public finding only at the end of an investigation.
"I don't know how you have accountability if the public cannot watch," reasons Lewis. "That's our theory at the courthouse. Everything is open unless you have a really good reason. That's accountability. The public can look for itself; lawyers and the press can look."
Lewis would also like to see the commissioners totally removed from authorizing staff to conduct preliminary investigations.
"The politically appointed board of the ethics commission needs to get out of the enforcement process," says Lewis. He points out that in other state agencies, the staff determines whether subpoenas are issued or hearings are held, and the board reviews the performance of the staff and agency at the end of the year.
Likewise, the commission's purse strings need to be removed from the lawmakers it may investigate. Lewis says there simply should be a baseline budget that may be increased annually for added workloads and inflation. "I think it's very difficult for the agency which is being funded by the legislature to regulate candidates and campaigns and contributors of the legislature."
Campaigns for People will provide free charter buses from Houston and Dallas for residents to attend the April 24 Sunset hearing in Austin on proposed TEC changes. For more information, call 512-472-1007.
"I think it's apparent to Houstonians what happens when laws exist but they are not enforced," says Lewis. "People who don't want to obey the law are just going to keep doing it and doing it."
Commissioner Lawrence hopes that the latest push for reforms will finally give the ethics commission the muscle to do its job.
"The issue is out in the public eye now, whereas before people didn't even know the problem existed," says Lawrence. "I'm very optimistic something is going to happen."
All that's needed now are a few brave lawmakers to carry the reform package at the next legislative session.
Enron's Favorite Judges
A survey by Texans for Public Justice finds that only one Houston civil district judge, Mark Davidson, took no campaign contributions from either Enron or its law firm, Vinson & Elkins, since 1998. Enron's favorite jurists were Martha Hill Jamison ($9,500) and Sherry Radack ($6,500). V&E's big recipients were Jane Bland ($24,900), Radack ($19,750) and Jamison ($16,050).
Meanwhile, Judge Pat Mizell, who received $9,500 in contributions from V&E two years ago, has resigned his bench to return to the loving embrace of his old firm as a V&E partner.
That move has set off a scramble among ambitious Houston attorneys for a gubernatorial appointment to the bench. Among names in the hopper: Katrina Grider of Grider & Associates and Grant Dorfman of Ogden, Gibson, White & Broocks.
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Back to Basics
If you've been wondering what former district judge John Devine is doing for a living since vacating his bench for an unsuccessful run for Harris County attorney, a recent legal publication provides a clue.
In the spring issue of the Briefcase, Devine is listed as a contact in an ad for the Core Funding Group L.P., a company that provides lawsuit financing.
Helping generate more lawsuits seems an odd enterprise for a conservative former judge whose party demonizes plaintiff's lawyers in general and the Texas Trial Lawyers Association in particular. Devine, who sold his plaintiff's practice caseload to John O'Quinn for a pretty penny when God allegedly told him to run for judge, has always exhibited a certain flexibility on the issue. Or maybe the Almighty told him the world needs more litigation.